Free Response to Motion - District Court of Federal Claims - federal

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No. 01-495C (Judge Bruggink)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

KENT CHRISTOFFERSON et al., Plaintiffs, v. THE UNITED STATES, Defendant.

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO AMEND THE COMPLAINT

PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director STEVEN J. GILLINGHAM Assistant Director Commercial Litigation Branch Civil Division Department of Justice 1100 L St., N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 616-2311

OF COUNSEL: RAYNA G. ELLER, ESQ. Senior Attorney Office of the General Counsel Bureau of the Census Suitland MD 20746-24

March 23, 2007

Attorneys For Defendant

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TABLE OF CONTENTS PAGES DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO AMEND THE COMPLAINT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. B. C. D. II. The Complaint and Its Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2003-2004: The Concord Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2004-2005: Mediation and Global Resolution . . . . . . . . . . . . . . . . . . . . . . 3 2005-2006: Summary Judgment Motions and Trial . . . . . . . . . . . . . . . . . 4

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. II. III. IV. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Plaintiffs Unduly Delayed In Amending Their Complaint . . . . . . . . . . . . . . . . . 10 Plaintiffs' Delay In Amending the Complaint Will Prejudice Defendant . . . . . . 15 The Amendment Is Futile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 A. B. C. The Court Lacks Jurisdiction Over The Amendment . . . . . . . . . . . . . . . 19 The Proposed Claims Are Barred By The Statute Of Limitations. . . . . . 25 The Straight Time Claims Are Not Suitable For A Class Action . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

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CONTENTS OF THE APPENDIX Description Exhibit

MOU (Feb. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jan. 5, 2000 Press Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 RCC Organization Chart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Organization of the LCO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Closing Dates of LCOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Trial transcript . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Form D-308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Field Supervisory Census Employee Handbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Field Nonsupervisory Census Employee Handbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 D-308's for Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-30 Job Action Report re Alvin Monroe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Declaration of Viola Lewis-Willis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

TABLE OF AUTHORITIES CASES PAGES

Alfa Laval Separation, Inc. v. United States, 47 Fed. Cl. 305 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 10 Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31 Beebe v. United States, 226 Ct. C 640 F.2d 1283 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Berg et al. v. Newman, -ii-

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982 F.2d 500 (Fed. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Bower v. Jones, 978 F.2d 1004 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Briggs v. United States, 54 Fed. Cl. 205 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Carroll v. United States, 67 Fed. Cl. 82 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Carson v. Giant Food, Inc., 187 F. Supp.2d 462 (D.Md. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Catawba Indian Tribe of South Carolina v. United States, 982 F. 2d 1564 (Fed. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Chaney v. United States, 75 Fed.Cl. 206 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 26 Christofferson v. U.S., 64 Fed. Cl. 316 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14, 23, 26 Christofferson v. U.S., 67 Fed. Cl. 68 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Christofferson v. U.S., 72 Fed. Cl. 541 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Cook v. United States, 855 F.2d 848 (Fed. Cir.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Cooper v. S. Co., 390 F.3d 695 (11th Cir.2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Cupey Bajo Nursing Home v. United States, 36 Fed. Cl. 122 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Datascope Corp. v. Smec, Inc. and Peter Schiff, 962 F.2d 1043 (Fed. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Dynalectron Corp. v. United States, 4 Cl. Ct. 424, 428 (1984), aff'd, 758 F.2d 665 (Fed. Cir. 1984) . . . . . . . . . . . . . . . . . . . 19

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Eastport Steamship Corp. v. United States, 178 Ct. Cl. 372 F.2d 1002 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Ewer v. United States, 63 Fed. Cl. 396 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 29 Filosa v. United States, 70 Fed.Cl. 609 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 First Interstate Bank of Billings v. United States, 61 F.3d 876 (Fed. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10 First Nationwide, 48 Fed. Cl. 248 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Foman v. Davis, 371 U.S. 178 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 15 Garcia v. Johanns, 444 F.3d 625 (D.D.C. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Garcia v. Veneman, 211 F.R.D. 15 (D.D.C. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Halferty v. Pulse Drug Company, Inc., 821 F.2d 261 (5th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Hays v. United States, 16 Cl. Ct. 770, 772 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Hermes v. United States, 58 Fed. Cl. 409 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Hickman v. United States, 43 Fed. Cl. 424 (1999), aff'd, 232 F.3d 906 (Fed. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 8 Intrepid v. Pollock, 907 F.2d 1125 ( Fed. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289 (3d Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 John R. Sand & Gravel Co. v. United States, 457 F.3d 1345 (Fed. Cir.2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 -iv-

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Jones v. United States, 6 Cl. Ct. 531, 533 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Markey, et al. v. U.S., 27 Fed. Cl. 615 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 24 McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Mitsui Foods, Inc. v. United States, 867 F.2d 1401 (Fed.Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Oja v. U.S. Army Corps of Engineers, et. al., 440 F.3d 1122 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Rockwell v. United States, 70 Fed. Cl. 114 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ronald R. Edes, et al., v. Verizon Communications, Inc., et. al., 417 F.3d 133 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Senza-Gel v. Seifhart, 803 F.2d 661 (Fed. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Shoshone Indian Tribe of the Wind River Reservation v. United States, 71 Fed.Cl. 172 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Spagnola v. Stockman, 732 F.2d 908 (Fed. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Spalding & Son, Inc. v. United States, 22 Cl. Ct. 678, 680 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10 Sprague v. Gen. Motors Corp., 133 F.3d 388 (6th Cir.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 St. Paul Fire & Marine Ins. Co. v. United States, 31 Fed. Cl. 151 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 18 Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267 (4th Cir.1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 State of Alaska v. United States, -v-

