       In the United States Court of Federal Claims
                                        No. 13-834C

                                   (E-Filed: June 2, 2014)

                                              )
DONALD MARTIN, JR., et al.,                   )
                                              )
                     Plaintiffs,              )
                                              )       RCFC 15(a)(2), Amendment
v.                                            )       of Pleadings “when justice so
                                              )       requires”
THE UNITED STATES,                            )
                                              )
                     Defendant.               )
                                              )

Heidi R. Burakiewicz, Washington, DC, for plaintiffs.

Sharon A. Snyder, Trial Attorney, with whom were Stuart F. Delery, Assistant Attorney
General, Robert E. Kirschman, Jr., Director, and Reginald T. Blades, Jr., Assistant
Director, Commercial Litigation Branch, Civil Division, Department of Justice,
Washington, DC, for defendant.


                                          ORDER

       Plaintiffs filed a motion for leave to file their Second Amended Complaint. Pls.’
Mot., May 8, 2014, ECF No. 29. The reasons offered for the requested leave were “to
add the names of over 900 new plaintiffs wishing to opt in to the litigation, to delete the
Back Pay Act claim asserted in the First Amended Complaint, and to add allegations
about individuals who worked overtime during the period from October 1 through
October 5, 2013.” Id. at 2. Plaintiffs signaled their intent to withdraw the Back Pay Act
claim in their response to defendant’s pending motion to dismiss, stating therein:
“Plaintiffs do not oppose the Government’s motion to dismiss their claims under the
Back Pay Act, and . . . will seek leave to file [a Second Amended Complaint] drop[ping]
Count IV.” See Pls.’ Opp. at 4, Apr. 11, 2014, ECF 26.

      Although plaintiffs do not address the Back Pay issue substantively in their
response to the motion to dismiss, we infer from plaintiffs’ subsequently filed request to
withdraw the claim that either plaintiffs cannot support that claim or that no remedy
would be available even if a violation of the Act had occurred. Defendant asserted in its
motion to dismiss, inter alia, that because plaintiffs have been paid for the work at issue,
the only potential remedy available to plaintiffs under the Back Pay Act would be
interest. Def.’s Mot. at 35, Mar. 11, 2014, ECF No. 23. But the Act does not authorize
the payment of interest if a payment of owed back pay occurs within thirty days of an
unwarranted denial of payment. Id. (citing 5 U.S.C. § 5596(b)(2)(B)(i); 5 C.F.R. §
550.806(a)(2)). There is no dispute that plaintiffs in the instant case were paid
approximately two weeks after their scheduled paydays. See Pls.’ Opp. 2–3; Def.’s Mot.
4. Thus, pursuit of a Back Pay Act claim on the facts of this case would appear futile.

       Defendant opposes the filing of the Second Amended Complaint because: (1)
defendant prefers a dismissal with prejudice of Count IV in lieu of plaintiffs’ proposed
amendment that simply omits the claim; and (2) the Second Amended Complaint seeks to
add more than 900 opt-in plaintiffs, some of whom, defendant argues, would be ineligible
for inclusion in the collective action if the court were to grant defendant’s pending
motion to dismiss Count III, Failure to Pay FLSA-Exempt Employees Overtime. See
Def.’s Opp., May 27, 2014, ECF No. 34.

       Defendant contends that plaintiffs should be required to dismiss their Back Pay
Act claim with prejudice so that plaintiffs “who will have had the opportunity in this
proceeding to fully litigate the claim, will not have the opportunity at some time in the
future to re-assert the claim in another case,” creating potential inefficiencies. Id. at 2.
As support for its argument that plaintiffs should be forced to dismiss their claim with
prejudice, defendant cites to the court’s observation in a recent ruling in the case of
Kandel v. United States, No. 06-872, 2014 WL 1708444 (Fed. Cl. Apr. 30, 2014), that
piecemeal litigation is generally disfavored. See id. at *5.

        In Kandel, the court declined to rule on dispositive issues of law pertinent to only
a few plaintiffs in a class action on the ground that such a limited ruling would have been
inefficient. Id. The instant motion presents in a wholly different context. Here, plaintiffs
request the withdrawal of a claim, instead of court action on a matter—as was sought in
Kandel. Thus, the court’s discussion in Kandel of piecemeal litigation is inapposite in
this circumstance.

       The rules of this court provide that “[t]he court should freely give leave [to a party
to amend its pleading] when justice so requires,” RCFC 15(a)(2), and the Supreme Court
has observed:

       In the absence of any apparent or declared reason—such as undue delay,
       bad faith, or dilatory motive on the part of the movant, repeated failure to
       cure deficiencies by amendments previously allowed, undue prejudice to
       the opposing party by virtue of allowance of the amendment, futility of



                                               2
       amendment, etc.—the leave sought should, as the rules require, be ‘freely
       given.’

Foman v. Davis, 371 U.S. 178, 182 (1962).

        Of the enumerated reasons for denying leave to amend a pleading, only prejudice
is alleged by the government here. Specifically, defendant contends that it might be
subject to “potential prejudice in the future” if plaintiffs are permitted to amend their
complaint “because it would require continued litigation of a claim that should have been
resolved in this litigation.” Def.’s Opp. 2. The court disagrees. Plaintiffs have made no
arguments in support of their Back Pay Act claim at this stage, and this litigation has
progressed only to the court’s consideration of a motion to dismiss. The court will not
force the litigation—nor the dismissal with prejudice—of an issue plaintiffs wish to
withdraw from the lawsuit at this early stage. 1

       Defendant’s second point of opposition to the amended pleading is that the
additional opt-in plaintiffs should not be added at this time because some may turn out to
be dismissed from this action if the court grants the government’s motion to dismiss
FLSA-exempt plaintiffs. The court has not yet ruled on the government’s motion to
dismiss, and defendant has not yet responded to plaintiffs’ motion to certify the collective
action. Thus, it would be premature to exclude potential opt-in plaintiffs at this stage on
the basis that they might not be able to continue as plaintiffs in the lawsuit.

      None of the concerns described by the Supreme Court in Foman are present here,
and defendant’s arguments are unavailing. Plaintiffs’ motion for leave to file their
Second Amended Complaint is GRANTED. The Second Amended Complaint is
deemed filed as of today.



       IT IS SO ORDERED.
                                                 s/ Patricia E. Campbell-Smith
                                                 PATRICIA E. CAMPBELL-SMITH
                                                 Chief Judge




1
      Any subsequent reversal in plaintiffs’ current position on the issue would be
appropriately and closely scrutinized.


                                             3
