Adegbite v. United States

In the United States Court of Federal Claims

No. 20-1183 C

Filed: October 29, 2021

________________________________________

)

ADE ADEGBITE, et al., )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

________________________________________ )

Molly Anne Elkin, McGillivary Steele Elkin LLP, Washington, D.C., for Plaintiffs. Sarah M.

Block, of counsel.

Brendan David Jordan, United States Department of Justice, Civil Division, Washington, D.C.,

with whom were Brian M. Boynton, Acting Assistant Attorney General, Martin F. Hockey, Jr.,

Acting Director, and Reginald T. Blades, Jr., Assistant Director, of counsel, for Defendant.

OPINION AND ORDER

MEYERS, Judge.

In this collective action, correctional officers allege that the Government has required

them to work more than forty hours per week without paying them overtime. They contend that

they must perform certain pre- and post-shift activities that are central to their jobs, but the

Government does not pay them for this overtime work. The gravamen of the Government’s

motion to dismiss is that Plaintiffs fail to state a claim upon which relief may be granted. In the

alternative, the Government seeks a more definite statement of Plaintiffs’ claims. But the

Government’s motion seeks to hold Plaintiffs to a pleading standard not required by law or this

Court’s precedent. Therefore, the Government’s motion is granted-in-part and denied-in-part.

I. Factual Background 1

Plaintiffs are current and former correctional workers employed by the United States at

the Federal Correctional Institution Sheridan or the adjacent Federal Detention Center in

Sheridan, Oregon (collectively, the “Institution”). ECF No. 1 ¶¶ 1, 4. The Institution contains

over 1,000 inmates charged with or convicted of various federal crimes, including violent and

1The facts presented are from the Complaint and presumed to be true for purposes of this

motion.

drug-related offenses. Id. ¶ 8. Serving as correctional officers, 2 Plaintiffs allege that their

“primary job duty is to maintain the safety and security of the Institution.” Id. ¶ 9. Plaintiffs

execute their job duty at assigned posts throughout the Institution, most of which are staffed for

24 or 16 hours per day while others are staffed for only 8 hours per day. Id. ¶ 10. Regardless of

which post, Plaintiffs each work a single 8-hour shift per day, with three total shifts at the 24-

hour posts and two total shifts at the 16-hour posts. Id. ¶ 11.

In addition to the work at their posts, Plaintiffs engage in other required activities before

and after their shifts. For example, since the outbreak of the COVID-19 pandemic in March

2020, Plaintiffs undergo a health screening involving a temperature check and symptom

questionnaire upon first arriving at the Institution’s grounds before entering the parking lot. Id. ¶

20. Plaintiffs then clear a staff screening involving walking through a metal detector and placing

their duty belts and other required equipment through an x-ray machine. Id. ¶¶ 19-20; ECF No.

8 at 4-5. After this screening, Plaintiffs collect and don their duty belts and other necessary

equipment. ECF No. 1 ¶ 19.

Plaintiffs specifically assigned to a 16-hour-post next retrieve more equipment or

paperwork from one of the Institution’s control centers. Id. ¶ 21. Then, Plaintiffs walk to their

posts through two sally ports and through the housing units. Id. ¶ 22. While walking through the

housing units, Plaintiffs must respond to emergencies that arise, including fights between

inmates. Id. ¶ 27. If they fail to do so, Plaintiffs may face disciplinary actions, including

termination. Id. Upon arriving at their posts, Plaintiffs inspect, account for, and exchange

equipment with the post’s outgoing officer. Id. ¶ 24. Plaintiffs also exchange information with

the outgoing officer concerning any significant security events that occurred during the prior

shift. Id. After their shifts, Plaintiffs again exchange equipment and security-related information

with the oncoming officer, and then walk back and return equipment to either of the Institution’s

control centers. Id. ¶¶ 26, 27. Plaintiffs claim to have engaged in these activities for at least 15-

30 minutes per day before and after their scheduled shifts. Id. ¶ 13.

On September 11, 2020, Plaintiffs commenced the present action, alleging that the

Government violated their rights under the Fair Labor Standards Act of 1938 (“FLSA”), 29

U.S.C. § 201 et seq. Specifically, Plaintiffs allege that the Government failed to compensate

them with overtime pay as required under the FLSA for the above pre- and post-shift activities

they performed beyond their regularly scheduled 8 hours per day and 40 hours per week of work

performed at either a 16- or 24-hour post since September 11, 2017. E.g., id. ¶¶ 12, 28, 33-37;

ECF No. 8 at 9, 16, 20. Plaintiffs thus seek monetary relief under the FLSA and the Back Pay

Act (“BPA”), 5 U.S.C. § 5596, as well as a declaratory judgment that the Government violated

the FLSA and of an accounting of all compensation owed to Plaintiffs pursuant to the

Declaratory Judgment Act (“DJA”), 28 U.S.C. §§ 2201, 2202. ECF No. 1 Prayer for Relief.

In their Complaint, Plaintiffs allege that these pre- and post-shift activities connect to

their “primary job duty” of “maintain[ing] the safety and security of the Institution.” Id. ¶ 9. In

general, the Complaint states that Plaintiffs “are charged with performing this job duty every

2Plaintiffs include both full-time correctional officers as well as other correctional workers, such

as food services employees, unit counselors, and correctional services officers, who were

“augmented” to perform correctional officer tasks. See ECF No. 1 ¶¶ 28-29.

