        In the United States Court of Federal Claims
                                      No. 13-834C
                              (E-Filed: October 15, 2015)

                              NOT FOR PUBLICATION

                                         )
DONALD MARTIN, JR., et al.,              )
                                                Motion for Equitable Tolling; Fair
                                         )
                                                Labor Standards Act (FLSA);
                     Plaintiffs,         )
                                                Applicable Statute of Limitations;
                                         )
                                                Commencement of Action for Opt-In
v.                                       )
                                                Plaintiffs; Filing of Consent Forms;
                                         )
                                                Delay in Issuance of Notice; Factual
THE UNITED STATES,                       )
                                                Circumstances Not Warranting
                                         )
                                                Equitable Tolling
                     Defendant.          )
                                         )

Heidi R. Burakiewicz, Washington, D.C., for plaintiffs.

Joseph E. Ashman, Trial Attorney, with whom were Benjamin C. Mizer, Principal
Deputy Assistant Attorney General; Robert E. Kirschman, Jr., Director; and Reginald
T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant.

                                   OPINION AND ORDER

        Before the court is plaintiffs’ motion for equitable tolling of the statute of
limitations for certain claims to be brought under the Fair Labor Standards Act
(FLSA), Pls.’ Mot. 19–20, June 24, 2015, ECF No. 87-1, and the parties’ responsive
briefing thereto, Def.’s Resp. 29, July 1, 2015, ECF No. 89; Pls.’ Suppl. Br., Aug. 14,
2015, ECF No. 99; Def.’s Suppl. Resp., Aug. 21, 2015, ECF No. 100; Pls.’ Reply,
Sept. 1, 2015, ECF No. 101.

       Defendant sent approximately 300,000 current and former government
employees notice of this collective action in March and April 2015. Defendant,
however, inadvertently omitted sending this notice to approximately 18,300
employees, but subsequently sent notice in August 2015. Plaintiffs seek to equitably
toll—for approximately a five-month period—the statute of limitations for the claims
of those employees receiving the August notice. Defendant opposes plaintiffs’
motion, arguing both that equitable tolling of the statute of limitations under the FLSA
is unavailable as a matter of law, and that even if it is, plaintiffs do not qualify as their
injuries were not inherently unknowable at the time of accrual.

        Having carefully considered the parties’ briefing and this record, the court finds
that it need not decide whether the limitations period for FLSA claims is subject to
equitable tolling. Instead, the court assumes the availability of equitable tolling for the
limited purpose of ruling on plaintiffs’ motion, and finds that such tolling is not
warranted in these circumstances. For the reasons more fully discussed below,
plaintiffs’ motion is DENIED.

I.     Background

      For ease of reference, only those facts relevant to the issue of equitable tolling
now before the court are recited below.

        Plaintiffs are current and former government employees who allege they were
not paid timely for the work they performed during the October 2013 government
shutdown. Their claims were conditionally certified as a collective action on October
16, 2014. See Condit. Certif. Order, ECF No. 46. Between March and April 2015,
defendant provided government-wide notice of this action (Spring 2015 Notice) to
nearly 300,000 current and former government employees across 32 agencies and 123
agency components. Def.’s Resp. 10. To participate in the action, each potential
collective action member was to submit to plaintiffs’ counsel a signed consent form by
June 29, 2015. See Order 2, ECF No. 67. Plaintiffs’ counsel in turn was afforded until
September 28, 2015 to file with the court all properly executed consent forms. See
Order 1, ECF No. 73; Order, ECF No. 78; see also Condit. Certif. Order ¶¶ 10–11
(setting forth the agreed upon timeframes for establishing the opt-in date and the
consent form filing date).

         On June 12, 2015, the parties apprised the court that the notices had not been
sent to a number of belatedly identified potential collective action members. See
Order 1, ECF No. 83; Def.’s Mot. 2–4, ECF No. 86 (explaining that certain current
and former employees were erroneously omitted from the lists prepared by four federal
entities during the process of identifying potential collective action members). The
parties agreed that notice should be sent to this group of current and former
government employees who had not been identified as potential collective action
members before defendant sent the Spring 2015 Notice regarding the pending action.