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15 Cl. Ct. 276 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 18 Te-Moak Bands of W. Shoshone Indians of Nevada v. United States, 948 F.2d 1258 (Fed. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 10, 13 U.S. Dept. of Agriculture, 439 F.3d 723 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 United States v. Mitchell, 445 U.S. 535 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 United States v. Sherwood, 312 U.S. 584 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 United States v. Testan, 424 U.S. 392 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Vann v. United States, 190 Ct. Cl. 546, (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Zachery v. Texaco Exploration and Prod., Inc., 185 F.R.D. 230 (W.D.Tex.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 STATUTES 5 C.F.R. § 178.105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 5 C.F.R. § 531 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 5 C.F.R. § 534.201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 5 C.F.R. § 534.403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 5 C.F.R. § 551.202(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 5 U.S.C. § 550.904 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 5 U.S.C. § 5301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 5 U.S.C. § 5385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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5 U.S.C. § 5504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 5 U.S.C. § 5505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 5 U.S.C. § 5541 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5 U.S.C. § 5550 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5 U.S.C., § 5596 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 13 U.S.C. § 23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 28 U.S.C. § 1491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 28 U.S.C. § 2501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 25 29 U.S.C. § 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS KENT CHRISTOFFERSON et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 01-495C (Judge Bruggink)

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO AMEND THE COMPLAINT Defendant respectfully opposes plaintiffs' motion for leave to amend the First Amended Complaint ("Pl. Mot.") to add claims for work performed within a regular workweek ("StraightTime Claims"). The proposed amendment does not serve the interest of justice. To the contrary, the amendment has been unduly delayed, is prejudicial to defendant, and would be futile, inasmuch as the Court possesses no jurisdiction to entertain these claims, which, in any event, are barred by the statute of limitations. STATEMENT OF THE ISSUES 1. Whether plaintiffs have unduly delayed in seeking to amend the First Amended Complaint. Whether any amendment of the First Amended Complaint would be futile. STATEMENT OF THE CASE I. Course of Proceedings A. The Complaint and Its Amendments

2.

This lawsuit was filed in August 2001, by former employees of the United States Bureau of the Census ("Census"). The complaint alleged that Census required 2000 Decennial Census ("Decennial") field workers, specifically, Field Operation Supervisors ("FOS"es), Crew Leaders, and Enumerators, to work overtime, but failed to compensate them, in violation of the Fair Labor

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Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Complaint ¶¶ 1-4. The Complaint asserted that the overtime was worked because it was "generally impossible for plaintiffs during this time period to perform all of their required tasks within the limits of an eight-hour day or forty-hour workweek," or because supervisors demanded that employees accomplish tasks in "whatever" time it took (id. ¶¶ 26-27). The Complaint also challenged Census's classification of the FOS position as FLSA-exempt. Id. at ¶ 50. In August 2003, plaintiffs filed their First Amended Complaint, adding that, if the FOSes were properly classified as FLSA-Exempt, they were nonetheless entitled to pay pursuant to the Federal Employees Pay Act ("FEPA"), 5 U.S.C. §§ 5541-5550. In February 2004, plaintiffs filed a motion to amend the complaint further to add a FEPA claim on behalf of the Crew Leaders and Enumerators, which we opposed. See Motion For Leave To File Second Amended Complaint. That motion was stayed, pending settlement discussions. Order of Judge Braden dated March 16, 2004. B. 2003-2004: The Concord Proceedings

Although the parties briefed and argued whether the suit may proceed as a class action, the Court has not ruled upon that motion. Transcript of Proceedings, April 15, 2003. In the meantime, the Court adopted the parties' suggestion that they begin discovery and focus upon the claims of a single Local Census Office ("LCO"). At plaintiffs' suggestion, the Court ordered that the Concord California LCO be that office. Id. at 33-34. The parties then engaged in two years of discovery concerning: the Bureau's policies and practices generally, the policies and practices of Concord LCO's regional headquarters (Seattle), the policies and practices of the LCO itself, and the individual Concord claims. During that effort, the parties served a number of

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interrogatories and document requests (for example, plaintiff, served 11), and raised a number of discovery issues ­ some of which they resolved themselves, some of which were resolved by the Court. Defendant took approximately 52 depositions; plaintiffs took approximately 12, eight pursuant to RCFC 30(b)(6). Following the close of the Concord discovery, the Court scheduled a trial to begin in March 2004. Order of Judge Braden dated October 7, 2003. After beginning their preparation for the trial, however, the parties informed the Court that they wished to resolve the case by a means other than trial. See Order of Judge Braden, March 16, 2004. C. 2004-2005: Mediation and Global Resolution

Thereafter, with the Court's assistance, the parties began developing a procedure designed to resolve the bulk of the more than 7,000 claims presented in this lawsuit. This process began with a Court-assisted mediation session in San Francisco, in August, 2004, and included many in-person and telephonic exchanges. In February 2005, these efforts culminated in an alternative resolution Memorandum of Understanding ("MOU"). Defendant's Exhibit ("Def. Ex.") 1. The centerpiece of the MOU was a questionnaire, to be distributed to all claimants, informing them of the particular nature of this lawsuit (a claim for unpaid FLSA overtime) and posing questions concerning the particulars of their claims, including, among other things, the identity of their supervisors. The parties' eventual study of the questionnaire responses was to inform their classifying the claims into "strata." A particular stratum's claims were to be resolved upon the basis of the deposition and discrete negotiation of selected members of the stratum. Final agreement on the questionnaire consumed well over a year, as the parties sought to identify the relevant questions and the clearest way to express them, to ensure the forms would yield meaningful responses. During this same time, the parties engaged in

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settlement negotiations of those Concord plaintiffs who appeared for deposition before the close of discovery. D. 2005-2006: Summary Judgment Motions and Trial

