                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA
_______________________________
                                )
WILLIE LEE ELLIS, et al.,       )
                                )
          Plaintiffs,           )
                                )
     v.                         )
                                )  Civ. Action No. 15-842 (EGS)
                                )
HOLY COMFORTER SAINT CYPRIAN    )
COMMUNITY ACTION GROUP,         )
                                )
          Defendant.            )
                                )


                       MEMORDANUM OPINION

     Plaintiffs Willie Lee Ellis, Henry Wood, Thomas Moore,

James Young, and Murphy McNeil (“Plaintiffs”) bring this action

against Holy Comforter Saint Cyprian Community Action Group

(“Community Action Group” or “CAG”) alleging violations of the

Fair Labor Standards Act, 29 U.S.C. § 207 et seq., the D.C.

Living Wage Act, D.C. Code § 2-220.01 et seq., the D.C. Minimum

Wage Revision Act, D.C. Code § 32-1001 et seq., and the D.C.

Wage Payment and Collection Act, D.C. Code § 32-1301 et seq.

Defendant moves to dismiss for lack of standing. Upon

consideration of the motion, the response and reply thereto, the

applicable law, the entire record, and for the reasons stated

below, Defendant’s motion is DENIED.
  I.     BACKGROUND

       Plaintiffs are former employees of Community Action Group,

a rehabilitation facility in the District of Columbia. Compl.,

Docket No. 1 at 3. Plaintiffs allege that, while employed as

rehabilitation monitors at CAG, they were not paid the proper

hourly rate nor properly compensated for work in excess of forty

hours per week. Id. at 3-4. CAG moves to dismiss Plaintiffs’

claims for lack of standing. See generally Def.’s Mot. to

Dismiss (“Def.’s Mot.”).

       On February 24, 2015, CAG signed a contract entitled

“Agreement Regarding the Mediated Settlement Under the Living

Wage Act of 2006” (“the Agreement”) with the D.C. Department of

Employment Services Office of Wage-Hour Compliance (“D.C. Office

of Wage-Hour”). See Def.’s Ex. 1. The Agreement acknowledges

CAG’s commitment to pay $170,000 to resolve certain wage and

hour claims and indicates that the D.C. Office of Wage-Hour will

not commence any lawsuit against CAG “with respect to unresolved

claims asserted by the D.C. Office of Wage-Hour for unpaid wages

on behalf of employees found to be due back wages as a result of

a Living Wage audit completed on February 10, 2015.”. Id. The

Agreement covers “payments to all former and current employees

for calendar years 2013 and 2014.” Id. CAG argues that

Plaintiffs’ injuries have already been redressed through the



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Agreement and that allowing Plaintiffs’ lawsuit to proceed would

result in their double recovery. Id. at 4-5.

  II.   STANDARD OF REVIEW

     A motion to dismiss for lack of standing is properly

considered a challenge to the Court’s subject matter

jurisdiction and should be reviewed under Federal Rule of Civil

Procedure 12(b)(1). Little v. Fenty, 689 F. Supp. 2d 163, 166 n.

3 (D.D.C. 2012); see also Hasse v. Sessions, 835 F.2d 902, 906

(D.C. Cir. 1987)(“[T]he defect of standing is a defect in

subject matter jurisdiction.”). To survive a Rule 12(b)(1)

motion to dismiss, “the plaintiff bears the burden of

establishing jurisdiction by a preponderance of the evidence.”

Moran v. U.S. Capitol Police Bd., 820 F. Supp. 2d 48, 53 (D.D.C.

2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992)). Because Rule 12(b)(1) concerns a court’s ability to

hear a particular claim, the court “must scrutinize the

plaintiff’s allegations more closely when considering a motion

to dismiss pursuant to Rule 12(b)(1) than it would under a

motion to dismiss pursuant to Federal Rule 12(b)(6).” Schmidt v.

U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011).

In so doing, the court must accept as true all of the factual

allegations in the complaint and draw all reasonable inferences

in favor of the plaintiff, but the court need not “accept

inferences unsupported by the facts or legal conclusions that

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are cast as factual allegations.” Rann v. Chao, 154 F. Supp. 2d

61, 63 (D.D.C. 2001). Finally, in reviewing a motion to dismiss

pursuant to Rule 12(b)(1), the court “may consider materials

outside the pleadings as it deems appropriate to resolve the

question whether it has jurisdiction in the case.” Scolaro v.

D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C.

2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F. 2d

1249, 1253 (D.C. Cir. 2005).


