             In the United States Court of Federal Claims
                                             No. 19-1878
                                         Filed: May 6, 2020
                                       Reissued: May 22, 20201

                                                )
    DOE NO. 1, et al.,                          )
                                                )
                         Plaintiffs,            )      Fair Labor Standards Act; Conditional
                                                )      Certification; 29 U.S.C. § 216(b);
    v.                                          )      Similarly Situated; Collective Action;
                                                )      Two-Step Approach; Court-Facilitated
    THE UNITED STATES,                          )      Notice.
                                                )
                     Defendant.                 )
                                                )

Alice Chihyun Hwang, James & Hoffman, P.C., Washington, DC, for plaintiffs.

Liridona Sinani, U.S. Department of Justice, Civil Division, Washington, DC, for defendant.

     ORDER GRANTING-IN-PART AND DENYING-IN-PART PLAINTIFFS’ MOTION
              FOR CONDITIONAL CERTIFICATION AND NOTICE

SMITH, Senior Judge

        Before the Court is plaintiffs’ Unopposed Motion for Conditional Certification and
Notice. The thirty-two plaintiffs 2 in this case are Victim Specialists in occupational series
GS-0101 and are employed by the defendant, the United States, at the Department of Justice,
Federal Bureau of Investigation (“FBI”). Plaintiffs’ Unopposed Motion for Conditional
Certification and Notice (hereinafter “Pls.’ Mot.”) at 1. On March 26, 2020, plaintiffs filed their
Motion, seeking “conditional certification of certain claims” on behalf of themselves and other
similarly-situated employees under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
§ 201 (2018), et seq., (“FLSA”), and requesting that the Court issue a “court-supervised notice to
potential opt-in plaintiffs.” Id. On April 27, 2020, the Court held a Status Conference to discuss
plaintiffs’ Motion. For the reasons set forth below, and consistent with discussions held during
that Status Conference, plaintiffs’ Motion is granted-in-part and denied-in-part.

1
        An unredacted version of this Order was issued under seal on May 6, 2020. The parties
were given an opportunity to propose redactions, but no such proposals were made.
2
        On March 13, 2020, plaintiffs filed an amended complaint, identifying twenty-six named
plaintiffs. See generally Plaintiffs’ First Amended Complaint Filed in Collective Action under
the Fair Labor Standards Act. Consistent with the Court’s March 22, 2020 Order, plaintiffs have
since filed three separate Notices, collectively joining six additional plaintiffs to this suit. See
generally Order Granting Plaintiffs’ Motion for Leave, ECF No. 34; Plaintiffs’ Unopposed
Notice of Additional Party-Plaintiff(s) and Consent to Sue Form(s), ECF Nos. 36, 38, 40.
         Pursuant to § 216(b) of the FLSA, a plaintiff may bring a collective action to recover
liability “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). However, “[n]o
employee shall be a party plaintiff to any such action unless he gives his consent in writing to
become such a party and such consent is filed” with the Court. Id. On March 22, 2020, the
Court granted plaintiffs’ Unopposed Motion for Leave to File Notices of Additional Consents,
thereby permitting the plaintiffs to join additional party-plaintiffs to this suit pursuant to Rule 20
of the Rules of the Court of Federal Claims (“RCFC”). See generally Order Granting Plaintiffs’
Motion for Leave, ECF No. 34. To date, plaintiffs have filed three such Notices, which are
inclusive of the requisite Consent to Sue Forms, per 29 U.S.C. § 216(b). See generally
Plaintiffs’ Unopposed Notice of Additional Party-Plaintiff(s) and Consent to Sue Form(s), ECF
Nos. 36, 38, 40.

        In their principle case, plaintiffs allege that the FBI improperly treated them and others
similarly situated as exempt from the FLSA and therefore “seek to recover from Defendant back
pay, liquidated damages, interest, attorneys’ fees, and costs pursuant to the [FLSA], 5 U.S.C. §
5596 [(2018)], and other applicable laws.” Plaintiffs’ First Amended Complaint Filed in
Collective Action under the Fair Labor Standards Act at 3. In the Motion at bar, plaintiffs seek
“conditional certification for all past and present FLSA FBI employees who worked as Victim
Specialists in occupational series GS-0101 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.’ Mot. at 1.