As part of their agreed-upon procedure, the parties identified a number of issues that were likely to affect an unforseen number of plaintiffs in addition to the Concord plaintiffs, including: (1) whether the Census's classification provided grounds for equitable tolling, (2) whether a claim that Census had not paid FLSA overtime for hours worked over eight in a day stated a claim, (3) the propriety of the FOS FLSA classification, and (4) whether plaintiffs' constructively-ordered overtime claim stated a FEPA claim. In Christofferson v. U.S., 64 Fed. Cl. 316 (2005), the Court resolved the first two issues in the Government's favor, deferred the first pending the Supreme Court's possible review of Doe v. United States, 372 F.3d 1347 (Fed. Cir. 2004), and ordered pretrial briefing and a trial concerning the classification issue. On July 29, 2005, following a one-week trial in San Francisco, the Court resolved the FOS-classification issue in plaintiffs' favor. Christofferson v. U.S., 67 Fed. Cl. 68 (2005). In May 2006, plaintiffs requested that the Court find that the claims of certain consenters were subject to equitable tolling and, therefore, not subject to the FLSA's statute of limitations, arguing that these plaintiffs did not know they could have been included in the lawsuit, until the Court's ruling holding that the FOSes had been misclassified. Christofferson v. U.S., 72 Fed. Cl. 541 (2006). The Court denied that motion, ruling that the fact that the Census had classified them as FLSA-exempt did not excuse them from meeting the statute of limitations for challenging that classification. Id. at 544. Following the decision concerning the FOS FLSA status, defendant provided plaintiffs

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with payroll information for all the consenters in the lawsuit for whom social security numbers were provided, the parties finalized the questionnaire, which was distributed by plaintiffs, plaintiffs collected the response data and entered parts of them into a database, which plaintiffs provided to defendant's counsel. The parties' negotiators and Census have reached virtual agreement on settlement figures for most of the 51 Concord claims at issue; the balance are pending the resolution of plaintiffs' motion to amend. II. Background To conduct the 2000 Decennial, Census hired more than 800,000 temporary employees, who were employed in 520 LCOs throughout the country. Def. Ex. 2. The 520 LCOs fell under the authority of 12 temporary Regional Census Centers ("RCC"). Def. Ex. 3. Each LCO was managed by a Local Census Office Manager, who, through an office staff, managed the census taking, which was conducted by a field staff, comprising Enumerators,1 Crew Leaders,2 and FOSes. Def. Ex. 4. The last of the LCOs closed in October 2000. Def. Ex. 5. Plaintiffs were hired under excepted service, temporary appointments, with specific "Not-to-Exceed" dates, and intermittent work schedules, meaning they had no consistentlyprescribed work hours, which could be changed to accommodate peak workload periods. Def. Ex. 6 at 415-418. Employees with intermittent work schedules were hired only for the length of a particular Decennial operation, were paid weekly for actual hours worked, and did not earn

Enumerators performed field enumeration which involved verifying addresses, canvassing, listing and interviewing. Def. Ex.7. Crew Leaders supervised and trained Enumerators, coordinated their operations, regularly met with Enumerators to distribute assignments and monitor work in progress, and reviewed and certified their daily payroll forms. Def. Ex. 7. -52

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leave. Def. Ex. 32 ¶ 5. Plaintiffs were not paid according to the General Schedule. Def. Ex. 6 at 420. Rather, their rate of pay was based upon a study performed by a Census contractor. The pay rates of the enumerators were set at a percentage of the average earnings of the work force of a particular locality. Id. at 423-24. In some locations, adjustments to the rates were made before Decennial operations began for special circumstances, and rates were raised during Decennial operations when recruiting goals were not being met in certain localities. Id. The pay rates for Crew Leaders and FOSes were set at a rate higher than the Enumerator rate in a given area, and the FOS rate fell within a range of comparable GS Schedule grades and steps, which also varied by location. Id. at 429-430, 434-435. To ensure employees were paid for hours actually worked, each employee was required to submit a Form D-308, Daily Pay and Work Record, for each day worked. Def. Ex. 7. This pay record included training time and/or regular production hours. Id. The D-308 required the employee's signature, under the following certification: "Under penalty of fine and/or imprisonment, I certify that the information on this form is true and correct to the best of my knowledge. Id. The employee's supervisor was required to sign the form certifying as follows: "I have reviewed the entries made and they appear to be reasonable and accurate." Payroll documents would not be processed without the required signatures and dates. Def. Ex. 8 at 3-15; Def. Ex. 9 at 3-15. Employees were advised to keep copies of the D-308's, to compare to their earnings statement and paychecks, and to notify their supervisors of discrepancies. Id. Employees also provided telephone numbers of the Payroll and Administrative Support System and the Census Employee Hotline, to which they could report payroll and administrative

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problems (id. at 3-18), and file administrative grievances. Id. at 5-4 - 5-6. The supervisors' responsibilities included reviewing the daily timesheets ­ preferably with the employee ­ to ensure that the employee was claiming only the hours actually worked. Def. Ex. 8 at 1-5 and 8-9 - 8-11. Enumerator timesheets were reviewed by Crew Leaders; Crew Leader time sheets were reviewed by FOSes. Id. Supervisors also monitored production standards ­ the number of completed questionnaires per hour for each enumerator ­ using management reports. Id. at 8-8. If an enumerator was not meeting production standards, it was the supervisors' responsibility to try to increase productivity by retraining the employee, helping the employee organize his or her time and material, or accompanying the employee in the field for an hour or two to suggest ways to improve productivity. Id. If there was no immediate improvement within 24-48 hours, the supervisor was to recommend the termination of the employee. Id. Crew Leader and FOS job performance also was evaluated by the progress of their districts. Id. If performance did not improve after notice and an improvement opportunity period, their appointments could be terminated. Id. ARGUMENT I. Applicable Law RCFC 15(a) provides that, after a response to the complaint has been served: "a party may amend the party's own pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." The party who seeks leave to amend a complaint bears the burden of showing that the delay in filing the amendment is justified. Rockwell v. United States, 70 Fed. Cl. 114, 122 (2006) (citing Alfa Laval Separation, Inc. v. United States, 47 Fed. Cl. 305, 312-13 (2000) and Te-Moak Bands of W. Shoshone