2

moment that they are within the Institution from the moment they begin screening prior to their

shifts until they exit the Institution after their shifts end.” Id. They do so “by, among other

things, maintaining constant vigilance to ensure that nothing out of the ordinary is occurring,

immediately addressing any issues that they see no matter the location and time of day that it

occurs, including before their paid shifts begin and after they end.” Id. Regarding specific

activities, the Plaintiffs allege that, when undergoing the health screening, Plaintiffs “are

performing their primary duty of safety and security by assuring that the highly contagious novel

coronavirus does not enter the Institution.” Id. ¶ 20. They also allege that, in clearing the staff

screening, Plaintiffs “perform their primary duty of safety and security and assist in assuring no

contraband enters the Institution.” Id. ¶ 19. Further, in walking to their duty posts, Plaintiffs

allege they “perform their primary duty of safety and security . . . because they, at all times,

remain vigilant, alert, and ready to respond to emergencies.” Id. ¶ 21. “For example,” Plaintiffs

allege they “observe and correct inmate behavior, respond to inmate questions, check for security

breaches in the perimeter fence and elsewhere in the Institution, check for contraband, run to

locations where body alarms sound, and respond to other emergencies as they arise.” Id. ¶ 23.

Plaintiffs also allege that while walking back from their duty posts after their shifts, they must

“remain[] vigilant, alert, and ready to respond to emergencies . . . observing and correcting

inmate behavior, looking for contraband, [and] responding to body alarms and other

emergencies . . . .” Id. ¶ 26. Lastly, they allege that, by exchanging security information with

the outgoing correctional officer, “the oncoming correctional officer has all the important

information they need to maintain security of the inmates, staff, and post during their shift.” Id.

¶ 24.

II. Legal Standard

“A motion to dismiss . . . for failure to state a claim upon which relief can be granted is

appropriate when the facts asserted by the plaintiff do not entitle him to a legal remedy.” United

Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006) (quoting Boyle v. United

States, 200 F.3d 1369, 1372 (Fed. Cir. 2000)). As the Supreme Court explained, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). And to be “plausible on its face,” it “does not need detailed factual

allegations.” Twombly, 550 U.S. at 555; see also Cary v. United States, 552 F.3d 1373, 1376

(Fed. Cir. 2009) (Rule 8 “does not require the plaintiff to set out in detail the facts upon which

the claim is based, but enough facts to state a claim to relief that is plausible on its face.”). In

other words, the Complaint must contain enough detail “to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. “Conclusory allegations of law and unwarranted

inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317,

1322 (Fed. Cir. 1998) (citations omitted). Nevertheless, the Court “must assume all well-pled

factual allegations are true and indulge in all reasonable inferences in favor of the nonmovant.”

United Pac. Ins. Co., 464 F.3d at 1327-28 (quoting Anaheim Gardens v. United States, 444 F.3d

1309, 1314–15 (Fed. Cir. 2006)).

III. Discussion

In its Motion to Dismiss, the Government primarily argues that Plaintiffs’ Complaint fails

to state a claim upon which relief can be granted under the FLSA and the BPA. ECF No. 7 at 7,

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15-16. Alternatively, the Government requests that the Court order Plaintiffs to amend the

Complaint to provide a more definite statement. Id. at 16.

A. This Court lacks jurisdiction under the Declaratory Judgment Act and 28

U.S.C. § 1331.

Although the Government does not style its motion as challenging the Court’s

jurisdiction under RCFC 12(b)(1) in any respect, the Government does move to dismiss the

Complaint for lack of subject matter jurisdiction insofar as it seeks relief under the DJA. See

ECF No. 7 at 16 (“Plaintiffs’ request for relief under the Declaratory Judgment Act, 28 U.S.

Code §§ 2201-02, must also fail because this Court does not have jurisdiction to grant relief

under the Declaratory Judgment Act.”). Thus, the Court must determine whether it has

jurisdiction over Plaintiffs’ claims. See RCFC 12(h)(3).

Because it is long settled that this Court lacks jurisdiction under the DJA, the Court

grants the Government’s motion insofar as it challenges jurisdiction over DJA claims. E.g.,

United States v. King, 395 U.S. 1, 5 (1969) (“In the absence of an express grant of jurisdiction

from Congress, we decline to assume that the Court of [Federal] Claims has been given the

authority to issue declaratory judgments.”); Ghaffari v. United States, 125 Fed. Cl. 665, 667

(2016) (holding “long-standing precedent establishes this court lacks jurisdiction to act under”

the DJA). The only relief Plaintiffs seek under the DJA is “a complete and accurate accounting

of all the compensation to which the plaintiffs are entitled.” ECF No. 1 Prayer for Relief ¶ (b);

see ECF No. 15 at 70:16-71:13. The Court dismisses the Complaint insofar as it seeks this

declaration.

