       In the United States Court of Federal Claims
                                     No. 13-161C
                               (Filed August 11, 2014)
                              NOT FOR PUBLICATION


* * * * * * * * * * * * * * * * * *
                                   *
ROY SMITH, on his own behalf       *
and for others similarly situated, *
                                   *
                 Plaintiff,        *
                                   *
           v.                      *
                                   *
THE UNITED STATES,                 *
                                   *
                 Defendant.        *
                                   *
* * * * * * * * * * * * * * * * * *


                                        ORDER

        The matter before the Court is plaintiff’s motion for conditional class
certification and authorization to notify potential class members. For the reasons
given below, plaintiff’s motion is DENIED-IN-PART, as to conditional class
certification, and GRANTED-IN-PART, as to authorization to notify potential
additional plaintiffs. As explained more fully below, defendant is directed to
provide contact information for a limited group of individuals in order to notify
them of this action once the form of notice has been approved by the Court.

       Mister Smith, a former employee of the Veterans Canteen Service (VCS)
operated by the Department of Veterans Affairs (VA), filed a complaint seeking
compensation under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq.
The complaint consists essentially of the bare allegation that the VA misclassified
plaintiff as exempt from the overtime provisions of the FLSA and thus wrongfully
denied him pay for hours worked in excess of forty hours a week.

       After initial discussions between parties’ counsel in preparing their Joint
Preliminary Status Report (JPSR), the government indicated it did not oppose
conditional certification of a collective action to join additional consenting plaintiffs
who worked as an “Assistant Chief (Trainee/Intern)” or “Assistant Canteen Chief
(Intern)” (management intern) at any VCS restaurant and retail store within the
statute of limitations period, but reserved the right to move to decertify any joined
plaintiffs if it identified a basis to do so. JPSR at 2; see also 29 U.S.C. § 216(b);
Gayle v. United States, 85 Fed. Cl. 72, 77 (2008) (describing conditional certification
as step one of a judicially created two-step process commonly employed by courts for
certifying collective actions under the FLSA). Within one month the government
notified plaintiff’s counsel that it had changed its position and would only agree to
conditional certification of a class limited to management interns that worked at the
VCS facility in Temple, Texas where Mr. Smith had been employed. See Def.’s
Status Report at 1.

       One week later, on August 9, 2013, apparently disregarding defendant’s
changed position regarding conditional certification, plaintiff filed what he called an
“Unopposed Motion for Conditional Class Certification and Authorization to Mail
Notice to Potential Class Members” (Pl.’s Mot.). Plaintiff argued primarily that the
government’s former non-opposition to conditional certification of a nationwide class
provides sufficient basis to grant the motion. Briefing concerning this motion was
stayed until the Court resolved the government’s motion to transfer the case to a
district court. See Order (Mar. 24, 2014).

       Consistent with the position stated in its status report, defendant opposes
conditional certification to the extent that it would include management trainees
who did not work at the Temple, Texas VCS facility within the last three years. It
also maintains that the substance of plaintiff’s allegations is insufficient to meet
even the lenient standard demanded at the first step of the judicially crafted two-
step FLSA collective action certification procedure. See Gayle, 85 Fed. Cl. at 77.
When pressed on his continued failure to support his conditional certification
request with any evidence that there are similarly situated individuals, plaintiff
persisted in relying on the government’s former non-opposition as though it were an
admission.

       For collective actions brought under the FLSA, district courts have crafted a
two-step conditional certification procedure in which the plaintiff may move to
conditionally certify a class of similarly situated individuals and, after the
opportunity for discovery, the government may then move to decertify the class or
eliminate individuals who are not demonstrably similarly situated. Gayle, 85 Fed.
Cl. at 77; see 29 U.S.C. § 216(b). At the first step, because there usually has been no
opportunity for discovery, plaintiffs are merely required “to make a ‘modest factual
showing sufficient to demonstrate that they and potential plaintiffs together were
victims of a common policy or plan that violated the law.’” Gayle, 85 Fed. Cl. at 77
(quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). Once
discovery has concluded, if the defendant moves to decertify the class based on
evidence that has been gathered during the discovery process, the plaintiff must
“satisfy a more demanding criterion” to defeat the motion and proceed with the
collective action. Id.