  III. DISCUSSION

     To establish Article III standing, Plaintiffs must

demonstrate that (1) they have personally suffered an “injury in

fact”; (2) the injury complained of is fairly traceable to the

challenged action of the Defendant; and (3) it is likely that

the injury will be redressed by a favorable decision by the

Court. Lujan, 504 U.S. at 560-61 (internal citations omitted).

CAG argues that Plaintiffs have failed to demonstrate than an

action in this Court will redress their alleged injuries

because, according to CAG, Plaintiffs’ injuries were already

redressed through the Agreement between CAG and the D.C. Office

of Wage-Hour. Def.’s Mot. at 3-5. Plaintiffs argue that the

majority of Plaintiffs have not received any payment from CAG as

a result of the Agreement, and that those who did receive




                                4
payment did not receive the full amount owed to them under the

law. 1 Pls.’ Opp. at 4.

     The Agreement fails to demonstrate that Plaintiffs’ alleged

injuries will not be redressed by a favorable decision by the

Court. First, the Agreement is between CAG and the D.C. Office

of Wage-Hour and is clearly limited to resolution of claims

under the D.C. Living Wage Act for calendar years 2013 and 2014.

See Def.’s Ex. 1. Plaintiffs’ complaint alleges injuries under

the Fair Labor Standards Act, the D.C. Minimum Age Revision Act,

and the D.C. Wage Payment and Collection Act, in addition to the

D.C. Living Wage Act. See generally Compl. Moreover, Plaintiffs’

complaint alleges unpaid wages beginning as early as 2008, when

Plaintiff Young began his employment at CAG. Id. at 3.

Accordingly, while some of plaintiffs’ injuries may have been

partially redressed as a result of the Agreement, the complaint

alleges additional injuries for which CAG has provided no

evidence of redress. Plaintiffs may proceed to seek redress of

their entire injury. See Massachusetts v. EPA, 549 U.S. 497,

525-26 (2007) (litigation success need only partially redress a

plaintiff’s injuries to meet the redressability requirement);

see also Dove v. Coupe, 81-cv-3022, 1982 WL 2190 at *1 (D.D.C.




1 Plaintiffs further indicate that the individual Plaintiffs who
did receive payment from CAG neither deposited nor cashed these
payments. Pls.’ Opp. at 4.
                                5
May 19, 1982)(plaintiff who received partial redress of his

injuries could proceed to seek further redress of his whole

injury).

     Furthermore, even though the D.C. Office of Wage-Hour

entered into an Agreement with CAG on behalf of certain CAG

employees, there is no evidence in the record that Plaintiffs

agreed to forego their private right of action against CAG. CAG

argues that even though Plaintiffs are not parties to the

Agreement, Plaintiffs are barred from filing this lawsuit

because they are third-party beneficiaries to the Agreement.

Def.’s Mot. at 3.


     Under D.C. contract law, “[o]ne who is not a party to a

contract nonetheless may sue to enforce its provisions if the

contracting parties intend the third party to benefit directly

thereunder.”. W. Union Tel. Co. v. Massman Constr. Co., 402 A.2d

1275, 1277 (D.C. 1979). But it does not follow that intended

beneficiaries of a settlement agreement, who did not release

their claims against defendant, would be barred from filing

their own suit. In fact, a “beneficiary who has not previously

assented to the promise for his benefit may in a reasonable time

after learning of its existence and terms render any duty to

himself inoperative from the beginning by disclaimer.”

Restatement (Second) of Contracts: Disclaimer by a Beneficiary §



                                6
306 (1981). “It is black letter contract law that a third party

‘beneficiary is entitled to reject a promised benefit . . .’ and

when this occurs, ‘the effect on the promisor’s duty to the

beneficiary is the same as if no promise had been made.’”.

United States v. Weeks, 388 F.3d 913, 917 (D.C. Cir. 2004) rev’d

on other grounds 544 U.S. 917 (2005)(quoting Restatement

(Second) of Contracts: Disclaimer by a Beneficiary § 306, at

cmt. & illus. b (1981)). Absent evidence that Plaintiffs

assented to the Agreement, Plaintiffs are entitled to disclaim

any obligations owed to them thereunder, provided the disclaimer

occurs within a reasonable time. CAG provides no evidence that

Plaintiffs assented to the Agreement nor does it argue that

Plaintiffs disclaimer occurred outside a reasonable time period.

Accordingly, upon review of the record, and accepting the

factual allegations in the complaint as true, Plaintiffs have

alleged an injury capable of being redressed by a favorable

decision of this Court.


  IV.     CONCLUSION

     For the foregoing reasons, Defendant’s Motion to Dismiss is

DENIED. An appropriate order accompanies this Memorandum

Opinion.


Signed:     Emmet G. Sullivan
            United States District Court
            January 27, 2016


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