The Government also asserts that Plaintiffs improperly cite 28 U.S.C. § 1331 as

providing this Court with jurisdiction. ECF No. 7 at 16. The Government is correct that 28

U.S.C. § 1331 3 grants jurisdiction to District Courts rather than this Court. E.g., Ali v. United

States, No. 19-586C, 2019 WL 3412313, at *4 (Fed. Cl. July 29, 2019) (“The presence of a

federal question or diversity of citizenship between parties provides a jurisdictional basis for

federal district courts, not for this court.”). This is so because § 1331 provides that “[t]he district

courts shall have original jurisdiction . . . .” (emphasis added). And when Congress grants

jurisdiction to the district courts, that grant does not provide jurisdiction to this Court because

“[t]he Court of Federal Claims is not a district court of the United States . . . .” Ledford v. United

3 Plaintiffs also cite the “Little” Tucker Act, 28 U.S.C. § 1346, for jurisdiction. ECF No. 1 ¶ 2.

In relevant part, the Little Tucker Act provides concurrent jurisdiction to the District Courts for

certain monetary claims this Court has jurisdiction over against the United States, but limits the

District Court’s jurisdiction to claims “not exceeding $10,000 in amount.” 28 U.S.C. §

1346(a)(2). Given that the “Big” Tucker Act, 28 U.S.C. § 1491, grants this Court jurisdiction

over these same monetary claims against the United States without regard to the amount in

controversy, the Little Tucker Act is better understood as a jurisdictional grant to the District

Courts rather than this Court. See Evans v. United States, 694 F.3d 1377, 1379 n.5 (Fed. Cir.

2012) (“The ‘Little Tucker Act’ authorizes the same types of suits to be brought against the

Government in the Federal district courts as those authorized in the Court of Federal Claims

under the ‘Big’ Tucker Act, so long as the damages sought do not exceed $10,000.”). Thus, the

Little Tucker Act is not necessary for Plaintiffs’ claims.

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States, 297 F.3d 1378, 1382 (Fed. Cir. 2002); see also Embrey v. United States, No. 19-740C,

2020 WL 7312184, at *5 (Fed. Cl. Dec. 11, 2020) (holding Section 1331 “does not apply to our

court, however, and so does not provide the necessary jurisdiction to proceed”) (citations

omitted). While the Government is correct and the Court grants its motion insofar as it

challenges jurisdiction under 28 U.S.C. § 1331, that makes no difference to the case because it is

unchallenged that other statutes provide jurisdiction over all of Plaintiffs’ claims (other than for

declaratory relief). In other words, there is no impact from the Court granting this part of the

Government’s motion.

B. The Complaint States a Claim for Relief under the FLSA.

The Government argues that the Complaint fails to state a claim for relief under the

FLSA for three reasons. First, the Government contends that the Complaint contains insufficient

facts to adequately allege that each or any of the 107 Plaintiffs performed compensable work

under the FLSA. ECF No. 7 at 9. Second, the Government asserts that the Complaint contains

inadequate facts to plausibly allege that Plaintiffs’ alleged work activities are compensable

pursuant to the FLSA. Id. at 10. Third, the Government argues that the Complaint contains

insufficient factual details regarding the timing and duration of the alleged pre- and post-shift

activities. Id. at 14. The Court will address each argument in turn.

1. The FLSA and Portal-to-Portal Act.

When applicable, the FLSA prohibits the employment of any person to work beyond a

forty-hour workweek, or eight-hour workday, unless that person receives overtime pay of one

and one-half times his or her regular rate of pay for the overtime hours worked. 29 U.S.C. §

207(a)(1); 5 C.F.R. § 551.501(a). Employers who violate the statute are liable to covered

employees for their unpaid overtime compensation, and “[a]n action to recover the liability . . .

may be maintained . . . by any one or more employees for and in behalf of himself or themselves

and other employees similarly situated.” 29 U.S.C. § 216(b).

Although undefined in the statute, the Supreme Court has broadly interpreted “work”

under the FLSA to mean “physical or mental exertion (whether burdensome or not) controlled or

required by the employer and pursued necessarily and primarily for the benefit of the employer

and his business.” Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 31 (2014) (quoting

Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944)). The

Supreme Court has indicated that exertion is unnecessary for an activity to count as work under

the FLSA, as “an employer, if he chooses, may hire a man to do nothing, or to do nothing but

wait for something to happen.” Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).

“Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for

threats to the safety of the employer's property may be treated by the parties as a benefit to the

employer.” Id. Similarly, the Supreme Court defined “the statutory workweek” under the FLSA

to “include[] all time during which an employee is necessarily required to be on the employer’s

premises, on duty or at a prescribed workplace.” Anderson v. Mt. Clemens Pottery Co., 328 U.S.

680, 690–691 (1946).

The Supreme Court’s broad interpretations “provoked a flood of litigation” and

“Congress responded swiftly.” Integrity Staffing, 574 U.S. at 31-32. The Portal-to-Portal Act of

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1947, 29 U.S.C. § 251 et seq., limits an employer’s liability under the FLSA for failing to pay

overtime compensation for the following activities:

(1) walking, riding, or traveling to and from the actual place of

performance of the principal activity or activities which such

employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said

principal activity or activities,

which occur either prior to the time on any particular workday at

which such employee commences, or subsequent to the time on any

particular workday at which he ceases, such principal activity or

activities.

29 U.S.C. § 254(a).

After the Portal-to-Portal Act’s passage, the Supreme Court interpreted the term

“principal activity or activities” to include “all activities which are an ‘integral and indispensable

part of the principal activities.’” IBP, Inc. v. Alvarez, 546 U.S. 21, 29-30 (2005) (quoting Steiner

v. Mitchell, 350 U.S. 247, 252-53 (1956)). “An activity is . . . integral and indispensable to the

principal activities that an employee is employed to perform if it is an intrinsic element of those

activities and one with which the employee cannot dispense if he is to perform his principal

activities.” Integrity Staffing, 574 U.S. at 33.