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Indians of Nevada v. United States, 948 F.2d 1258, 1263 (Fed. Cir. 1991)). A trial court has broad discretion to permit or deny a proposed amendment of a complaint. Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321 (1971). "[W]hether to allow leave to amend pleadings . . . is within the sound discretion of the trial court." First Interstate Bank of Billings v. United States, 61 F.3d 876, 881 (Fed. Cir. 1995); accord Foman v. Davis, 371 U.S. 178, 182 (1962); Hickman v. United States, 43 Fed. Cl. 424, 439 (1999), aff'd, 232 F.3d 906 (Fed. Cir. 2000). Although leave to amend is ordinarily "freely given when justice so requires," it is not automatic. To the contrary, a denial of leave is warranted when: (1) the amendment would be futile; (2) the movant has engaged in undue delay; (3) the movant has acted in bad faith; (4) the movant has acted with a dilatory motive; (5) the movant has repeatedly failed to cure deficiencies; and (6) the late amendment would unduly prejudice the opposing party. Te-Moak Bands, 948 F.2d at 1260-61; Mitsui Foods, Inc. v. United States, 867 F.2d 1401, 1403-04 (Fed.Cir. 1989); St. Paul Fire & Marine Ins. Co. v. United States, 31 Fed. Cl. 151, 153 (1994). Indeed, "[t]he existence of any one of these criteria is sufficient to deny a motion to amend, the theory being that the amendment would not be necessary to serve the interests of justice under the circumstances." Spalding & Son, Inc. v. United States, 22 Cl. Ct. 678, 680 (1991); Alfa Laval, 47 Fed. Cl. at 312; Hays v. United States, 16 Cl. Ct. 770, 772 (1989) ("criteria are in the disjunctive, i.e., satisfaction of one is sufficient to deny the motion" to amend). Plaintiffs' primary legal argument is that, generally, courts should not be overly technical in enforcing the rules of pleadings and should grant motions to amend freely. But that is only half the rule. As this Court has explained, "Hornbook law teaches . . .that leave to file an

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amended complaint shall be freely given "when justice requires . . . ." Hays, 16 Cl. Ct. at 772 (emphasis in original) (rejecting plaintiffs' effort to extend the statute of limitations period applicable to an FLSA complaint). Here, as we demonstrate below, the interest of justice and this Courts' prime directive, RCFC 13 require that leave be denied, because the amendment comes with undue delay, is prejudicial and, in any event, would be futile.4 Plaintiffs assert, generally, that the interest of justice would be served by permitting joinder because, otherwise, they would be deprived of pay "they earned through their hard work." Pl. Mot. 10. However, plaintiffs had multiple opportunities to collect any pay due, starting with the correct recordation of their hours. Regardless, as this Court has explained, a claim's merits are beside the point: Statutes of limitation are vital to the welfare of society and are favored in the law. They are not mere "technical" rules, but rather are "substantial and meritorious." Statutes of limitations serve an important role in promoting justice by "protecting parties from the prosecution of stale claims, when, by loss of evidence from death of some witnesses, and the imperfect recollection of others, or the destruction of documents, it might be impossible to establish the truth." The expiration of the applicable statute of limitations bars a plaintiff's claims "without regard to whether the claim would otherwise be meritorious."

RCFC 1 provides that the Court's rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." Notably, the authorities plaintiffs' cite are those in which the court found none of the factors that apply here ­ undue delay, prejudice, and futility. For example, in State of Alaska v. United States, 15 Cl. Ct. 276 (1988), the Court found that there was no prejudice or futility. Id. at 270; see also Senza-Gel v. Seifhart, 803 F.2d 661 (Fed. Cir. 1986) (no abuse of discretion when no evidence of prejudice offered); St. Paul Fire & Marine, 31 Fed. Cl. at 153 (leave to amend granted, given "total want of showing" of undue prejudice, noting prejudice of amendments requiring significant research "shortly before trial," and that the trial date was approximately seven months away) (emphasis in original). -94

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Chaney v. United States, 75 Fed.Cl. 206, 212-13 (2007) (citations omitted). II. Plaintiffs Unduly Delayed In Amending Their Complaint A court may deny a party leave to amend its pleading if the motion was filed after a period of undue delay. Datascope Corp. v. Smec, Inc. and Peter Schiff, 962 F.2d 1043, 1045 (Fed. Cir. 1992). See, e.g., Te-Moak Bands, 948 F.2d at 1261 (affirming denial of leave to amend after eight-year delay); First Interstate Bank of Billings, 61 F.3d at 881 (four-year delay precluded leave to amend); Alfa Laval, 47 Fed. Cl. at 312-13 (denying leave based upon twoyear delay; collecting cases in which leave was denied upon the basis of the delays of 19-33 months, four years and six years); Cupey Bajo Nursing Home v. United States, 36 Fed. Cl. 122, 132 (1996) (denying leave based upon six-year delay); Spalding & Son, 22 Cl. Ct. 678 (four-year delay precluded leave to amend). A delay is undue when a party knows, or should know, of the facts and circumstances giving rise to an amendment, but waits several years to file it. Id. As this Court has noted, "courts have not hesitated to deny motions to amend that have been filed after significant delay. Delay alone, even without a demonstration of prejudice, has thus been sufficient grounds to deny amendments of pleadings." Alfa Laval, 47 Fed. Cl. at 312l; accord Te-Moak Bands, 948 F.2d at 1262-63 ("at some point in the course of litigation, an unjustified delay preceding a motion to amend goes beyond excusable neglect, even when there is no evidence of bad faith or dilatory motive. Liberality in pleading, does not bestow on a litigant the privilege of neglecting [its] case for a long period of time") (internal quotations omitted) (emphasis in original)). Here, plaintiffs filed their lawsuit in August, 2001 ­ over five and one-half years ago. Now, they seek to add an altogether different cause of action. However, too much water has