                                               2
       The parties, however, could not agree as to whether notice should also be resent
to those current and former employees who were sent the Spring 2015 Notice initially
but—for a number of reasons—allegedly failed to receive it.1 The parties filed cross-
motions and responsive briefing regarding the scope and extent of additional notice
required, see ECF Nos. 86, 87-1, 89–90, and on July 30, 2015, the court conducted a
telephonic status conference with the parties to address the issues as briefed, see ECF
Nos. 95–96.

        After the status conference, the court directed defendant, by order dated July
31, 2015, to send notice only to those belatedly identified potential collective action
members.2 See Order ¶ 1, ECF No. 96. The court specifically directed defendant:
(1) to complete the transmission of notice within ten days of the issuance of the court’s
order; and (2) to file a notice that it had done so. Id. ¶ 2. The court also granted the
parties’ joint request for a sixty-day opt-in period, and established October 9, 2015 as
the revised opt-in date. Id. ¶¶ 4–5. In addition, the court granted plaintiffs’ unopposed
request to extend to January 7, 2016 the date for filing consent forms. Id. ¶¶ 6–7. The
court deferred ruling on plaintiffs’ equitable tolling request pending submission of
further briefing by the parties. See id. at 2.




1
       Plaintiffs sought re-issuance of the Spring 2015 Notice, asserting that certain
notices sent by email were rendered ineffective because the potential collective action
members either were informed by agency management that the notices were a phishing
scam, or were otherwise dissuaded from reading the notice due to the unfamiliarity of
the sender. See Pls.’ Mot. 9–12. Plaintiffs added that other potential collective action
members might not have received the notice due to their agencies’ aging email
policies, in particular those policies directing the automatic deletion of email from
employee inboxes within a certain number of days. See id. at 11.
2
        The court thus granted defendant’s request to limit the sending of notices to the
approximately 18,300 current and former government employees who were not
identified as potential collective action members until after defendant sent the Spring
2015 Notice, see Tr. of Status Conf., July 30, 2015, ECF No. 97 (estimating the total
number of belatedly identified potential collective action members as 18,300), and
denied plaintiffs’ corresponding request to resend the Spring 2015 Notice to all
potential collective action members to whom that notice was sent initially, see Order 2,
ECF No. 96.


                                             3
       The court, however, noted:

       Plaintiffs’ FLSA claims accrued on various dates in October 2013.3
       Because neither the applicable limitations period (whether two or three
       years),4 nor the issue of equitable tolling has been resolved yet, plaintiffs
       who file their consent forms after the pertinent dates this October may be
       time-barred.5 See 29 U.S.C. §§ 255(a), 256.

Id. at 2 n.1 (footnotes added).




3
        As to claim accrual, the court explained in its July 2014 ruling that for
limitations purposes, plaintiffs’ claims accrued when plaintiffs failed to receive—on
their regularly scheduled paydays—the pay earned for work performed during the
government shutdown of 2013. See Martin v. United States, 117 Fed. Cl. 611, 617
(2014) (“Under the ‘usual rule,’ an FLSA claim accrues at the time of a missed regular
payday and, . . . a [FLSA] violation occurs at that same time.”). Here, plaintiffs’
claims accrued on various dates in mid-October 2013, because “depending on the
employee, the [regularly] [s]cheduled [p]ayday was Friday, October 11, 2013;
Tuesday, October 15, 2013; or Thursday, October 17, 2013.” Id. at 614 (citing 2d Am.
Compl. ¶ 21, June 2, 2014, ECF No. 29-1).
4
        The applicable limitations period turns on whether the FLSA violations are
found to be “willful.” See Adams v. United States, 350 F.3d 1216, 1229 (Fed. Cir.
2003) (“The statute of limitations for FLSA violations is two years, ‘except that a
cause of action arising out of a willful violation may be commenced within three years
after the cause of action accrued.’” (quoting 29 U.S.C. § 255(a))). The court has yet to
rule on this issue.
5
        When an action is “commenced” under the FLSA for statute of limitations
purposes differs for named plaintiffs and opt-in plaintiffs. 29 U.S.C. § 256. For
named plaintiffs, an action is deemed to have commenced on the date the complaint is
filed, provided the plaintiff is specifically named in the complaint and the plaintiff’s
written consent to become a party plaintiff is filed with the complaint. 29 U.S.C. §
256(a). For opt-in plaintiffs, the mere submission of a signed consent form to
plaintiffs’ counsel does not commence the action for limitations purposes; rather, the
action is “considered to be commenced” when that individual claimant’s written
consent form is filed with the court. 29 U.S.C. § 256(b). Thus, the claims of opt-in
plaintiffs whose written consent forms are filed with the court after the expiration of
the applicable limitations period are time-barred.