In addition, as implied by the statute, the Department of Labor explained that the Portal-

to-Portal Act did not alter “the ‘continuous workday rule,’ under which compensable time

comprises ‘the period between the commencement and completion on the same workday of an

employee’s principal activity or activities . . . [,] whether or not the employee engages in work

throughout all of that period.’” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 226 (2014) (quoting

29 CFR § 790.6(b)); see also IBP, 546 U.S. at 29 (discussing § 790.6(b)’s adoption of the

continuous workday rule).

Even if an activity is otherwise compensable under the FLSA, however, the de minimis

doctrine may apply. Anderson, 328 U.S. at 692. “The de minimis doctrine limits FLSA liability

for overtime activities that consume negligible amounts of time.” Bull v. United States, 68 Fed.

Cl. 212, 225 (2005). As the Supreme Court explained:

When the matter in issue concerns only a few seconds or minutes of

work beyond the scheduled working hours, such trifles may be

disregarded. Split-second absurdities are not justified by the

actualities of working conditions or by the policy of the Fair Labor

Standards Act. It is only when an employee is required to give up a

substantial measure of his time and effort that compensable working

time is involved.

Anderson, 328 U.S. at 692. To determine whether the work performed is de minimis a trial court

examines: “(1) the practical administrative difficulty of recording the additional time; (2) the

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aggregate amount of compensable time; and (3) the regularity of the additional work.” Bobo v.

United States, 136 F.3d 1465, 1468 (Fed. Cir. 1998) (quoting Lindow v. United States, 738 F.2d

1057, 1063 (9th Cir. 1984)). Federal regulations “limit[] the application of the de minimis

doctrine to periods of 10 minutes or less per day.” Bull, 68 Fed. Cl. at 226 (citing 5 C.F.R. §

551.412(a)(1)), clarified by 68 Fed. Cl. 276 (2005), aff'd, 479 F.3d 1365 (Fed. Cir. 2007).

Indeed, “[d]ecisions of this court construing the FLSA have developed a rule of thumb that [10]

minutes of preliminary or postliminary work that would otherwise be compensable because it is

closely related to principal activities will nonetheless be treated as non-compensable if it totals

less than [10] minutes per day.” Id. (alterations in original) (quoting Riggs v. United States, 21

Cl. Ct. 664, 682 (1990)).

2. The Complaint Adequately Alleges that All Plaintiffs Performed

Compensable Work Under the FLSA.

The Government first argues that Plaintiffs’ Complaint fails to state a claim for relief

under the FLSA because the Complaint contains insufficient facts to adequately allege that each

or any of the 107 Plaintiffs performed compensable work under the FLSA. ECF No. 7 at 9.

According to the Government, “each plaintiff must plead a short and plain statement of the

elements of his or her claim.” Id. at 7 (quoting Bautista v. Los Angeles County, 216 F.3d 837,

840 (9th Cir. 2000)). Specifically, the Government maintains that “each plaintiff must allege

with sufficient particularity facts regarding the nature of each plaintiff’s employment, such as

‘whether [one] was salaried or employed at an hourly wage, whether and when [one] was

required to work overtime, . . . the details of [any] employment agreement,’ and ‘the dates on

which [one] was employed.’” Id. at 10 (some alterations in original) (quoting Kraemer v. Elmira

Auto Paint Supplies, Inc., 903 F. Supp. 315, 317 (N.D.N.Y. 1995); Maya v. Master Rest.

Developer, LLC, No. 09-23408, 2010 WL 11505851 (S.D. Fla. Feb. 9, 2010), report and

recommendation adopted, No. 09-23408, 2010 WL 11505852 (S.D. Fla. Mar. 15, 2010)). Here,

in contrast, the Government asserts that “[t]he only allegations in the complaint that relate to

individual plaintiffs are the caption on the first five pages of the Complaint and an attachment

that lists their names and addresses.” Id. at 9 (citing ECF No. 1 at 1-5; ECF No. 1-1). “Other

than these rote lists,” the Government contends, “the allegations in the complaint are generalized

to all plaintiffs.” Id.

The Government emphasizes that “[p]leading in such a generalized manner is insufficient

in this case when it is clear that not every generalized allegation applies to each plaintiff.” Id.

For example, the Government observes that all Plaintiffs do not exchange equipment and

information with other correctional workers at the start and end of their shifts, as some shifts are

either a duty post’s first or last shift for the day. Id. The Government also highlights that every

Plaintiff has not had to undergo the health screenings because some former officers presumably

separated from the Institution before March 2020. Id. As a final example, the Government notes

that some Plaintiffs’ walk to and from their duty posts are de minimis given the likely close

proximity of certain duty posts to the Institution’s entrance. Id. Therefore, the Government

maintains, “[b]ecause plaintiffs failed to state these facts regarding each individual plaintiff or

any specific plaintiff with sufficient particularity, their claims must fail.” Id. at 10.

The Court disagrees. None of the cases the Government cites support the notion that a

multi-plaintiff complaint must specify the minute factual details underlying each plaintiff’s

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claim. In its motion to dismiss the Government relies mainly on Bautista, in which the Ninth

Circuit reversed the district court’s dismissal with prejudice of a multi-plaintiff employment

discrimination complaint. See 216 F.3d at 839-42. In doing so, the majority stated that “each

plaintiff must plead a short and plain statement of the elements of his or her claim.” Id. at 840.

