        In the United States Court of Federal Claims
                                              No. 13-457C
                                         (Filed: May 28, 2014)

* * * * * * * * * * * * * * * * * *
                                  *
TAMARA BARRY, et al.,             *                               FLSA; 29 U.S.C. § 216(b);
                                  *                               Collective Action; Conditional
                Plaintiffs,       *                               Certification; Class Definition;
                                  *                               Class Notice; Statute of Limitations
     v.                           *
                                  *
THE UNITED STATES OF AMERICA,     *
                                  *
                Defendant.        *
                                  *
* * * * * * * * * * * * * * * * * *

        Jacob Yaakov Statman, Snider and Associates, LLC, Baltimore, MD, for plaintiffs

        Martin Mason Tomlinson, Civil Division, United States Department of Justice,
        Washington, DC, for defendant

                                       OPINION AND ORDER

KAPLAN, Judge:

        Plaintiffs are current and former GS-1801 Immigration Officers (IOs) and GS-0132
Intelligence Research Specialists (IRSs) with the United States Department of Homeland
Security (DHS), United States Citizenship and Immigration Services (USCIS) Office of Fraud
Detection and National Security. Until February 12, 2012, USCIS designated plaintiffs’
positions as exempt 1 from the overtime provisions of the Fair Labor Standards Act (FLSA), 29
U.S.C. §§ 201-219, as amended by the Portal-to-Portal Act, 29 U.S.C. §§ 251-262. In this suit,
they seek backpay and liquidated damages under § 216(b) for the hours they worked in excess of
forty per week during the time that they were designated as FLSA exempt, prior to February 12,




1
 The FLSA exempts from overtime pay requirements, among others, “any employee employed in a bona fide
executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1).
2012. 2 Plaintiffs also allege that the USCIS willfully violated the FLSA in designating them as
exempt, thus extending the statute of limitations under § 255(a) 3 from two years to three years.

        Currently pending before the court is the plaintiffs’ motion for conditional certification of
a collective action under § 216(b) of the FLSA and for authorization to mail notice to potential
class members. The government opposes the motion for conditional certification, primarily on
the ground that, because the government no longer disputes plaintiffs’ non-exempt status, no
common issues of law or fact unite the proposed class, and only individualized inquiries remain
for adjudication. The government also finds fault with plaintiffs’ proposed class definition and
class notice. For the reasons that follow, the Court grants plaintiffs’ motion for conditional class
certification, adopts a modified class definition that addresses the government’s concerns, and
approves the notice attached to this Opinion for distribution to potential class members.

                                                DISCUSSION

    I.       LEGAL STANDARDS FOR CONDITIONAL CERTIFICATION OF AN FLSA
             COLLECTIVE ACTION

         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). To participate in the collective action, plaintiffs must “opt in”—
that is, they must give “consent in writing[,] . . . and such consent is filed in the court in which
such action is brought.” Id.

         This court has adopted a two-step approach for determining whether certification of a
collective action is appropriate. Whalen v. United States, 85 Fed. Cl. 380, 383 (2009). This
approach “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.” Id. (citing Cameron-Grant v. Maxim Healthcare Servs., 347 F.3d 1240, 1243 n.2 (11th
Cir. 2003) and Heckler v. DK Funding, 502 F. Supp. 2d 777, 779 (N.D. Ill. 2007)). The first
step, which plaintiffs ask the Court to undertake here, is known as conditional certification, and it
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. Whalen, 85 Fed. Cl. at 383.

       Plaintiffs’ burden at the conditional certification stage is low. Specifically, plaintiffs
need only “make a ‘modest factual showing,’” based on “the pleadings, affidavits, and other

2
  Section 207(a)(1) of the FLSA provides that “no employer shall employ any of his employees . . . for a workweek
longer than forty hours unless such employee receives compensation for his employment in excess of the hours
above specified at a rate not less than one and one-half times the regular rate at which he is employed.”
3
 Section 255(a) provides that “[a]ny action . . . for . . . unpaid overtime compensation . . . under the Fair Labor
Standards Act . . . may be commenced within two years after the cause of action accrued, and every such action shall
be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action
arising out of a willful violation may be commenced within three years after the cause of action accrued.”


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available evidence,” that potential class members are “similarly situated.” Gayle v. United
States, 85 Fed. Cl. 72, 77 (2008) (citing Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261
(S.D.N.Y. 1997) and Cuzco v. Orion Builders, Inc., 477 F. Supp. 2d 628, 632 (S.D.N.Y. 2007)).
The Supreme Court has indicated that potential class members are similarly situated if they share
“common issues of law and fact arising from the same alleged [prohibited] activity.” Hoffman-
La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989).