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passed under the bridge respecting plaintiffs original cause of action ­ including the fact that discovery has closed on the Concord (test) portion of the case, and the test portion of the case has yielded precisely the benefits the parties and the Court envisioned years ago when it established the test. Specifically, the years of general Decennial, general regional, general Concord and specific Concord-plaintiff discovery have spawned test dispositive motions, a test trial, and two years of settlement negotiations designed to resolve the complaints presented in the First Amended Complaint. Those negotiations, in turn, yielded the MOU, which included lengthy negotiations over the precise questions to be asked of all present plaintiffs ­ questions fashioned to address the claims presented in the First Amended Complaint. Now, the agreedupon deadline for submission of answers to those questions has passed (with the exception of a relatively small number for whom plaintiffs do not have correct social security numbers, which defendant is endeavoring to locate), plaintiffs have collected the data and presented part of it to defendant, and defendant already has begun to inspect the data.5 In short, there is no present basis ­ either Court guidance or bilateral agreements ­ upon which to resolve any new cause of action, although that certainly would have been possible (although still futile) years ago. As a result, defendant will be well within its rights to refuse any claim for attorney fees associated with any new effort required to address claims (including the pending motion) that should and could have been dealt with at the outset (yet another complicating factor). This Court also has held that, "[i]f a plaintiff fails to correct a pleading when given the opportunity to do so, such as during a prior amendment of a complaint, when information

The parties disagree concerning the production of the actual responses to the questionnaires, but there is no doubt that the questionnaires that will be returned have been returned, and do not address the question presented in the proposed amendment. - 11 -

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necessary for such an amendment was available," leave to amend is improper. Forestry Surveys & Data v. United States, 44 Fed. Cl. 485, 489-90 (1999). Here, on August 27, 2003, plaintiffs amended the complaint, without our objection, to add a FEPA count for the relatively small number of supervisory employees in the case.6 Plaintiffs did not seek to include the claims they seek to add now. In 2004, plaintiffs moved to amend their complaint yet again, seeking to add a FEPA cause of action for all plaintiffs. By that point, we did object upon the grounds of undue delay, prejudice and futility, but plaintiffs did not seek to include these claims then, either. Despite this long delay and their previous opportunities, plaintiffs present no reasonable justification for the belated realization of their claims. Plaintiffs' employment as Decennial field workers ended in 2000. They filed their complaint for unpaid overtime in August 2001. There are no new facts surrounding their claims for unpaid straight time that they did not have in their possession in August 2001. The only explanation proffered is that plaintiffs' attorneys did not know the relevant facts: As plaintiffs' counsel has contacted plaintiffs around the country other than the "test case" Concord, CA plaintiffs, it has become apparent that straight time claims are much more prevalent among plaintiffs as a whole than they were among the Concord plaintiffs. Pl. Br. at 9-10. That, however, is no justification for the delay in this case ­ and plaintiffs offer no principle, law, or decision that suggest it might be. Nor can it be. Indeed, the lore of the

By answer dated September 2, 2003, we responded to the complaint. The amendment covered the Field Operations Supervisors ("FOSs"), who were classified as FLSA-exempt, and who, therefore, were not eligible for FLSA during their employment. We consented to that amendment at that earlier date, because the FOSs were few in number, and reported to a single supervisor, whose testimony would be necessary to defend an FEPA complaint. - 12 -

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profession is replete with anecdotes of the client who walks into his lawyer's office the day after the statute of limitations has run ­ and of the advice necessarily given: "Save your money. You're too late." Indeed, the law demands that response. See, e.g., Te-Moak Bands, 948 F.2d at 1261-63 (leave to amend denied because plaintiffs were aware of facts underlying amendment at the time of the original complaint and counsel possessed information in his records years before leave to amend was sought). The reason plaintiffs' motion falls prey to that rule is that, by their own admission, they the individual plaintiffs - possessed the knowledge that underlies the claims at issue. Indeed, it is their conversations with their lawyers that spawned this motion. Yet, plaintiffs offer no legally-cognizable excuse for not having had these conversations before the statute of limitations expired. Instead, as did their unsuccessful 2006 motion to amend, their present motion implies that the locus of inquiry is plaintiffs' attorney's knowledge - not the plaintiffs' knowledge. In 2006, plaintiffs asserted that they were entitled to belatedly add a FEPA claim, because "depositions reveal that for quite a few plaintiffs, the two types of overtime [over 8 hours per day, and over 40 hours per week] were not synonymous." Pl. 2006 Mot at 6. But, the depositions did not reveal the facts to the plaintiffs (who recited these facts at the depositions); the depositions revealed the facts to their counsel. In 2007, plaintiffs return to this well, asserting again that, because "plaintiffs' counsel" learned that Straight-Time Claims were "more prevalent" outside of Concord, plaintiffs are entitled to amend. Pl. Br. 9.7 But, as in 2006, plaintiffs offer no authority for the proposition

Moreover, even if the attorneys' knowledge were relevant, we do not understand the relevance of the knowledge that straight times claims were "more prevalent" outside of Concord. - 13 -

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that their failure to inform or be asked by their own attorneys about their own claims excuses their failure to bring those claims on time. Indeed, if that were the law, it would eviscerate the law of equitable estoppel, which requires proof that one's opponent is culpable for the delay or that the triggering event is "inherently unknowable." E.g., Japanese War Notes Claimants Ass'n. v. United States, 178 Ct. Cl. 630, 634 (1967); accord Christofferson, 64 Fed. Cl. at 326. Plaintiffs also suggest that they were not required to add a claim for straight time until the Court ruled that plaintiffs who worked more than eight hours in a day, but not 40 in a week were not eligible for overtime under the FLSA. Pl. Mot. 12. But, the FLSA clearly defines overtime as hours worked beyond 40 in a week. 29 U.S.C. § 207(a). In any event, the Court's interpretation did not create law, it only recognized that which already was the law ­ an eventuality that plaintiffs could have guarded against with an alternative pleading.8 See Catawba Indian Tribe of South Carolina v. United States, 982 F. 2d 1564, 1570 (Fed. Cir. 1993) ("Any later judicial pronouncements simply explain, but do not create, the operative effect of the law"); accord Hermes v. United States, 58 Fed. Cl. 409, 417 (2003); Jones v. United States, 6 Cl. Ct. 531, 533 (1984) ("In dismissing plaintiff's claim, the court noted that the Supreme Court did not make the law, but merely `threw judicial light upon what had been the law for more than eighty years, as everybody was bound to know'") (quoting Ide v. United States, 25 Ct. Cl. 401 (1890)). But, even if plaintiffs' argument were well-taken, it would apply only to claims of straight time in excess of eight in a day (in weeks when plaintiff did not work 40). However, the Straight-Time Claims are fundamentally different - in part, because of their uniqueness,