The Government takes this statement as holding that a complaint must allege the facts supporting

each plaintiff’s individual claims in this case. ECF No. 7 at 9. But Bautista is readily

distinguishable from an FLSA claim like the one pleaded in this case. In Bautista, 51 plaintiffs

that had worked for Family Restaurants sued R.A. Music (and others) when they took over the

operations of Family Restaurants and did not hire the plaintiffs. 216 F.3d at 840. Their claims

were that R.A. Music did not hire them “based upon their race, age and disability though they

were qualified for the positions they held with Family Restaurants and had performed their jobs

satisfactorily.” Id. Such claims necessarily require individualized pleadings. The allegations

here, however, are quite different. Plaintiffs allege, collectively, that the Government requires

them to perform certain work beyond their eight-hour workdays that is uniform for each of them,

and they are not paid for it in violation of the FLSA. ECF 1 ¶¶ 6-29, 31-38; ECF No. 1; ECF

No. 8 at 9, 16, 20. This removes this action from Bautista’s sweep.

As the Eastern District of California (which is, of course, bound to follow Bautista)

recognized, the quoted language from Bautista ultimately seeks to promote “efficiency and

fairness; ‘unless cases are pled clearly and precisely, issues are not joined, discovery is not

controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and society loses

confidence in the court’s ability to administer justice.’” Rodriguez v. SGLC, Inc., No. 2:08-

01971, 2010 WL 2943128, at *3 (E.D. Cal. July 23, 2010) (quoting Bautista, 216 F.3d at 841).

And Rodriquez distinguished Bautista because in Bautista:

Plaintiffs sought to plead their discrimination claims collectively,

without specifying the acts that gave rise to the dispute. Plaintiffs

to that action had been hired and fired at different times and for

different reasons, but this information was not provided in the

complaint. In that case, a more specific pleading was necessary to

serve the intent of the Federal Rules to “secure the just, speedy, and

inexpensive determination of every action and proceeding.”

Fed.R.Civ.P. 1.

Rodriguez, 2010 WL 2943128, at *4 (citations omitted). But in a case like this, “efficiency and

fairness would not be served by demanding a more specific pleading” because “[a] complaint

that alleged separate violations on behalf of each of the [107] Plaintiffs would be dense,

overlong, and unwieldy and would not facilitate a clear presentation.” Id. (internal quotations

omitted). That is particularly true here because Plaintiffs worked at different posts on different

days, meaning they would apparently need to plead their entire work history to satisfy the

Government. ECF No. 15 at 57:22-58:5 (explaining that Plaintiffs work different posts on

different days). It is hard to imagine a less unwieldy and overlong pleading. Plaintiffs

adequately plead that the Government’s policies required them to work without compensation in

a uniform manner. While each Plaintiff will need to prove the specific overtime hours they

worked without compensation to win their case, they do not need to plead each of those hours in

their Complaint.

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Similarly, Kraemer and Maya do not stand for the proposition that a multi-plaintiff

complaint must specify the factual allegations underlying each plaintiff’s claim. In both cases,

the court dismissed a single, pro se plaintiff’s complaint with leave to amend it. Kraemer, 903 F.

Supp. at 316; Maya, 2010 WL 11505851, at *1. Any instruction in those cases as to a

complaint’s content, therefore, does not apply to a multi-plaintiff complaint such as Plaintiffs’.

Indeed, the Government itself invokes the argument that a case with only one plaintiff lacks

relevance to a case with multiple plaintiffs. See ECF No. 10 at 14 (arguing that Wilson v.

District of Columbia, 269 F.R.D. 8 (D.D.C. 2010) is distinct from Bautista and this case because,

“unlike this case and Bautista, Wilson concerned only a single plaintiff.”).

In the end, “whether a complaint states a plausible claim for relief will . . . be a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 679. Here, Plaintiffs have sufficiently alleged that they worked more

than 40 hours per work week without overtime pay due to Government policies and have

provided an estimate of the number of overtime hours worked. That is sufficient at this stage of

the litigation. See Dejesus v. HF Management Services, LLC, 726 F.3d 85, 88 (2d Cir. 2013)

(“[I]n order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40

hours of work in a given workweek as well as some uncompensated time in excess of the 40

hours.”) (quoting Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106, 114 (2d Cir.

2013)); see also Harris v. Davita Healthcare Partners, Inc. et al., Nos. 17-2741, 17-2744, 2018

WL 3093322, at *4 (D. Colo. June 22, 2018) (finding in two single-plaintiff cases, that plaintiffs

sufficiently stated an FLSA claim to survive a 12(b)(6) when their complaints alleged they

“worked ‘on average 1.5 hours of overtime’ per week”). In short, Plaintiffs allege that they have

suffered the same harm from a common Government policy. The specifics as to each Plaintiff’s

injury is a matter for summary judgment or trial.

3. The Complaint Contains Sufficient Facts Plausibly Alleging that most of

the Alleged Work Activities are Compensable Under the FLSA.

The Government next argues the Complaint fails to state a claim for relief under the

FLSA because it lacks sufficient facts to plausibly allege that Plaintiffs’ alleged work activities

are compensable under the FLSA. ECF No. 7 at 10. To be compensable, the work must be

integral to the Plaintiffs’ principal activities. See IBP, 546 U.S. at 21, 29-30; Integrity Staffing,

574 U.S. at 33. Of course, before determining whether a given task is integral to Plaintiffs’

principal activities, the Court must first determine what those principal activities are. Aguilar v.