                                              4
       Since the issuance of the court’s July 31, 2015 order, defendant sent notices to
the belatedly identified potential collective action members in early August 2015, and
has certified to the court that it has done so (August 2015 Notice). See ECF No. 98
(representing that “[t]ransmission of additional notice was completed by August 7,
2015”).

       On September 28, 2015, plaintiffs filed over 20,000 written consent forms with
the court, ECF Nos. 104–107, and thousands more on October 8, October 9, October
13, and October 15, 2015, ECF Nos. 110–124.

II.    Discussion

       Plaintiffs ask the court to equitably toll the statute of limitations for the
belatedly identified potential collective action members to whom defendant sent notice
in August 2015 (August 2015 Notice Recipients). See Pls.’ Reply 7. Plaintiffs request
a five-month period of tolling, specifically from July 31, 2015, the date of the court’s
order directing defendant to send additional notices, until January 7, 2016, the date by
which plaintiffs must file with the court copies of signed consent forms. See id.

        Assuming the availability of equitable tolling for the limited purpose of ruling
on plaintiffs’ pending motion,6 plaintiffs have failed to demonstrate that equitable
tolling is appropriate under the particular circumstances of this case.

        While “[t]he question of whether equitable tolling is allowed under the FLSA
has not been resolved by the Supreme Court or the Federal Circuit,” Moreno v. United
States, 82 Fed. Cl. 387, 400 (2008), the Supreme Court has instructed that equitable
tolling is a remedy to be granted only “sparingly,” Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 90 (1990).

        This court has recognized that equitable tolling of the FLSA statute of
limitations may be justified in three limited circumstances. A plaintiff seeking to
benefit from the equitable tolling of the limitations period imposed by the FLSA must
make a showing that: (1) a defective pleading was filed during the statutory period;
(2) plaintiff was induced or tricked by defendant’s misconduct into allowing the filing
deadline to pass; or (3) plaintiff’s injury was “inherently unknowable.” Christofferson
v. United States, 64 Fed. Cl. 316, 326 (2005) (citing, inter alia, Hickman v. United

6
       Because, as explained earlier, plaintiffs have not shown that equitable tolling is
warranted under the factual circumstances of this case, the court does not address
whether the limitations period for FLSA claims is subject to equitable tolling as
briefed by the parties. See Pls.’ Suppl. Br. 1–4; Def.’s Suppl. Resp. 1–4; Pls.’ Reply
2–4.


                                             5
States, 43 Fed. Cl. 424, 427 n.4 (1999), aff’d, 232 F.3d 906 (Fed. Cir. 2000); Udvari v.
United States, 28 Fed. Cl. 137, 139 (1993)).

        Plaintiffs do not contend that a defective pleading was filed during the statutory
period. Nor do plaintiffs argue that their injury was “inherently unknowable.”7
Instead, it seems from the arguments most recently advanced in their reply brief that
plaintiffs seek equitable tolling based on defendant’s alleged “misconduct,”8 as
plaintiffs assert that the “[e]mployees to whom the [g]overnment did not send notice,
as it was ordered to do, were induced into allowing a deadline to pass.” Pls.’ Reply 2.


7
        In their supplemental briefing, plaintiffs appeared to argue for equitable tolling
on the basis of defendant’s alleged failure to provide notice to certain potential
collective action members. See, e.g., Pls.’ Suppl. Br. 4 (“[E]quitable tolling is
warranted to preserve the rights of potential opt-in plaintiffs who, through no fault of
their own, have received no notice of their right to join an action.”); id. at 5 (arguing
for equitable tolling “regardless of whether the [g]overnment’s failure to provide
notice to all potential plaintiffs involved misconduct”). As it understood plaintiffs’
argument, defendant focused its responsive briefing on whether the alleged injury to
potential collective action members was “inherently unknowable” at the time their
claims accrued. See Def.’s Suppl. Resp. 4 (“[P]laintiffs appear to argue for equitable
tolling on the basis of the third circumstance: that the injury at issue in this case to
potential collective action members receiving notice on the additional notice date of
August 10, 2015, was ‘inherently unknowable’ until they received the notice of this
action.”). Plaintiffs subsequently disclaimed any reliance on the “inherently
unknowable” ground for its equitable tolling request. See Pls.’ Reply 4.
8
       Although the scope of the equitable tolling requested by plaintiffs—as well as
the ground on which plaintiffs seemingly based their request—shifted during the
course of the briefing, plaintiffs now have clarified their position:

       The [g]overnment mistakenly asserts that [p]laintiffs “appear to argue for
       equitable tolling on the basis of the third circumstance: that the injury at
       issue in this case to potential collective action members receiving notice
       on the additional notice date of August 10, 2015, was ‘inherently
       unknowable’ until they received the notice of this action.” Plaintiffs
       instead contend that the persons to whom the [g]overnment did not send
       notice as ordered in March 2015 qualify under the second circumstance
       [in which courts have recognized equitable tolling] in that they have
       “been induced or tricked by [their] adversary’s misconduct into allowing
       the deadline to pass.”

Pls.’ Reply 4–5 (quoting Def.’s Suppl. Resp. 4; Hickman, 43 Fed. Cl. at 427 n.4).


                                              6
        Plaintiffs assert that in sending the August 2015 Notice, “the [g]overnment
violated—presumably negligently rather than intentionally—a [c]ourt [o]rder requiring
it to send notice to all class members in March 2015.” Id. at 5. According to
plaintiffs, “[v]iolating a [c]ourt [o]rder to provide notice is ‘misconduct,’ even if the
violation is unintentional.” Id. at 2.

        Plaintiffs further assert that “[t]his misconduct may have induced persons who
did not receive the March 2015 notice to miss the two-year statute of limitations filing
deadline, which will arrive in October 2015.” Id. at 5; see also id. at 6 (contending
that “in arguing against tolling, the [g]overnment is again creating the risk that some of
its employees may be induced to miss the statute of limitations deadline through no
fault of their own”). Plaintiffs argue that defendant’s actions, combined with the
widespread media coverage of this case, may have misled additional notice recipients
about their eligibility to participate in the lawsuit. Id. (“To the extent that [additional
notice recipients] knew of this litigation, the fact that they did not receive a notice
when other employees were receiving them would have indicated to them that they
were not potential members of the collective action and had no rights to pursue.”).

        The court does not find plaintiffs’ argument persuasive. “Misconduct” in this
context requires more than what plaintiffs have described. Plaintiffs rely on a case
from the Eastern District of New York, Semper v. N.Y. Methodist Hospital, 786 F.
Supp. 2d 566, 578 (E.D.N.Y. 2011), for a list of Title VII cases in support of their
assertion that “[t]he ‘misconduct’ that may trigger equitable tolling does not need to be
intentional.” Pls.’ Reply 5. The Semper court offered this list of cases—involving
mailing or clerical errors committed by the Equal Employment Opportunity
Commission—in furtherance of its finding that “[t]here is little to no support . . . for
the proposition that equitable tolling excuses so-called lost-in-the-mail scenarios.”
786 F. Supp. 2d at 578. The Semper court did not characterize these cases in the
manner that plaintiffs have. Thus, plaintiffs improperly rely on these cases to support
their equitable tolling request on the ground of misconduct.

        Defendant here has not made affirmative misrepresentations regarding the
limitations period or otherwise. See, e.g., Irwin, 498 U.S. at 96 n.4 (citing two cases in
which an “adversary’s misrepresentation caused plaintiff to let [a] filing period
lapse”—namely, Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231 (1959) and
Holmberg v. Armbrecht, 327 U.S. 392 (1946)—as examples of a circumstance in
which “the complainant has been induced or tricked by his adversary’s misconduct




                                              7
into allowing the filing deadline to pass”);9 see also Baldwin Cty. Welcome Ctr. v.
Brown, 466 U.S. 147, 151 (1984) (explaining that tolling may be appropriate, inter
alia, “where affirmative misconduct on the part of a defendant lulled the plaintiff into
inaction”).