        Plaintiffs claim that they satisfy the requirements for conditional certification, as all of
the proposed collective action members are Victim Specialists in occupational series GS-0101,
“all have been classified as FLSA-exempt at some point during the past three years,” and
because “they and others in their position were misclassified and not paid for their overtime
hours at the FLSA-required rate of time and one-half their FLSA regular rate.” Id. Plaintiffs
indicated in their Motion that “the Government does not oppose Plaintiffs’ request to issue the
attached proposed notice subject to the notice procedure discussed” in plaintiffs’ Motion, but that
“[t]he Government reserves all rights to oppose collective treatment and to seek to decertify the
conditionally certified collective action.” Id. at 2.

        In deciding whether certification of a collective action is appropriate, this Court has, at
times, chosen to employ a judicially-devised “two-step approach,” 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.’” Barry v.
United States, 117 Fed. Cl. 518, 520 (2014) (quoting Whalen v. United States, 85 Fed. Cl. 380,
383 (2009)). The first step, coined “conditional certification,” places a low burden on the
plaintiff, requiring only that the plaintiff make a “‘modest factual showing’ of common
circumstance” amongst potential collective action members “based on ‘the pleadings, affidavits,
and other available evidence.’” Id. at 520–21 (quoting Gayle v. United States, 85 Fed. Cl. 72, 77
(2008)); Whalen, 85 Fed. Cl. at 384–85 (quoting Hoffmann v. Sbarro, Inc., F. Supp. 249, 261
(S.D.N.Y. 1997)). If that burden is met, then, as a second step, the Court “undertakes a more
searching analysis into the relationship between named and opt-in plaintiffs. The inquiry into the
similarity of prospective plaintiffs is more rigorous at this stage because plaintiffs have had the
                                                  2
opportunity to build a more robust case and ‘marshal their best evidence’ through the discovery
process.” Whalen, 85 Fed. Cl. at 385 (quoting Davis v. Charoen Pokphand (USA), Inc., 303 F.
Supp. 2d 1272, 1276 (M.D. Ala. 2004)) (citations omitted). If the plaintiffs succeed under this
“stricter evidentiary burden,” then the plaintiffs may proceed to trial as a collective action. Id. If
they fail, “then the court will decertify the action, dismissing the opt-in plaintiffs without
prejudice and permitting the named plaintiffs to go forward to trial in an individual capacity.”
Id. (citing Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C. 2004)).

        As discussed during the April 27, 2020 Status Conference, the Court is not convinced that
such a two-step approach comports with the language of the FLSA or the Rules of this Court.
See McClendon v. United States, No. 12-81, 2013 U.S. Claims LEXIS 19, at *2–3 (Fed. Cl. Jan.
24, 2014) (discussing the absence of justification for the two-step approach in the text of the
FLSA); see also Smith v. United States, No. 13-161, 2014 U.S. Claims LEXIS 774, at *4–5 (Fed.
Cl. Aug. 11, 2014) (“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.”). Neither binding precedent nor the language of the FLSA specify the
precise methodology for how collective actions should proceed, and neither the Supreme Court
nor the FLSA explicitly condones or mandates the use of the two-step approach. See Tyson
Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (declining to decide if “the standard for
certifying a collective action under the FLSA is no more stringent than the standard for certifying
a class under the Federal Rules of Civil Procedure.”); McClendon, 2013 U.S. Claims LEXIS 19,
at *2–3 (explaining that neither the Supreme Court nor the Federal Circuit has ruled on the
two-step approach in the context of an FLSA action); Gayle, 85 Fed. Cl. at 77 (examining
various methodologies for how courts have reviewed collective action certification, as “[t]he
FLSA does not set forth in precise detail the manner in which collective actions should
proceed.”). See generally 29 U.S.C. § 216(b); Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165
(1989). As a result, the requirement that plaintiffs be “similarly situated” is open to
interpretation by the lower court when such a court is deciding whether to certify a collective
action, see 29 U.S.C. § 216(b), and, in doing so, whether to utilize the two-step approach.