Mgmt. & Training Corp., 948 F.3d 1270, 1276 (10th Cir. 2020) (citation omitted).

According to the Government, “[t]he principal activities of the correctional workers

appear to be guarding the prison by observing convicts, preventing their escape, and enforcing

prison rules.” ECF No. 10 at 3 (citing ECF No. 1 ¶¶ 9, 23). The Plaintiffs allege, however, that

their principal activity “is to maintain the safety and security of the Institution.” ECF No. 1 ¶ 9;

ECF No. 8 at 12-14. And the Government argues that this “nebulous” description is insufficient

to establish Plaintiffs’ principal activities because it would allow anything to count as integral to

these activities and compensable under the FLSA. ECF No. 10 at 1, 3-4. While the Plaintiffs’

description of their principal activities may be overbroad, it is not fatal to their claims because in

elucidating the “security” Plaintiffs provide, they allege they “observe and correct inmate

behavior, respond to inmate questions, check for security breaches in the perimeter fence and

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elsewhere in the Institution, check for contraband, run to locations where body alarms sound, and

respond to other emergencies.” ECF No. 1 ¶ 23. Providing “security” in this manner is a

sufficient description. See Aguilar, 948 F.3d at 1277 (“[T]he officers’ principal activities include

maintaining ‘the custody and discipline of inmates,’ ‘supervising detainees,’ ‘searching for

contraband[,] and providing security.’”) (second alteration in original).

The Government argues that the alleged work activities are not integral and indispensable

to these principal activities and thus are non-compensable for purposes of the FLSA. ECF No.

10 at 4-5. The Court addresses them in turn.

a) Health screenings.

Plaintiffs argue that passing through the health screening that is necessitated by the

COVID-19 pandemic is part of their primary activity of “maintain[ing] the of the safety and

security of the Institution.” ECF No. 1 ¶¶ 9, 20. The Government disagrees and compares the

health screenings to the post-workday antitheft security screenings that were held as not integral

and indispensable for warehouse employees in Integrity Staffing, 574 U.S. at 35. ECF No. 7 at

10-12. The Government also argues that people in many segments of society must undergo

health screenings to prevent the spread of coronavirus, and thus these screenings are not

particularly intrinsic to Plaintiffs as correctional officers. ECF No. 7 at 11 (citing Whalen v.

United States, 93 Fed. Cl. 579, 600-01 (2010)), as “finding that security screening procedure that

applied to everyone who entered a military base was not a work activity when employees

underwent the screening”). Finally, the Government argues that “assuring that the highly

contagious novel coronavirus does not enter into the Institution was the principal activity of

those administering the health screenings, not those undergoing the health screenings.” ECF No.

10 at 5 (internal quotation marks omitted).

While the Court does not find the Government’s first two arguments compelling at this

stage of the litigation (they may be more compelling after discovery), its third is correct. Given

the types of “security” that Plaintiffs provide, see ECF No. 1 ¶ 23, ensuring the inmates’ health is

not one of their responsibilities. Indeed, nowhere in the Complaint is any allegation that

Plaintiffs provide health care to inmates in their custody. The responsibility to care for the health

thus falls on others in the Institution, presumably the same ones that were conducting the health

screening to the Plaintiffs. In other words, preventing the coronavirus from getting into and/or

spreading within the Institution is not integral to Plaintiffs’ principal activities. Therefore, the

Complaint fails to allege that the time spent passing through the Covid-19 screening is integral to

the Plaintiffs’ principal activities as correctional officers and, therefore, it is non-compensable.

b) Security screenings.

After passing through the coronavirus health screening, the Plaintiffs pass through

security screenings, which include passing through metal detectors. ECF No. 1 ¶ 19. Here too

the Government argues that security screening is integral to the activities of those performing the

screening, not the Plaintiffs. According to the Government, “the activity of preventing

contraband from entering the prison is the job of those administering the screening, not those

undergoing the screening.” ECF No. 10 at 7. Assuming that the security screening operators’

principal activities are as the Government asserts, the Government does not explain why the

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screenings cannot also be integral to Plaintiffs’ principal activities. Here Plaintiffs do contend

that their principal activities include controlling contraband. ECF No. 1 ¶ 23.

Other courts have found activities like those alleged by the Plaintiffs to be compensable

under the FLSA based on similar descriptions of principal activities. In Aguilar, the Tenth

Circuit determined that detention officers’ undergoing a security screening upon arriving at the

prison was integral and indispensable to their principal activities of “maintaining the custody and

discipline of inmates, supervising detainees, searching for contraband[,] and providing security.”

948 F.3d at 1277 (alteration in original) (citation and internal quotation marks omitted). The

Circuit reasoned that the security screening “prevent[s] weapons and other contraband from

entering the prison[, which] . . . is necessarily tied to the officers’ work of providing prison

security and searching for contraband.” Id. at 1278 (citation and internal quotation marks

omitted); see also Roberts v. State of Arizona, 483 P.3d 212, 220-21 (2021) (finding security

screening integral and indispensable to correctional officers’ principal activity of maintaining

prison safety and security). As explained above, that is what Plaintiffs here allege as well.

To be sure, there are courts that have gone the other way. One the Government relies on

is Henderson v. Cuyahoga County, No. 20-1351, 2020 WL 5706415 (N.D. Ohio Sept. 24, 2020).