   II.       APPLICATION OF THE STANDARDS FOR CONDITIONAL
             CERTIFICATION

         Plaintiffs have made the required “modest showing” that the proposed class members are
similarly situated. Thus, the proposed class members occupy the same positions in the same
specific job series under the General Schedule. In addition, as the government has conceded, all
proposed class members were previously misclassified as FLSA-exempt employees, presumably
on the same basis. The government’s argument that this concession eliminates any common
questions of law or fact among the class members, Def.’s Resp. 6-7, is meritless.
Notwithstanding the government’s concession that it previously misclassified the plaintiffs’
positions as FLSA exempt, there remain two significant questions common to the class: (1)
whether the government must pay class members liquidated damages (which can be avoided
only if the government proves that it previously designated these employees as FLSA exempt in
good faith and with reasonable grounds for believing that such designation was consistent with
the FLSA (29 U.S.C. § 260)); and (2) whether the government willfully violated the FLSA so
that a three-year (rather than two-year) statute of limitations applies.

         Nor is there any merit to the government’s argument that individualized questions
regarding how much compensation each employee is due overwhelm any common questions,
thus defeating the purpose of a collective action to “yield a more efficient or affordable
resolution” of employees’ claims. See Def.’s Resp. at 9. Individualized damages determinations
must be made in virtually every FLSA case involving multiple plaintiffs; if the existence of
individual questions regarding the amount of damages due could defeat certification of a
collective action, section 216(b)’s provision for collective actions would be rendered null.
Indeed, even in the Rule 23(b)(3) class action context, in which standards for certification are
much more stringent, individualized issues of damages do not preclude class certification as long
as “the damages sought are the result of the class-wide injury that the suit alleges.” Gomez v.
Tyson Foods, Inc., 295 F.R.D. 397, 402 (D. Neb. 2013) (quoting Butler v. Sears, Roebuck &
Co., 727 F.3d 796, 799 (7th Cir. 2013)); see also Thompson v. Bruister & Assocs., 967 F. Supp.
2d 1204, 1217-18 (M.D. Tenn. 2013); Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 130
(S.D.N.Y. 2011). Here, while damages among class members may vary in amount because some
members worked more overtime than others, all damages claimed are the result of the class-wide
misclassification of employees as exempt from FLSA requirements.

   III.      THE DEFINITION OF THE CLASS
          The plaintiffs have submitted the following proposed definition of the conditional class:

          All past or present employees of Defendant from February 12, 2009 until the
          present (the “Claims Period”) who: (1) at any time during the Claims Period

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       worked within the United States; (2) encumbered at any time during the Claims
       Period a GS-1801 Immigration Officer (“IO”) or GS-0132 Intelligence Research
       Specialist (“IRS”) position within the U.S. Department of Homeland Security,
       U.S. Citizenship and Immigration Services Office of Fraud Detection and
       National Security; and (3) had their FLSA exemption status converted from
       exempt to non-exempt.

Joint Submission 1, ECF No. 25.

        The government’s first objection to this definition is based on the fact that “it
encompasses employees who did not work in the same regional offices under the same
timekeeping and compensation procedures as the named plaintiffs.” Joint Submission 2; see also
Def.’s Resp. 12-13. The government observes that the plaintiffs “have not identified any
common method or plan for timekeeping regarding hours worked, or any common methodology
for providing compensation to IOs and IRSs who worked more than 40 hours per week in the
relevant time period.” Def.’s Resp. 12-13.

        This objection is clearly without merit. The government does not deny that employees in
the designated positions were subject to a nationwide policy under which they were not
compensated at FLSA-required overtime rates because their positions had been, on a nationwide
basis, designated FLSA exempt. Variations in the methods of timekeeping or of assigning
overtime work from region to region or supervisor to supervisor have no apparent bearing on the
adjudication of the liability issues that are common to the proposed nationwide class, which are
based on that nationwide policy.

         The cases cited by the government in support of this objection, Def.’s Resp. 13, are easily
distinguishable from this one. In those cases, certification was denied because the plaintiffs
failed to provide any evidence of the existence of a nationwide policy that affected all members
of the class. See Gayle, 85 Fed. Cl. at 78-79 (conditional class certification denied because
plaintiffs failed to provide any evidence of a nationwide policy of denying overtime
compensation to per diem nurses at the VA); Briggs v. United States, 54 Fed. Cl. 205, 206-07
(2002) (no conditional class certification based on claim that Census employees in a number of
locations had been denied FLSA overtime pay where there was no allegation of a common
management practice or policy that served as the basis for the denial of such pay). By contrast,
in this case, the government does not deny that the decision to exempt these employees’
positions from the FLSA was based on a nationwide policy.

        In addition to its objection to the nationwide scope of the proposed conditional class, the
government objects to the use of February 12, 2009 as the beginning date for the claims period
because use of that date would encompass potential opt-in plaintiffs who are barred from
participating by the statute of limitations. Def.’s Resp. 14-15. It notes that the statute of
limitations for FLSA claims is three years at most (29 U.S.C. § 255(a)) and suggests that “the
form of notice be addressed to only those employees employed by the agency ‘within three years
of the date of th[is] notice.’” Def.’s Resp. 15 (quoting Doucoure v. Matlyn Food, Inc., 554 F.
Supp. 2d 369, 373 (E.D.N.Y. 2008)).