They apparently did not, because, as plaintiffs' attorneys candidly admitted in 2006, they did not realize that "for quite a few plaintiffs, the two types of overtime [over 8 hours per day, and over 40 hours per week] were not synonymous." Pl. 2006 Mot. 6. - 14 -

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including claims such as that of Angela Watahomigie, who asserts that she was paid for only eight hours in one week in May when she worked 55 to 60 hours and for four hours in a week when she worked 35-45 hours (Watahomigie Dec. ¶ 29), and Frank Santiago who claims he was not allowed to report more than four hours a day because he was told the Government was running out of money. Santiago Dec. ¶ 2.10 Finally, plaintiffs attempt to shift the blame for their litigation decisions to defendants's counsel by claiming that "[d]uring negotiations on the Concord plaintiffs' claims, counsel for plaintiffs and defendant discussed settlement of the incidental Straight-Time Claims, but it was not until October 31, 2006 that defendants made it clear that it would not negotiate payment of Straight-Time Claims." Pl. Br. at 12. Plaintiffs fail to note that those were compromise claims in the context of FLSA claims, do not even note when that offer was first proposed, and do not and cannot assert that defendant's counsel ever assured them any such claims would be settled. Absent any such guarantee, plaintiffs only recourse ­ one their admitted knowledge of these cases indicates should have been exercised much earlier ­ was to seek to amend the complaint immediately. III. Plaintiffs' Delay In Amending the Complaint Will Prejudice Defendant A motion to amend the complaint is properly denied if the amendment would cause undue prejudice to the non-movant. Foman v. Davis, 371 U.S. at 182; First Nationwide v.

Ms. Watahomigie's payroll records show that she was paid for the eight-hour week and the four-hour week in the pay period ending July 8, 2000, the same time pay period in which she was paid for 40 hours worked the week ending June 1, 2000. Def. Ex. 30. In fact, Mr. Santiago did report hours over four, though, most often reported well under four hours. Def. Ex. 25. - 15 10

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United States, 48 Fed. Cl. 248, 256 (2000). At its most fundamental level, the proposed amendment is objectionable, because of its "bait and switch" character. The Government elected to resolve these cases amicably, based upon the posture of the case at the time of its election. The Government (and plaintiffs) then invested a significant effort and consumed years in the process resolving that kind of case.11 Now, the Government is asked either to maintain that commitment or forfeit the benefit of its commitment, and then have to embark upon a wholly new effort to resolve the new cause of action. The passage of time also has a particularly keen effect upon the Government's ability to defend itself, because the very timekeeping system that the amendment would challenge is based upon plaintiffs' documentation of their hours worked and plaintiffs' certification of their documentation's accuracy. Def. Ex. 7; Def. Ex. 8 at 3-15; Def. Ex. 9 at 3-15. To allow plaintiffs to pull the rug out from underneath that system at this late date effectively deprives defendant of a reasonable opportunity to defend. Indeed, even after a delay of just a few years, an employee's belated challenge to his or her own time card is difficult to defend. Yet, here, defendant must grapple with claims that, potentially, remain legally ripe for up to six years. (By contrast, the FLSA claims reach back only two to three years, and were first presented within one to three years of their accrual). To defend against such a claim, defendant would have to examine hard copies of plaintiffs' time sheets (one per day) to determine what hours plaintiff certified at the time. (By contrast, for FLSA claims, defendant would focus only upon those weeks in which plaintiffs worked at or

And, time is important, because the 2010 Decennial is looming and Census wanted to resolve these cases well in advance of that operation. - 16 -

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near 40 hours per week, as demonstrated by a review of its electronic records; to defend a FOS classification challenge, defendant would focus upon the duties of FOSes in a particular LCO). Next, Census attorneys and employees, who would be strangers to the relevant witnesses, would attempt to decipher the supervisor's handwriting to determine who certified the reasonableness of the hours claimed. Def. Ex. 32 ¶ 3. However, the supervisors also were temporary employees, but Census has retained no organizational charts showing who supervised these plaintiffs. Id, Defendant then would be faced with the nearly-impossible task of locating those individuals (using address information over six years old), hoping they would recall the plaintiff's specific circumstance, on particular days, long ago. That this will be a virtually impossible task is established by plaintiffs themselves, who, in one declaration after another, assert that they were victimized by one or more supervisors whose names they cannot now recall. Declaration of Jacqueline Cage ¶ 1 ("I do not remember my supervisors' names . . . ); Declaration of Linda Chan ¶ 1 ("Another supervisor was Charles, who was also Italian, I no longer remember his last name."); Declaration of Ethel Lockhart (unidentified supervisor); Declaration of Maria Lopez-Kallis ¶ 1 ("My supervisor during the Census was also employed as a deacon at a local church; his assistant was a Polish woman, whose name I cannot remember"). Under these circumstances, plaintiffs' delay deprives defendant of the very benefit the statute of limitations was designed to afford: to "prevent plaintiffs from sleeping on their rights and to prohibit the prosecution of stale claims." Ronald R. Edes, et al., v. Verizon Communications, Inc., et. al., 417 F.3d 133, 141 (1st Cir. 2005). Thus, plaintiffs' assertion that Census can simply begin to investigate these new claims now ignores the prejudice their delay has occasioned.