ECF No. 10 at 7. There, the District Court granted a Rule 12(b)(6) motion to dismiss a detention

officer’s FLSA claim regarding the unpaid pre-shift activity of undergoing a security screening.

Henderson, 2020 WL 5706415, at *3. Specifically, the officer’s complaint alleged that his duties

required him to “search for contraband and provide security,” and that the security screening

serves “the purposes of safety, and to prevent . . . inadvertently or intentionally bringing

contraband into the prison.” Id. at *1 (citation omitted). Henderson further alleged that

“[k]eeping weapons and other contraband out of the prison is necessarily tied to the . . . work of

providing security and searching for contraband[,]” and, “[t]hus, undergoing security screenings

is integral and indispensable to the . . . principal activities.” Id. (citation omitted). The District

Court held that undergoing the security screening is not compensable work under the FLSA

because “[w]hile the pre-shift security screening may relate to part of the activity Plaintiff

performs during his shifts, i.e., searching for contraband, the Plaintiff could still perform his job

effectively if the pre-shift screenings were eliminated.” Id. at *3. Here, the Government asserts

that “Plaintiffs’ complaint . . . suffers the same defect as the Henderson complaint.” ECF No. 10

at 7.

Henderson is not persuasive because it is unclear how that Court concluded that “Plaintiff

could still perform his job effectively if the pre-shift screenings were eliminated” based solely on

the pleadings as required under RCFC 12(b)(6). There is certainly nothing in the pleadings

before this Court that would allow any such holding here. Again, this is a factual matter that is

not amenable to resolution at this stage of the litigation. Therefore, the Court finds Aguilar more

persuasive on this point and agrees with it at this stage of the litigation. If discovery shows that

Plaintiffs could perform their principal duties effectively without the security screenings, the

Government may well prevail on summary judgment or at trial on that basis. But it cannot

prevail now.

c) Donning and doffing of equipment.

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The Government argues the collecting and donning of duty belts and other required

equipment is comparable to donning and doffing activities that courts have found non-

compensable under the FLSA. Thus, the Government contends that getting and returning of this

equipment is not compensable because it is akin to the donning and doffing of protective gear

that was determined to be non-integral to nuclear power plant workers in Gorman v. Consol.

Edison Corp., 488 F.3d 586, 594-95 (2d Cir. 2007). ECF No. 10 at 8-9. Similarly, the

Government equates the collecting and donning of duty belts and other required equipment to the

placement of safety glasses, ear plugs, a hard hat, and safety shoes that was found to be non-

compensable for truck drivers in Reich v. IBP, Inc., 38 F.3d 1123, 1126 (10th Cir. 1994). ECF

No. 10 at 8-9.

Whatever the merits of those holdings, the Court finds that this is a factual question for

resolution following discovery. The Complaint adequately alleges that the equipment here—

e.g., keys, chits, etc.—is integral to the Plaintiffs’ work. As the Circuit found in Aguilar,

returning equipment, is “integral and indispensable to the officers’ principal activities of

maintaining custody and discipline of the inmates and providing security.” 948 F.3d at 1283. As

the Circuit explained, “the officers use keys to guard the inmates and to lock and unlock doors to

ensure security; use radios to communicate with officers at their posts and to give them

directions and instructions throughout the day; and use [h]and restraints and pepper spray . . . as

both a deterrent and if necessary, to control unruly inmates.” Id. at 1280 (alteration in original)

(citation and internal quotation marks omitted); see also Hootselle v. Missouri Dep’t of Corr.,

624 S.W.3d 123, 141 (Mo. 2021) (en banc) (holding that picking up and returning equipment

such as keys and radios is integral and indispensable to corrections officers’ principal activities

of supervising, guarding, escorting, and disciplining offenders). It is difficult to imagine how

correctional officers could do their work without their duty belts and equipment that they carry,

but that is a question for another day.

d) Walking to and from assigned posts.

The Government challenges the time walking to and from duty posts before and after

shifts while remaining “vigilant, alert, and ready to respond to emergencies” to maintaining

“walking, riding, or traveling to and from the actual place of performance of the principal

activity or activities which such employee is employed to perform,” which is not compensable

for FLSA purposes under the Portal-to-Portal Act, 29 U.S.C. § 254(a). ECF No. 7 at 12-13

(quoting ECF No. 1 ¶¶ 21, 23). The Government argues that this time is non-compensable under

Whalen, 93 Fed. Cl. at 600-01. See ECF No. 15 at 23:12-23, 24:8-17, 25:11-17. In Whalen, a

group of air traffic controllers argued that they should have been paid for passing through

security screenings and travelling from the security screening at the entrance to Edwards Air

Force Base to their duty stations. 93 Fed. Cl. at 597. Judge Lettow rejected this argument with a

compelling analysis of whether these activities were integral to the air traffic controllers’

principal activities. But Whalen sheds little light on whether the time prison guards spend

walking through the prison while required to perform activities that appear almost

indistinguishable from the activities they perform at their duty stations is compensable. See ECF

No. 1 ¶¶ 21-23. According to the Complaint, while walking to and from their assigned duty post

Plaintiffs must “remain[] vigilant, alert, and ready to respond to emergencies while within the

secured confines of the Institution, observing and correcting inmate behavior, looking for

contraband, responding to body alarms and other emergencies . . . .” Id. ¶ 26. Whether air traffic

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controllers perform their principal activities while travelling from a security checkpoint to the

control tower (clearly, they do not) sheds no light on whether Plaintiffs’ can prevail here. The

same is true of the other cases the Government relies upon that do not arise from correctional

officers. See Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1343 (11th Cir. 2007)

(traveling through job site on employer vehicles); Gorman, 488 F.3d at 594-95 (ingress and

egress through security procedures)).