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        The government’s point is well taken. The class definition should be limited to those
whose claims are not barred by the statute of limitations, which is at most three years. In that
regard, the Court is not persuaded by the plaintiffs’ reliance on a regulation issued by the Office
of Personnel Management (OPM) (5 C.F.R. § 551.702) which governs the pursuit of FLSA
claims through an OPM-administered claims procedure. See Pls.’ Reply 4. Plaintiffs note that
the government has acknowledged that it had already received fifty-seven such administrative
claims for backpay under the FLSA before this suit was filed and contend that—as to these
individuals—the OPM regulation requires that the three-year look-back period begin from the
date that the administrative claims were filed. Id. (citing 5 C.F.R. § 551.702(c) (providing that a
claimant “may preserve the claim period” for OPM’s administrative procedure “by submitting a
written claim either to the agency employing the claimant during the claim period or to OPM”)).

        Of course, an agency regulation cannot extend or alter the statute of limitations for
actions brought in court that is set forth in the FLSA, and the OPM regulations do not purport to
do so. In fact, the regulations themselves explicitly state that “[f]iling a claim with an agency or
with OPM does not satisfy the statute of limitations governing FLSA claims filed in court.” 5
C.F.R. § 551.703(c). Plaintiffs’ reliance on the OPM regulation is, accordingly, unavailing; any
individuals with pending administrative claims who choose to opt into this lawsuit will be
entitled to recover in this Court for, at most, a claims period that begins three years before they
opt into the case.

         Accordingly, the Court adopts the following as the definition of the conditional class:

         All past or present employees of Defendant from three years prior to the date of
         the current notice until the present (the “Claims Period”) who: (1) at any time
         during the Claims Period worked within the United States; (2) encumbered at any
         time during the Claims Period a GS-1801 Immigration Officer (“IO”) or GS-0132
         Intelligence Research Specialist (“IRS”) position within the U.S. Department of
         Homeland Security, U.S. Citizenship and Immigration Services office of Fraud
         Detection and National Security; and (3) had their FLSA exemption status
         converted from exempt to non-exempt.

   IV.        THE NOTICE

        The plaintiffs and the government have worked together to prepare a Notice regarding the
rights of potential plaintiffs to opt into this lawsuit. There remain two areas of disagreement
between the parties. First, the government objects to including on the first page of the Notice at
the top of the page a bolded, capitalized caption stating that “THIS NOTICE AND ITS
CONTENTS HAVE BEEN AUTHORIZED BY THE UNITED STATES COURT OF
FEDERAL CLAIMS.” See Def.’s Resp. 15-16. It contends that the placement and form of this
sentence improperly imply court endorsement and encouragement of plaintiffs to opt into the
suit. Id. The government has submitted an alternative sample notice in which this caption
appears on the last page of the Notice and is followed by a sentence stating that “THE COURT
HAS TAKEN NO POSITION IN THIS CASE REGARDING THE MERITS OF EITHER
PLAINTIFF’S CLAIMS OR DEFENDANT’S DEFENSES.” Def.’s Resp. Attach. A. Plaintiffs
prefer that the caption appear on the first page “so that any potential class member immediately


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recognizes that the Court has authorized the mailing and not be under the false impression that
the letter is junk mail or should be summarily thrown away.” Pls.’ Reply 5.

         The plaintiffs’ point is well taken. The Court concludes that the caption as written and in
the context of the entire notice does not imply any court endorsement of the lawsuit itself. In
fact, the proposed notice contains a sentence on page one that explicitly states that “no rulings on
the merits of this case have been made.” Joint Submission Ex. 1.

         The second point of contention concerns a statement on page four of the proposed Notice
which states that federal law prohibits retaliation for taking part in this lawsuit or exercising their
rights under the FLSA and advises persons who believe that they have suffered such retaliation
to contact counsel for the plaintiffs. The government objects to the sentence advising individuals
to contact plaintiffs’ counsel on the grounds that it “direct[s] individuals not necessarily related
to plaintiffs’ claims to plaintiffs’ counsel.” Def.’s Resp. 18. The Court agrees with the
government on this point: it is sufficient to advise recipients of the Notice of their right to be free
of retaliation, without explicitly directing them to plaintiffs’ counsel for assistance.

                                          CONCLUSION

        For the foregoing reasons, the plaintiffs’ motion for conditional certification of a
collective action is GRANTED, and the Notice set forth in Attachment A to this opinion is
approved for distribution.

       IT IS SO ORDERED.


                                                       s/Elaine D. Kaplan
                                                       ELAINE D. KAPLAN
                                                       Judge




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