Baca v. United States

QUENTIN BACA, et al., Plaintiffs, v. THE UNITED STATES, Defendant.

No. 19-213C

United States Court of Federal Claims

December 4, 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.

Molly Ann Elkin, Washington, DC, for plaintiff. Gregory K. McGillivary, Sarah M. Block, John W. Stewart, 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. 1 at 3 (complaint, filed on February 6, 2019); ECF No. 32 at 338-39 (third amended complaint, filed on April 19, 2019). 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. 33.

In analyzing defendant's motion, the court has considered: (1) plaintiffs' complaint, ECF No. 1; (2) plaintiffs' third amended complaint (hereinafter referred to as the complaint, unless otherwise stated), ECF No. 32; (3) defendant's motion to dismiss, ECF No. 33; (4) plaintiffs' response to defendant's motion, ECF No. 34; (5) defendant's reply in support of its motion, ECF No. 38; (6) defendant's first supplemental brief in support of its motion, ECF No. 40; (7) plaintiffs' response to defendant's first supplemental brief, ECF No. 41; (8) defendant's second supplemental brief in support of its motion, ECF No. 50; (9) plaintiffs' response to defendant's second supplemental brief, ECF No. 54; (10) defendant's third supplemental brief in support of its motion, ECF No. 59; and (11) plaintiffs' response to defendant's third supplemental brief, ECF No. 60. 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 midnight on December 22, 2018, the federal government partially shut down due to a lack of appropriations. See ECF No. 32 at 339. The named plaintiffs in this case were, at the time of the shutdown, employees of the United States working as air traffic controllers for the Federal Aviation Administration (FAA). See id. at 338. Although the lapse in appropriations began on December 22, 2018, the FAA did not exhaust its appropriated funds until 12:01 a.m. on December 24, 2020. See id. at 342.

In their complaint, plaintiffs allege that they were categorized as excepted employees, and "compelled to continue to work through the shutdown." Id. at 339. Plaintiffs did not receive timely minimum or overtime wages for work performed during the shutdown. See id. at 344-45. Plaintiffs also allege that some air traffic controllers did not receive timely minimum or overtime wages for work performed between December 19 and December 23, 2018, even though the FAA had not yet exhausted its appropriatedfunds. See id. at 345-48. In addition, plaintiffs claim that defendant's "violations of the FLSA as alleged herein have been done in an intentional, willful, and bad faith manner." Id. at 349, 353, 354; see also id. at 350, 351. Plaintiffs now seek "backpay as well as monetary liquidated damages equal to any unpaid or untimely paid minimum wage and overtime compensation earned since December 19, 2018, as well as interest thereon," and attorneys' fees and costs. See id. at 355.

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, 217 (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 of jurisdiction, 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 isplausible 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. 33 at 24-25. 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 United States 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 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 the Court of Federal Claims." ECF No. 33 at 24. Defendant argues that plaintiffs' claims are "based upon the same operative facts" as the claims asserted in National Air Traffic Controllers Association, AFL-CIO v. United States, Case No. 19-62 (D.D.C. 2019), which was filed in the United States District Court for the District of Columbia on January 11, 2019. Id. Defendant explains the operative facts of National Air Traffic Controllers, as follows: "NATCA filed its suit on behalf of 'similarly situated employees at the FAA working in 'excepted' status in accordance with the minimum wage and overtime provisions of the' FLSA, who asserted untimely payment of wages for their work performed during the lapse in appropriations." Id. Given the symmetry of claims and the fact that the district court case was filed first, defendant argues, this court must dismiss the present action. See id. at 25.

As plaintiffs note in response, however, defendant's analysis elides a critical piece of the statutory text. See ECF No. 34 at 11-14. Section 1500 operates only when the same "plaintiff or his assignee" is involved with the two similar cases. 28 U.S.C. § 1500.As the Supreme Court of the United States has explained: "[Section 1500] is more straightforward than its complex wording suggests. The [Court of Federal Claims] has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents." United States v. Tohono O'Odham Nation, 563 U.S. 307, 311 (2011) (emphasis added).

Here, according to plaintiffs, none of the named plaintiffs in the district court...