                                         -2-
        Although it has been employed in a handful of cases in our court, see
McClendon v. United States, No. 12-81C, 2013 WL 285584, at *1 & n.4 (Fed. Cl.
Jan. 24, 2013) (collecting and discussing cases), the undersigned is not persuaded
that the judicially created two-step process is appropriate for our use. The two-step
procedure seems to have arisen from the mismatch between the opt-out procedure of
the normal Rule 23 class action and the opt-in procedure suggested by the text of
the FLSA. See Lusardi v. Xerox Corp., 99 F.R.D. 89, 92–93 (D.N.J. 1983) (“[I]n
contrast to the ‘opt out’ class action provided by Rule 23, the FLSA describes an ‘opt
in’ class action --- no one is a member of the class until written consent is given to
the court.”); 29 U.S.C. § 216(b) (requiring consent in writing to be filed with the
court in order to join a FLSA collective action). The Rules of the U.S. Court of
Federal Claims (RCFC), however, allow exclusively for opt-in class actions, creating
no substantive conflict with the FLSA. See Delpin Aponte v. United States, 83 Fed.
Cl. 80, 92 & n.27 (2008). There appears to be no reason why RCFC 23 may not be
used to advance FLSA claims. Id.

       Even if the Court were to use the two-step process, plaintiff has thus far
failed even under its low standard to demonstrate the existence of “similarly
situated” individuals. 29 U.S.C. § 216(b). 1 Given the skeletal nature of the
complaint, the Court cannot find sufficient allegations to allow this determination.
And even if other management interns have been classified exempt, as plaintiff
alleges, this is not enough to demonstrate that these individuals are similarly
situated for purposes of the FLSA --- there still must be some substantial
allegations, supported by evidence, that the classification was due to a common
decision, policy, or plan. See, e.g., Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 927 (D.
Ariz. 2010) (“[T]he mere classification of a group of employees --- even a large or
nationwide group --- as exempt under the FLSA is not by itself sufficient to
constitute the necessary evidence of a common policy, plan, or practice that renders
all putative class members as ‘similarly situated’ for § 216(b) purposes.”). 2




1 The Court is not persuaded by plaintiff’s argument that defendant’s earlier non-
opposition to conditional certification operates as an admission that there are
similarly situated individuals, or that the supposed “agreement” not to oppose
conditional certification could have bound defendant.
2 The fact that a defendant ultimately bears the burden of proving that employees
are properly classified as exempt, see Walling v. Gen. Indus. Co., 330 U.S. 545, 547–
48 (1947), does not help a plaintiff seeking to certify a collective action at the
preliminary stages of litigation. The plaintiff is still required to “show he is
similarly situated to the employees he proposes to include in the collective action
with respect to his claim that he [was misclassified].” Guillen v. Marshalls of MA,
Inc., 841 F. Supp. 2d 797, 801 (S.D.N.Y. 2012).

                                          -3-
       Although the government does not oppose conditional certification of a
limited class in this action, the Court declines to certify one at this time --- due to
the lack of support for conditional certification in our rules, and the likelihood that
such a small number of potential plaintiffs could easily be joined under RCFC 20.
But the Court would approve, however, of plaintiff obtaining the names and
addresses of employees who worked (within the relevant time frame) as
management interns at the Temple, Texas VCS facility, so that he could gauge their
interest in joining this action. See McClendon, 2013 WL 285584, at *2.

       Regarding the form of the notice to be sent to potential additional plaintiffs,
the Court finds that it should be modified in light of the denial of plaintiff’s motion
for conditional certification. Moreover, the Court is inclined to agree with plaintiff’s
approach regarding references to the use of other attorneys, see Pl.’s Reply at 9 &
A7, and with defendant’s concern that potential plaintiffs should be informed of the
possibility of costs being imposed on them if the suit is unsuccessful, see 28 U.S.C.
§ 2412(a); id. § 1920 (listing taxable costs). The notice may also indicate that such
costs may be handled through a fee arrangement between the joining party and the
party’s counsel.

       As explained above, plaintiff’s motion is DENIED-IN-PART as to conditional
class certification and GRANTED-IN-PART as to authorization to notify potential
additional plaintiffs. The parties’ counsel shall confer and submit a joint status
report on or by Tuesday, September 2, 2014, proposing a schedule for further
proceedings in this matter. That document should also include, for the Court’s
review and approval, the revised draft of the notice to be sent to potential plaintiffs
from the Temple, Texas VCS facility.

IT IS SO ORDERED.

                                        s/ Victor J. Wolski
                                        VICTOR J. WOLSKI
                                        Judge




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