        Nor have plaintiffs shown that defendant either engaged in secretive conduct or
concealed its activity to prevent potential collective action members from filing their
claims. See Abbey v. United States, 106 Fed. Cl. 254, 287 (2012) (finding that the
government agency’s internal compensation policies “are not the type of ‘concealment
or secretive conduct which [would have] prevented plaintiffs from becoming aware of
the alleged injury’” under the FLSA (quoting Christofferson, 64 Fed. Cl. at 327)); see
also Huggins v. United States, No. 95-285, 2005 WL 6112625, at *8–9 (Fed. Cl. Aug.
16, 2005) (finding that plaintiffs were not misled by repeated assertions by agency
officials that they were properly classified under the FLSA and thus had “no redress”
for their grievances).

      Rather, the action of which plaintiffs complain—specifically, the delay in
sending notice sent to the August 2015 Notice Recipients—occurred as a result of
inadvertent omissions by defendant during the process of identifying potential

9
        Of the two cases cited by the Irwin Court, most relevant to the circumstances
presented here is the Glus case. The plaintiff in that case failed to timely file—within
the three-year limitations period prescribed by the Federal Employers’ Liability Act—
an action to recover damages for an industrial disease allegedly contracted while in his
defendant’s employ. Irwin, 359 U.S. at 231. Plaintiff explained that he was induced
to delay his filing by the affirmative misrepresentations of his employer’s agents that
he had seven years in which to file his claim. Id. at 231–32. Finding that the
plaintiff’s employer was estopped from asserting the statute of limitations as a defense
and reversing the lower court’s dismissal of the case as time-barred, the Supreme
Court held that plaintiff was entitled to have his case tried on the merits if he could
prove his allegation that his employer’s agents “conducted themselves in such a way
that [he] was justifiably misled into a good-faith belief that he could begin his action at
any time within seven years after it had accrued.” Id. at 235. In so holding, the Court
discussed two other cases in which plaintiffs were allowed to proceed, although they
did not file suit until after the applicable limitations period had expired; in each case,
plaintiffs’ adversaries had made affirmative misrepresentations about the limitations
period. See id. at 233 (addressing Schroeder v. Young, 161 U.S. 334, 344 (1896), in
which the debtor was “lulled into a false security” after relying on the purchaser’s
assurances that “that the statutory time to redeem [the property] would not be insisted
upon”); id. at 233 n.9 (making reference to Graffam v. Burgess, 117 U.S. 180, 186–87
(1886), a case in which the purchaser purposefully prevented the debtor from realizing
a foreclosure sale until the period to redeem the property had expired).


                                              8
collective action members. Plaintiffs themselves recognize that defendant’s errors
were committed “presumably negligently rather than intentionally.” Pls.’ Reply 5.
And once defendant identified those potential collective action members to whom the
Spring 2015 Notice should have been sent—but was not—defendant promptly moved
to send notice (specifically, the August 2015 Notice) to them. The court does not find
this delay in sending notice to constitute the type of “misconduct” warranting equitable
tolling under the FLSA.

         Even if defendant were assumed to have committed the type of “misconduct”
contemplated to trigger the equitable tolling of the limitations period, plaintiffs have
failed to show that the August 2015 Notice Recipients were “induced” or “tricked”
into not pursuing their claims as a result of the delayed receipt of their notices.

       Plaintiffs have offered no evidence to support their allegation that the
“[e]mployees to whom the [g]overnment did not send notice, as it was ordered to do,
were induced into allowing a deadline to pass.” Pls.’ Reply 2; see also id. at 5 (also
alleging that defendant’s actions “may” have induced the August 2015 Notice
Recipients to miss the two year statute of limitations deadline); id. at 6 (same).
Plaintiffs have introduced no evidence demonstrating that the August 2015 Notice
Recipients have been unable to timely join this lawsuit, or that defendant has acted in a
way that has prevented them from doing so.

       Plaintiffs have fallen short of making the affirmative showing that is required
by the ground upon which they seek to invoke equitable tolling.

III.   Conclusion

        The court is not persuaded by plaintiffs’ allegation of “misconduct” by
defendant, and finds that plaintiffs have not put forth any evidence to support their
complaint that the August 2015 Notice Recipients have been “induced” or “tricked”
into allowing the filing deadline to pass. Plaintiffs have failed to make the showing
required for any of the three circumstances in which this court has recognized that
equitable tolling of the statute of limitations might be justified. Accordingly, the
motion for equitable tolling of the claims of the August 2015 Notice Recipients is
DENIED.

       IT IS SO ORDERED.


                                             s/ Patricia Campbell-Smith
                                             PATRICIA CAMPBELL-SMITH
                                             Chief Judge



                                             9
