U.S. v. Cook

• Decision Date: 14 July 1986
• Docket Number: No. 86-833,86-833
• Parties: 27 Wage & Hour Cas. (BN 1307, 105 Lab.Cas. P 34,821, 5 Fed.R.Serv.3d 1073 The UNITED STATES, Appellant, v. Lester COOK, et al., Appellees. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 987

795 F.2d 987

27 Wage & Hour Cas. (BN 1307, 105 Lab.Cas. P 34,821,

5 Fed.R.Serv.3d 1073

The UNITED STATES, Appellant, v. Lester COOK, et al., Appellees.

Appeal No. 86-833.

United States Court of Appeals Federal Circuit.

July 14, 1986.

Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for appellant. With him on brief, were Richard K. Willard, Asst. Atty. Gen. and David M. Cohen, Director. Anne E. Stanley, Asst. U.S. Atty., E.D. of N.Y., of counsel.

Ira M. Lechner, Washington, D.C., argued, for appellees.

Before MARKEY, Chief Judge, NICHOLS, Senior Circuit Judge, and BISSELL, Circuit Judge.

MARKEY, Chief Judge.

Interlocutory appeal from an order of the United States District Court for the Eastern District of New York, Civil Action No. CV-85-1467 (E.D.N.Y. Dec. 23, 1985): (1) ordering the United States to disclose names and addresses of certain federal firefighters and law enforcement personnel, thus enabling plaintiffs to alert those employees of the availability of liquidated damages under the Fair Labor Standards Act of 1938, 29 U.S.C. Secs. 201-219 (1982) (FLSA); and (2) tolling the statute of limitations "as to any claims of the employees as to whom discovery has been directed." We affirm the portion of the order compelling production and remand the portion purporting to toll the statute with instructions to vacate that portion as prematurely issued.

Background

Plaintiffs are seven federal firefighters. Because of the enactment of the Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, Sec. 6(c)(1)(A), 88 Stat. 55 (1974), they became entitled to FLSA overtime pay as of January 1, 1975. See generally Zumerling v. Devine, 769 F.2d 745 (Fed.Cir.1985). They were awarded that overtime pay and now seek liquidated damages. Thus we deal here only with liquidated damages due employees who have been paid for overtime.

With respect to overtime hours worked after January 1, 1978, the 1974 amendments provided that firefighters and law enforcement employees would be entitled to FLSA overtime pay for hours worked in excess of the lesser of (1) 216 hours in a 28 day work period, or (2) "the average number Relying on the Supreme Court's decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), which struck down the 1974 amendments' application of FLSA to state and local governments, the Secretary of Labor excluded state and local firefighters and law enforcement employees from the study. ¹ Based upon the hours worked by those federal employees, the Secretary established 216 as the number of hours in a 28 day work period after which firefighters (186 hours for law enforcement employees) were entitled to FLSA overtime pay beginning in 1978.

                of hours (as determined by the Secretary of Labor pursuant to [a study mandated by] section 6(c)(3) of the Fair Labor Amendments of 1974) in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calender year 1975."    29 U.S.C. Sec. 207(k)
                

In Jones v. Donovan, 91 Labor Cas. (CCH) p 34,008 (D.D.C.1981), aff'd mem., 675 F.2d 1340 D.C.Cir.1982), the District Court for the District of Columbia ordered the Secretary to recompute the overtime standards by including state and local data. The Secretary's new study concluded that the number of hours over which federal firefighters and law enforcement personnel should have been entitled to overtime pay was 212 and 171 hours, respectively. 48 Fed.Reg. 40,518-19 (1983). Accordingly, the Office of Personnel Management directed that all federal firefighters and law enforcement personnel, including those not involved in any suit, be awarded overtime pay based upon the Secretary's new study.

Section 16(b) of FLSA, 29 U.S.C. Sec. 216(b), provides that any employer (including any federal agency) who violates the overtime provisions of Sec. 7, 29 U.S.C. Sec. 207, shall be liable to affected employees in the amount of their unpaid overtime compensation and "in an additional equal amount as liquidated damages." If, however, the employer establishes that the acts giving rise to FLSA liability were undertaken in "good faith" and that it "had reasonable grounds for believing" that its actions were not a violation of FLSA, the court has discretion to award no liquidated damages or to award any amount that does not exceed the amount specified in Sec. 16. 29 U.S.C. Sec. 260.