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The Government (and the FLSA-only plaintiffs) also are prejudiced by the fact that the parties already have advanced this case to the point of agreeing upon and beginning to implement a procedure for settling the claims presented in the First Amended Complaint. For its part, to avoid the time and expense of further litigation, the Government agreed to forego formal discovery of the non-Concord claims, agreed to settle claims of FOSes for whom Census has historically claimed an exemption, and devoted years of effort to the design and implementation of an alternate procedure. Plaintiffs' assertion that the Government simply can begin discovery now is only an assumption. It ignores the fact that: the Government chose to make agreements based upon the complaint as it existed; and that both parties expended a great effort to crafting a questionnaire designed to resolve FLSA complaints ­ not straight time complaints. Finally, any need for the Government to investigate Straight Time Claims necessarily diminishes the value of the present settlement procedure, by which the Government has agreed to settle the FLSA cases upon limited information ­ because, if the Government will be required to locate supervisors to ask them about the Straight Time Claims, it might just as well ask them about the FLSA claims. IV. The Amendment Is Futile When futility is asserted as a basis for denying a proposed amendment, "courts will discern whether a pleading is frivolous and insufficient on its face or has been adequately addressed in the prior complaint." St. Paul Fire & Marine, 31 Fed. Cl. at 155 (quoting State of Alaska v. United States, 15 Cl. Ct. 276, 280 (1988)). As this Court has recognized, futility includes a situation "where the proposed claim would not withstand a motion to dismiss." Shoshone Indian Tribe of the Wind River Reservation v. United States, 71 Fed.Cl. 172 (2006); accord Bower v. Jones, 978 F.2d 1004, 1008 (7th Cir. 1992) ("an amendment may be futile when

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it fails to state a valid theory of liability, or could not withstand a motion to dismiss" (citations omitted)); Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (amendment futile because would not withstand statute of limitations defense). Here, amendment would be futile, because plaintiffs fail to identify a cognizable, i.e., "money-mandating" cause of action, and the claims at issue are beyond the Court's jurisdictional statute of limitations, 28 U.S.C. § 2501. A. The Court Lacks Jurisdiction Over The Amendment.

This is a court of limited jurisdiction. Dynalectron Corp. v. United States, 4 Cl. Ct. 424, 428 (1984), aff'd, 758 F.2d 665 (Fed. Cir. 1984). Absent congressional consent to entertain a claim against the United States, the Court lacks authority to grant relief. United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Sherwood, 312 U.S. 584, 586 (1941). The central provision granting consent to suit in this Court is the Tucker Act, 28 U.S.C. § 1491, which authorizes this Court to consider claims based 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." The Tucker Act itself, however, does not create a substantive right of recovery against the United States. Testan, 424 U.S. at 398; Eastport Steamship Corp. v. United States, 178 Ct. Cl. 599, 605-07, 372 F.2d 1002, 1007-09 (1967). Accordingly, a claimant must identify a contract or some other provision of law that mandates compensation. United States v. Mitchell, 445 U.S. 535, 538 (1980). The burden to establish jurisdiction rests with the plaintiffs. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936). Here, plaintiffs make no effort to identify a money-mandating statue or regulation that

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affects them. Indeed, their brief does not mention jurisdiction, despite the fact that this was the focus of defendants' "legal authority," which, plaintiffs assert, they needed to study before they could file this motion. Pl. Br. 9, 13 (explaining that plaintiffs' counsel "needed to research the legal grounds for a cause of action for unpaid straight time wages."). Instead, they point generally to various regulations that define one or more Federal employee pay systems. "Proposed Second Amended Complaint" ("Prop. Compl.") ¶ 25 ("Office of Personnel Management regulations at Title 5 of the Code of Federal Regulations, Parts 530, 531, 532, 534, 536, 550, and 551 mandate the rates of pay for federal employees at various occupations, levels, grades and employment status, and under various circumstances"). However, these regulations do not confer jurisdiction upon this Court, plaintiffs do not explain how they might, and, even a cursory review demonstrates they do not. Plaintiffs' vague approach to its burden evokes the similar approach taken by the plaintiffs in Markey, et al. v. U.S., 27 Fed. Cl. 615 (1993). There, plaintiffs sought interest on an Equal Employment Opportunity Commission back pay award. They contended the Back Pay Act entitled them to such interest. When challenged to identify a basis for this Court's jurisdiction, plaintiffs cited 5 U.S.C. §§ 5504-5505 (which describe pay periods and the calculation of pay) and 5 U.S.C. §§ 5301-5385, which set forth Federal pay rates. The Court held that these various pay-related statutes did not create an entitlement to pay; rather, they specified only the timing and calculation of pay. Id. at 624. That also is true of the various portions of 5 C.F.R. relied upon by plaintiffs here. In general, these regulations establish pay systems, procedures, and limits, and establish special kinds of pay for which plaintiffs could not possibly qualify. In many cases, the cited

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provisions do not mandate pay even for those to whom they do apply. For example, 5 C.F.R. § 531, Subpart E, establishes the quality step increase, but does not require it. 5 C.F.R. § 534.403 concerns performance awards for career appointees in the Senior Executive Service, but does not require them. 5 C.F.R. § 534.201 authorizes agencies to pay stipends to certain studentemployees in government hospitals, but does not mandate the payment of any particular stipend. The sections that do mandate pay do not apply to Decennial employees (as those mentioned above do not). For example, although 5 U.S.C. § 550.904 requires the payment of hazard pay differential in specific circumstances, none of those circumstances apply to the Decennial job duties, and plaintiffs do not assert otherwise. Similarly, 5 C.F.R., Part 530, Subpart C, which authorizes special rates for retention, also does not apply to the 2000 Decennial employees. Nor does 5 C.F.R., Part 531, Subpart D, which governs within-grade increases for employees paid under the General Schedule. Indeed, plaintiffs have made no effort to demonstrate that any of the myriad regulations they cite support this Court's jurisdiction ­ and, in most cases, simply reading the parts' titles demonstrates they do not. For example, Part 530 (Pay Rates and Systems (General)), includes: Subpart B ­ Aggregate Limitation on Pay Subpart C ­ Special Salary Rate Schedules for Recruitment and Retention. Part 531 includes: Subpart B ­ Determining Rate of Basic Pay Subpart C ­ Special Pay Adjustments for Law Enforcement Officers Subpart D ­ Within-Grade Increases

