Abbey v.The United States

• Decision Date: 04 May 2011
• Parties: MARK G. ABBEY, ET AL., Plaintiffs, v. THE UNITED STATES, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

MARK G. ABBEY, ET AL., Plaintiffs,
v.
THE UNITED STATES, Defendant.

No. 07-272 C

In the United States Court of Federal Claims

E-Filed: May 4, 2011

Motion for Partial Summary Judgment; Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201219 (2006); Motion to Strike Portions of Testimony

Gregory Keith McGillivary, Washington, DC, for plaintiffs. Sara L. Faulman, Washington, DC, of counsel.

Hillary Adrienne Stern, with whom were Tony West, Assistant Attorney General, Jeanne M. Davidson, Director, and Todd M. Hughes, Deputy Director, Commercial Litigation Branch, United States Department of Justice, Washington, DC, for defendant. Brett Daee and Michael Doherty, Federal Aviation Administration, Washington, DC, of counsel.

OPINION AND ORDER

HEWITT, Chief Judge

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I. Background¹

This is an action concerning overtime pay as provided for by the Fair Labor Standards Act (the FLSA), 29 U.S.C. §§ 201-219 (2006), brought by Mark G. Abbey, et al. (plaintiffs). Before the court are Defendant's Motion for Summary Judgment (Def.'s Mot.), Defendant's Proposed Findings of Uncontroverted Facts (DFUF I) and defendant's Appendix (Def.'s App.), Docket Number (Dkt. No.) 150, filed November 2, 2010; Plaintiffs' Motion for Partial Summary Judgment (Pls.' Mot.) and Appendix to Plaintiffs' Motion for Partial Summary Judgment (Pls.' App.), Dkt. No. 152, filed November 2, 2010; Plaintiffs' Proposed Findings of Uncontroverted Facts (PFUF I), Dkt. No. 154, filed November 2, 2010; Plaintiffs' Opposition to Defendant's Motion for Summary Judgment (Pls.' Resp.), Dkt. No. 165, filed December 15, 2010; Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgment (Def.'s Resp.), Defendant's Statement of Genuine Issues (Def.'s Resp. to PFUF I) and Defendant's Additional Proposed Finding of Uncontroverted Facts (DFUF II), Dkt. No. 166, filed December 15, 2010; Plaintiffs' Response to Defendant's Proposed Findings of Uncontroverted Facts (Pls.' Resp. to DFUF I), Dkt. No. 167, filed December 15, 2010; Plaintiffs' Supplemental Proposed Findings of Uncontroverted Facts (PFUF II), Dkt. No. 168, filed December 15, 2010; defendant's Supplemental Appendix (Def.'s Supp. App.), Dkt. No. 170, filed December 17, 2010; Plaintiffs' Reply in Support of their Motion for Partial Summary Judgment (Pls.' Reply), Dkt. No. 176, filed January 10, 2011; Defendant's Reply to Plaintiffs' Opposition to Defendant's Motion for Summary Judgment (Def.'s Reply), Dkt. No. 178, filed January 10, 2011; Plaintiffs' Response to the Court's Order of February 2, 2011 (Pls.' Brief), Dkt. No. 183, filed February 7, 2011; and Defendant's Reply to Plaintiffs' Response to the Court's Order of February 2, 2011 (Def.'s Brief), Dkt. No. 184, filed February 14, 2011.

Also before the court are Plaintiffs' Motion to Strike Portions of the Affidavits of James Whitlow and Anthony Capaldi (plaintiffs' Motion to Strike or Pls.' Mot. Strike), Dkt. No. 164, filed December 15, 2010; Defendant's Opposition to Plaintiffs' Motion to Strike Portions of the Declarations of James Whitlow and Anthony Capaldi (Def.'s Resp. Strike), Dkt. No. 173, filed January 3, 2011; and Plaintiffs' Reply to Defendant's

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Opposition to Plaintiffs' Motion to Strike Portions of the Affidavits of James Whitlow and Anthony Capaldi (Pls.' Reply Strike), Dkt. No. 175, filed January 10, 2011.

