Avalos v. United States

ELEAZAR AVALOS, et al., Plaintiffs, v. THE UNITED STATES, Defendant.

No. 19-48C

United States Court of Federal Claims

December 9, 2020

Motion to Dismiss; RCFC 12(b)(6); Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19; Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42; Government Employees Fair Treatment Act of 2019 (GEFTA); Pub. L. No. 116-1, 133 Stat. 3 (2019); 28 U.S.C. § 1500.

Gregory James O'Duden, Washington, DC, for plaintiff. Julie M. Wilson, Allison C. Giles, Leon Dayan, Abigail Carter, of counsel.

Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Ann C. Motto, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, Judge.

Plaintiffs in this putative collective action allege that the government, through several agencies, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19, by failing to timely pay their earned overtime and regular wages during the partial government shutdown and lapse of appropriations that began on December 22, 2018. See ECF No. 6 (amended complaint, hereinafter referred to as the complaint). On May 3, 2019, defendant moved to dismiss the complaint for lack of jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC); and in the alternative, for failure to state a claim on which relief may be granted, pursuant to RCFC 12(b)(6) on the basis that the Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42, prohibited the government from paying employees. See ECF No. 21.

In analyzing defendant's motion, the court has considered: (1) plaintiffs' complaint, ECF No. 6; (2) defendant's motion to dismiss, ECF No. 21; (3) plaintiffs' response to defendant's motion, ECF No. 22; (4) defendant's reply in support of its motion, ECF No. 26; (5) defendant's first supplemental brief in support of its motion, ECF No. 28; (6) plaintiffs' response to defendant's first supplemental brief, ECF No. 29; (7) defendant's second supplemental brief in support of its motion, ECF No. 37; (8) plaintiffs' response to defendant's second supplemental brief, ECF No. 41; (9) defendant's third supplemental brief in support of its motion, ECF No. 45; and (10) plaintiffs' response to defendant's third supplemental brief, ECF No. 46. The motion is now fully briefed and ripe for ruling.¹ The court has considered all of the arguments presented by the parties, and addresses the issues that are pertinent to the court's ruling in this opinion. For the following reasons, defendant's motion is DENIED.

I. Background

Beginning at 12:01 a.m. on December 22, 2018, the federal government partially shut down due to a lack of appropriations. See ECF No. 6 at 6. The named plaintiffs in this case were, at the time of the shutdown, employed as Customs and Border Protection Officers for the United States Department of Homeland Security, Customs and Board Protection (CBP). See id. at 3. Plaintiffs allege that CBP "classified them as FLSA nonexempt," and that they "were designated excepted employees [under the ADA] for the shutdown that began on December 22[, 2018]." Id. at 3, 6. As a result of being classified as exempt employees, plaintiffs were required to work during the shutdown, but did not receive timely pay for that work. See id. at 6-8 (alleging facts specific to each named plaintiff).

Plaintiffs allege that "[t]he federal government's failure to pay timely [p]laintiffs and other FLSA nonexempt employees who performed overtime work [during the shutdown], or who performed non-overtime work [during the shutdown] violated theFLSA." Id. 8. And according to plaintiffs, "[t]he federal government was on notice, including from previous litigation, that a failure to pay FLSA nonexempt employees their overtime wages on time, or the required minimum wage on time, regardless of whether the government is shut down, is a per se FLSA violation." Id. at 8-9. In support of this allegation, plaintiffs cite to this court's ruling in Martin v. United States, 130 Fed. Cl. 578 (2017), in which the court found "that the federal government failed to ascertain its FLSA obligations in connection with the payment of FLSA nonexempt employees who were required to work during a government shutdown." Id. at 9. Plaintiffs claim that defendant likewise failed to "obtain such an opinion or analysis about its FLSA obligations" during the shutdown at issue here. Id. As a result, plaintiffs contend, defendant "neither acted in good faith, nor had reasonable grounds for believing that failing to pay FLSA nonexempt employees their overtime wages or the required minimum wage on time during the shutdown was compliant with the FLSA." Id.

Plaintiffs define the putative class to include "FLSA nonexempt employees in bargaining units represented by [the National Treasury Employees Union (NTEU)]" during the shutdown. Id. at 4. The NTEU allegedly represents "[h]undreds of thousands of federal employees, including tens of thousands of employees in bargaining units," who "were forced to work during the partial government shutdown without pay." Id. at 1-2. Notably, however, the NTEU is not a named plaintiff in the amended complaint. See id. at 1.

Plaintiffs now seek "any overtime wages . . . and any minimum wage" earned during the shutdown, "liquidated damages in an amount equal to" those wages, and "reasonable attorneys' fees and costs incurred in this action." Id. at 14-15.

II. Legal Standards

A. Dismissal for Lack of Jurisdiction

Pursuant to the Tucker Act, the court has jurisdiction to consider "any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). To invoke the court's jurisdiction, plaintiffs must show that their claims are based upon the Constitution, a statute, or a regulation that "can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained." United States v. Mitchell, 463 U.S. 206, 216-17 (1983) (quoting United States v. Testan, 424 U.S. 392, 400 (1976)).

Plaintiffs bear the burden of establishing this court's subject matter jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). In reviewing plaintiffs' allegations in support ofjurisdiction, the court must presume all undisputed facts are true and construe all reasonable inferences in plaintiffs' favor. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982); Reynolds, 846 F.2d at 747 (citations omitted). If, however, a motion to dismiss "challenges the truth of the jurisdictional facts alleged in the complaint, the . . . court may consider relevant evidence in order to resolve the factual dispute." Reynolds, 846 F.2d at 747. If the court determines that it lacks subject matter jurisdiction, it must dismiss the complaint. See RCFC 12(h)(3).

B. Dismissal for Failure to State a Claim

When considering a motion to dismiss brought under RCFC 12(b)(6), the court "must presume that the facts are as alleged in the complaint, and make all reasonable inferences in favor of the plaintiff." Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)). It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) "when the facts asserted by the claimant do not entitle him to a legal remedy." Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

III. Analysis

A. The Court Has Jurisdiction over Plaintiffs' Claims

At the end of its motion to dismiss, defendant includes a short argument in which it takes the position that the court lacks jurisdiction to hear plaintiffs' claims pursuant to 28 U.S.C. § 1500. See ECF No. 21 at 24-26. Section 1500 states, in its entirety, as follows:

The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.

28 U.S.C. § 1500. Of relevance here, the Court of Appeals for the Federal Circuit has held that the "question of whether another claim is 'pending' for purposes of § 1500 is determined at the time at which the suit in the Court of Federal Claims is filed, not the time at which the Government moves to dismiss the action." Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1548 (Fed. Cir. 1994).

According to defendant, "Section 1500 bars plaintiffs from pursuing claims in this case in the Court of Federal Claims because another claim in district court based on the same operative facts was pending on the date they filed their complaint in this Court." ECF No. 21 at 24. Defendant argues that plaintiffs' claims are "based upon the same set of operative facts" as the claims asserted in National Treasury Employees Union v. United States, Case No. 19-cv-50 (D.D.C. 2019), which was filed in the United States District Court for the District of Columbia on January 11, 2019, the same day the present action was filed. Id. at 25. Defendant explains that the NTEU "filed its...