         In the case at bar, the Court declines to implement the two-step approach. As the
two-step approach “is not specified by the plain text of the statute or binding precedent,” the
Court is “not persuaded that the judicially created two-step process is appropriate for our use.”
Smith, 2014 U.S. Claims LEXIS 774, at *4–5; McClendon, 2013 U.S. Claims LEXIS 19, at *2.
Instead, the Court concludes that simply facilitating the notice process—so that plaintiffs can
communicate with prospective party-plaintiffs—more appropriately aligns with this Court’s
Rules, the language of the FLSA, and with binding precedent. See Hoffmann-La Roche, 493
U.S. at 171–72. Additionally, the Court believes that, at the conclusion of the court-facilitated
notice process, the plaintiffs will be adequately primed to submit a more comprehensive motion
to certify a collective action. For those reasons, the Court denies plaintiffs’ request to
conditionally certify a collective action.

        The Supreme Court has held that, “[b]ecause trial court involvement in the notice process
is inevitable in cases with numerous plaintiffs where written consent is required by statute, it lies
within the discretion of a district court to begin its involvement early, at the point of the initial
notice, rather than at some later time.” Id. at 171. Given that § 216(b) affords employees with
“affirmative permission” to proceed on behalf of similarly situated individuals, the Supreme
                                                  3
Court concluded that lower courts “must [have] . . . the requisite procedural authority to manage
the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise
contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure.” See
id. at 170 (citing Fed. R. Civ. P. 83). Where a court decides to “oversee the notice-giving
process,” the Supreme Court has cautioned that courts “must be scrupulous to respect judicial
neutrality,” and that they must “avoid even the appearance of judicial endorsement of the merits
of the action.” Id. at 174. In McClendon, this Court exercised its discretion to implement such a
court-facilitated notice by granting plaintiff’s request that defendant produce the names and
mailing addresses of a narrow group of prospective collective action members. 2013 U.S.
Claims LEXIS 19, at *7–8 (“[C]ourt-facilitated notice is an effective and efficient method of
implementing the collective action provision of the FLSA.”).

        The Court believes that, in a FLSA collective action case, a court-facilitated notice
process is both a permissible and effective means of providing plaintiffs with the ability to
communicate with prospective party-plaintiffs in order to assemble a proposed collective action.
The plaintiffs in the case at bar have requested that the Court approve the proposed Notice
attached to their Motion, “subject to the notice procedure discussed” in that Motion. Pls.’ Mot.
at 2. Defendant does not oppose either request. See id. Upon careful review, the Court grants
plaintiffs’ request to transmit the proposed Notice and approves the procedures for preparing and
distributing such Notice as they are enumerated in plaintiffs’ Motion. At the close of the notice
and opt-in periods, the parties SHALL FILE a Joint Status Report, notifying the Court of the
completion of the opt-in period, after which the Court will set a status conference to set a
briefing schedule on the merits of certifying a collective action.

        For the foregoing reasons, plaintiffs’ MOTION for Conditional Certification and Notice
is hereby GRANTED-IN-PART as to transmitting the Notice and DENIED-IN-PART as to
conditional collective action certification. The Notice set forth in Attachment A to this Order is
hereby APPROVED for distribution in accordance with the procedures outlined in plaintiffs’
Motion. Accordingly, the parties are DIRECTED to file the “agreed upon protective order”
mentioned in the plaintiffs’ Motion for the Court’s review. Upon the Court’s approval,
defendant SHALL PROVIDE plaintiffs’ counsel with the names, home addresses, and email
addresses of all prospective party-plaintiffs within twenty days of that approval. Finally, and
consistent with discussions held during the April 27, 2020 Status Conference, the Court will hold
a Status Conference on May 27, 2020, at 3:00 p.m. (EDT).

       IT IS SO ORDERED.


                                                    s/   Loren A. Smith
                                                    Loren A. Smith,
                                                    Senior Judge




                                                4