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Subpart E ­ Quality Step Increases Subpart F ­ Locality-Based Comparability Payments Subpart G ­ Continued Rates of Pay. Part 532 governs prevailing rate systems, which even plaintiffs do not argue apply to them. Part 534 governs "Pay Under Other Systems," including the clearly inapplicable: Subpart B ­ Student-Employees In Government Hospitals Subpart C ­ Basic Pay for Employees of Temporary Organizations Subpart D ­ Pay and Performance Awards Under the Senior Executive Service Subpart E ­ Pay for Senior-Level and Scientific and Professional Positions Subpart F ­ Pay for Administrative Appeals Judge Positions. Part 536, "Grade and Pay Retention," concerns General Schedule employees. As explained, Decennial employees were not General Schedule employees. Part 550 applies to a variety of administrative and pay entitlement issues. Plaintiffs fail to identify any one that addresses their claims. It includes the following subparts: Subpart A ­ Premium Pay Subpart B - Advances in Pay Subpart C ­ Allotments and Assignments from Federal Employees Subpart D - Payments During Evacuations Subpart E ­ Pay From More Than One Position Subpart F [Reserved] Subpart G ­ Severance Pay

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Subpart H - Back Pay Subpart I - Pay for Duty Involving Physical Hardship or Hazard Subpart J - Adjustment of Work Schedules for Religious Observances Subpart K - Collection by Offset from Indebted Government Employees Subpart L - Lump-Sum Payment for Accumulated and Accrued Annual Leave Subpart M - Firefighter Pay. Part 551 concerns the Fair Labor Standards Act. As this Court has explained, the FLSA does not apply to pay claims for fewer than 40 hours per week. Christofferson, 64 Fed. Cl. at 318-322. Part 551 includes: Subpart A - General Provision Subpart B - Exemptions and Exclusions Subpart C - Minimum Wage Provisions Subpart D - Hours of Work Subpart E - Overtime Pay Provisions Subpart F - Child Labor Subpart G - FLSA Claims and Compliance. Plaintiffs might have intended to rely upon the Back Pay Act, 5 U.S.C., § 5596. Its implementing regulation is within the range of regulations cited in plaintiffs' motion, and it is referred to in Proposed Complaint ¶ 22, although it is not clear whether it is alleged there for its jurisdictional effect. In any event, it is clear that the Back Pay Act is not a money-mandating statute that might afford this Court jurisdiction. Spagnola v. Stockman, 732 F.2d 908, 912 (Fed. Cir. 1984) (holding that the Act is derivative and not money-mandating for purposes of

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jurisdiction under the Tucker Act); accord Markey, 27 Fed. Cl. at 621. In fact, the pay statute that governs Decennial field employee pay is 13 U.S.C. § 23(a), which states The Secretary may establish, at rates of compensation to be fixed by him without regard to the Classification Act of 1949, as many temporary positions as may be necessary to meet the requirements of the work provided for by law.12 That statute, however, is not a money-mandating statute. It simply authorizes the Secretary to establish rates of pay. See Carroll v. United States, 67 Fed. Cl. 82, 86 (2005) (statute authorizing Treasury Secretary to "fix the rates of basic pay for positions within the police forces of the United States Mint and the Bureau of Engraving and Printing" within a specified range is "discretionary and not money-mandating"). The fact that this Court does not have jurisdiction over these claims does not leave Decennial employees without recourse for claims of unpaid compensation. In 31 U.S.C. § 3702 (a)(2 ), Congress conferred authority to settle claims for unpaid compensation upon the Office of Personnel Management. At 5 C.F.R, Part 178, subpart A, OPM set forth procedures and the burden of proof to bring such claims: The burden is upon the claimant to establish the timeliness of the claim, the liability of the United States and the claimant's right to payment. The settlement of claims is based upon the written record only, which will include the submissions by the claimant and the Agency. OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary. 5 C.F.R. § 178.105.

Pursuant to this statute, the Bureau contracted for a study of rates paid in various localities around the country and based their hourly rates on those rates. Def. Ex. 12, ¶ 2. The Bureau based the rates for Crew Leaders and Field Operations Supervisors on General Schedule ranges for similar positions. Id. - 24 -

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OPM also authorized agencies to establish their own procedures to settle such claims. Id. During the Decennial, Census had several hotlines to which employees could report any claims of nonpayment of wages. Def. Ex. 9 at 3-18. Personnel independent of the LCOs investigated the claims and if valid ensured payment. Id. This scheme is logical, because, in the end, this is a dispute about whether plaintiffs worked, not whether they were correctly paid. As for that inquiry, Census established a detailed system of employee-generated data points ­ and Congress established a system for verifying them after the fact. Apparently, plaintiffs have not availed themselves of this remedy. Accordingly, at the very least, their claims are not ripe for adjudication. B. The Proposed Claims Are Barred By The Statute Of Limitations.

Absent any specific statute of limitations, money claims against the United States are subject to a six-year statute of limitations. 28 U.S.C. § 2501; Ewer v. United States, 63 Fed. Cl. 396, 398 (2005). An FLSA pay claim accrues on the date of the applicable pay period. Cook v. United States, 855 F.2d 848, 851 (Fed. Cir.1988); see Beebe v. United States, 226 Ct. Cl. 308, 640 F.2d 1283, 1293 (1981); Halferty v. Pulse Drug Company, Inc., 821 F.2d 261, 270 (5th Cir. 1987) ("A cause of action accrues at each regular payday immediately following the work period during which the services were rendered for which the wage or overtime compensation is claimed"). A failure to satisfy 28 U.S.C. § 2501 deprives this Court of jurisdiction, as that statute is a condition upon this Court's jurisdiction. John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1354-55 (Fed. Cir.2006); accord Chaney, 75 Fed. Cl. at 211-12. Here, the statute of limitations bars the claims contained in the proposed amendment. The Decennial pay week was Sunday through Saturday. Any given week's pay was paid within 11

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days of the last day of that week (Saturday). Christofferson, 64 Fed. Cl. at 325. Thus, each of plaintiffs' "no-pay" claims accrued, at the latest, 11 days after the Saturday of the week in which they allege they were not paid. However, as set forth below, none of interested plaintiffs' claims could have accrued later than 2000, because these plaintiffs' Decennial employment ended in 2000, and plaintiffs' motion was not filed until February 13, 2007 ­ well-beyond the sixth year anniversary of any possible accru