In Jones v. Donovan, 102 Labor Cas. (CCH) p 34,637 (D.D.C.1984) (Jones II ), and in Lanehart v. Marshall, 26 WH Cas. 1654 (D.Md.1984), certain federal firefighters and law enforcement personnel sued the United States for liquidated damages. Both district courts found that the government had acted in good faith and on reasonable grounds when it failed to include in the Secretary's study the hours worked by state and local government personnel. Nevertheless, those courts awarded partial liquidated damages equal to the amount of interest due on the plaintiffs' unpaid overtime compensation.

The government did not appeal from either Jones II or Lanehart. As required by the court, it paid liquidated damages to the plaintiffs in those cases. The government awarded overtime pay to all employees who were entitled to it, plaintiffs and non-plaintiffs. It was not at liberty to voluntarily pay liquidated damages to employees who had been awarded overtime pay but were not plaintiffs in Jones II or Lanehart.

District Court Proceedings In This Case

On April 19, 1985, plaintiffs commenced this action seeking liquidated damages under FLSA. On September 17, 1985, they served an interrogatory requesting "the name and last known home address within [the Eastern District of New York] of each federal employee employed by [the federal government] at any time from April 19, 1979 through January, 1984" who had received overtime pay because of the revised standard set by the Secretary's new study and who was not a plaintiff in either Jones II or Lanehart. The stated purpose of the Anticipating the government's objection, plaintiffs moved to compel answer in respect of fourteen governmental agencies. The government objected on the grounds that: (1) FLSA does not authorize a court order requiring an employer to divulge the names of those who could be plaintiffs in an "opt-in" class action; and (2) the discovery sought was overly broad and unduly burdensome. On October 29 and November 7, 1985, a U.S. magistrate conducted an evidentiary hearing at which the government attempted to demonstrate the time and effort required to answer the interrogatory.

interrogatory was to enable "plaintiffs' counsel to send written notice to other potential plaintiffs in this action."

On November 25, 1985, the magistrate determined that the district court has the power in its discretion to compel the disclosure sought, and, having balanced the burden of production with the plaintiffs' need, ordered the government to produce the names and addresses with respect to five agencies. ²

The district court affirmed the rulings of the magistrate and certified the question concerning its power to order the production. 28 U.S.C. Sec. 1292(b). At the government's request, the district court stayed all proceedings. It then went on to toll the statute of limitations for those the plaintiffs would notify of their right to "opt in."

Because the jurisdiction of the district court was based on 28 U.S.C. Sec. 1346(a)(2) (The Little Tucker Act), this court has jurisdiction of the appeal. 28 U.S.C. Sec. 1295(a)(2).

ISSUES

Whether the district court abused its discretion in: (1) compelling the United States to produce the requested names and addresses; and (2) tolling the statute of limitations.

OPINION

(1) Compelling Discovery

(a) Power of the District Court

Plaintiffs brought this suit under Sec. 16(b) of FLSA, 29 U.S.C. Sec. 216(b). That section provides that an action for damages under FLSA may be brought (emphasis added):

by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No 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 in the court in which such action is brought.

Unlike Fed.R.Civ.P. 23, under which a class member must "opt out" not to be bound, a "class" member under Sec. 16(b) must "opt in" to be bound. See Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir.1975); LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288-89 (5th Cir.1975). The Portal-To-Portal Act of 1947, Pub.L. No. 80-49, ch. 52, Sec. 5(a), 61 Stat. 84, 87 (1947), in a section entitled "Representative Actions Banned", deleted provisions in the FLSA relating to the designation by employees of an agent or representative to maintain an action under Sec. 16(b) for and on behalf of all employees similarly situated, see FLSA, ch. 676, Sec. 16(b), 52 Stat. 1060, 1069 (1938), and added the opt-in provision. ³

Prompted by its dissatisfaction with the Supreme Court's decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), Congress enacted The Portal-To-Portal Act "to define and limit the jurisdiction of the courts," ch. 52, Sec. 1(b)(3), 61 Stat. 85. Anderson had expanded the scope of compensable "working time" for FLSA purposes by including time spent in walking on an employer's premises to a work station and in conducting certain preliminary and incidental activities. Congress intended that The Portal-To-Portal Act would abate several thousand lawsuits filed under FLSA to recover wages for the time workers were in transit to and from work stations. See H.R. Rep. 71, 80th Cong., 1st Sess. 4, reprinted in 1947 U.S. Code Cong. Serv. 1029, 1031.

A passage in the legislative history, upon which the government heavily relies here, reads:

The procedure in these suits follows a general pattern. A petition is...