Plaintiffs are Traffic Management Coordinators and Air Traffic Control Specialists (ATCs) (collectively, Controllers), currently or formerly employed by the Federal Aviation Administration (FAA). Pls.' Mot. 1. Plaintiffs bring four claims pursuant to the FLSA. Id. In Count I, plaintiffs claim that defendant failed "to properly compute the rate at which overtime is paid in violation of the FLSA's requirement that overtime be paid at one and one-half times the regular rate of pay." Id. In Count II, plaintiffs claim that defendant violated the FLSA by compensating plaintiffs with compensatory time or credit hours instead of paying them "overtime compensation for hours worked in excess of 40 hours in a workweek at the rate of one and one-half times the regular rate of pay." Id. (footnote omitted). In Count III, plaintiffs claim that defendant failed to "compensate plaintiffs for pre-and post-shift activities plaintiffs are 'suffered or permitted' to work" in violation of 29 U.S.C. § 203(g) and § 207(a). Id. In Count IV, plaintiffs contend that defendant failed "to compensate plaintiffs for time spent bidding on work schedules off-duty" in violation of 29 U.S.C. § 203(g) and § 207(a). Id. Plaintiffs also claim that they are entitled to recover liquidated damages pursuant to 29 U.S.C. § 216(b). Pls.' Mot. 4048. Except for factual issues related to Count III, the disputed issues are legal in nature.

For the following reasons: (1) defendant's Motion is GRANTED-IN-PART and DENIED-IN-PART and plaintiffs' Motion is GRANTED-IN-PART and DENIED-IN-PART with respect to Count I; (2) defendant and plaintiffs' Motions are DENIED with respect to Count II; (3) defendant and plaintiffs' Motions are DENIED with respect to Count III; and (4) defendant's Motion is GRANTED and plaintiffs' Motion is DENIED with respect to Count IV.

II. Legal Standards

A. Subject Matter Jurisdiction

Because subject matter jurisdiction is a threshold matter, it must be established before the case can proceed on the merits. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007). Plaintiffs bear the burden of establishing subject matter jurisdiction, and the court may determine whether they have met this burden once they have had an opportunity to be heard on the matter. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir. 1969)). If the court determines that it lacks subject matter jurisdiction, it must dismiss the claim. Steel

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Co., 523 U.S. at 94; Matthews v. United States, 72 Fed. Cl. 274, 278 (2006); Rules of the United States Court of Federal Claims (RCFC) 12(h)(3).

Like all federal courts, the United States Court of Federal Claims (CFC) is a court of limited jurisdiction. The jurisdiction of the CFC is set forth in the Tucker Act, 28 U.S.C. § 1491. The Tucker Act provides that the CFC has jurisdiction to hear claims against the United States founded upon "the Constitution, or any Act of Congress or any regulation of an executive department,... or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). Plaintiffs have brought claims under the FLSA, 29 U.S.C. §§ 201-219. The CFC has jurisdiction over claims brought pursuant to the FLSA. Whalen v. United States, 80 Fed. Cl. 685, 687 (2008); see Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1364-65 (Fed. Cir. 2005).

B. Standard of Review

The parties have cross-moved for summary judgment pursuant to RCFC 56. See Pls.' Mot. 9-10; Def.'s Mot. 1. A motion for summary judgment may be granted only when "there is no genuine issue as to any material fact and... the movant is entitled to judgment as a matter of law." RCFC 56(c)(1). A fact is material if it might significantly affect the outcome of the suit. Anderson v. Liberty Lobby, Inc. (Liberty Lobby), 477 U.S. 242, 248 (1986). Where the moving party has not disputed any facts contained in the non-movant's pleadings, the court assumes all well-pleaded facts to be true and draws all applicable presumptions and inferences from such facts in favor of the non-moving party. See Univ. of W. Va. v. VanVoorhies, 278 F.3d 1288, 1295 (Fed. Cir. 2002).

Failure by a non-moving party to raise a genuine issue of material fact results in the court's granting summary judgment in favor of the moving party. See RCFC 56(c)(1). "The party opposing the motion must point to an evidentiary conflict created on the record; mere denials or conclusory statements are insufficient." SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed. Cir. 1985) (citing Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984)). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Liberty Lobby, 477 U.S. at 247-48 (emphasis omitted).

When parties cross-move for summary judgment, "the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable

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inferences against the party whose motion is under consideration." Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987).

C. Claims For Overtime Compensation Under the FLSA

To prevail on a FLSA claim for an overtime activity suffered or permitted to be performed, plaintiffs must carry their burden of proof on all of the elements of the particular claim. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946). "First, plaintiffs must establish that each activity for which overtime compensation is sought constitutes 'work.'" Bull v. United States, 68 Fed. Cl. 212, 220 (2005), aff'd, 479 F.3d 1365 (Fed. Cir. 2007). Second, plaintiffs must establish that the hours of work performed are not de minimis, id. (citing Anderson, 328 U.S. at 693; Bobo v. United States, 136 F.3d 1465, 1468 (Fed. Cir. 1998); Adams v. United States, 65 Fed. Cl. 217, 222 (2005)), and that the work performed is "reasonable in relation to the...