The Government also challenges the notion that simply remaining vigilant is sufficient to

make Plaintiffs’ walking through the Institution compensable. Here, the Government compares

this time to time the Court found non-compensable in Akpeneye v. United States, 138 Fed. Cl.

512 (2018). In Akpeneye, the Court found that although Pentagon security officers had to remain

vigilant, ready to respond to emergencies, and check their radios during their mid-day breaks,

that time was not compensable. But Akpeneye does not compel dismissal here for several

reasons. While remaining vigilant while guarding the Pentagon is clearly of vital importance, it

is not the same thing as remaining vigilant while walking through a prison where the people

Plaintiffs are guarding may attack them. More importantly, Akpeneye granted summary

judgment on this point based on facts developed in discovery. Id. at 543. 4

Similarly, the Government challenges the Plaintiffs’ claims under Babcock v. Butler

County, 806 F.3d 153 (3d Cir. 2015), which affirmed the dismissal of an FLSA complaint

seeking compensation for a 15-minute unpaid portion of a one-hour lunch break. In Babcock,

the Circuit affirmed under the “predominant benefit test,” which determines “whether the officer

is primarily engaged in work-related duties during” uncompensated periods. Id. at 156 (citation

omitted). But this test requires the Court to evaluate “the totality of the circumstances to

determine, on a case-by-case basis, to whom the benefit . . . inures.” Id. at 157 (emphasis

added). And in Babcock, the Circuit explicitly noted that even though the District Court

dismissed the complaint under Rule 12(b)(6), “there has been . . . ‘sufficient development of the

facts to enable a capable application of the appropriate predominant benefit standard . . . .’” Id.

at 158. That is not the case here.

Lastly, the Government asserts that Plaintiffs’ alleged work activity of walking from the

staff screening to their posts was not compensable because, in their Response brief, “[P]laintiffs

claim that they do not ‘perform their primary job duty’ until ‘after clearing the second sally

port.’” ECF No. 10 at 9 (quoting ECF No. 8 at 6) 5. Accordingly, the Government argues that

“[P]laintiffs do not allege any facts showing that the first part of the walk . . . is any different

than a continuation of their commute to their duty stations, which is not compensable.” Id.

(citations omitted). The Government misquotes Plaintiffs’ Response in advancing this argument.

The full sentence to which the Government refers in Plaintiffs’ Response reads, “[a]fter clearing

the second sally port at the FCI, Plaintiffs continue to perform their primary job duty while

walking to their posts.” ECF No. 8 at 6 (emphasis added). Contrary to the Government’s

4 The Court also notes that Akpeneye denied summary judgment on the remaining claims,

including donning and doffing, because of disputed material facts. 138 Fed. Cl. at 542-43. This

further supports denial of the Government’s motion here.

5In its Reply, the Government mistakenly cites pages 9-10 of Plaintiffs’ Response as the source

of Plaintiffs’ quoted language. It appears on page 6 of Plaintiffs’ Response.

13

mischaracterization, Plaintiffs neither say nor imply that they only perform their primary job

duty after clearing the second sally port and not beforehand on the walk from the staff screening.

But, of course, other courts have found the time prison guards spend walking through a

prison to be compensable. The Missouri Supreme Court in Hootselle found as integral and

indispensable to the corrections officers’ principal activities the requirement while walking to

and from their posts of being “on duty and expected to respond to incidents involving offenders;

required to act as prison guards whenever they are inside the prisons; and required to remain

vigilant and respond to incidents as they arise.” 624 S.W.3d at 141 (citation and internal

quotation marks omitted). The reason, the court explained, is that these activities are what the

officers are employed for—supervising, guarding, escorting, and disciplining offenders—

regardless of whether they perform these activities at their posts or away from them. Id. at 142.

e) Exchange of information at shift change.

Lastly, the Government asserts that the exchange of information and equipment between

outgoing and incoming correctional officers was no more than a voluntary courtesy and cannot

be accurately calculated by a practicable system. In support of this argument the Government

cites the court’s finding in Battery Workers’ Union Local 113, United Elec., Radio & Mach.

Workers of Am., C. I. O. v. Elec. Storage Battery Co., 78 F. Supp. 947 (E.D. Pa. 1948), “that an

early relief practice practiced by fixed post guards was not compensable work time because it

was voluntarily practiced by the guards and no practicable system could be adopted that would

accurately reflect exact time of guards on post.” ECF No. 7 at 13-14. The relevance of this is

puzzling. Plaintiffs do not allege that they are engaged in an “early relief practice,” they allege

that they “perform a vital (but unpaid) information exchange with the outgoing correctional

officer about any significant security events that occurred the previous shift so that the oncoming

correctional officer has all the important information they need to maintain security of the

inmates, staff, and post during their shift.” ECF No. 1 ¶ 24.

The Government also equates the outgoing officer’s exchange to the post-shift briefing

that was determined to not be integral and indispensable to the outgoing correctional officers in

Bustillos v. Board of Cnty. Comm’rs of Hidalgo Cnty., No. 13-0971, 2015 WL 8014565, at *16

(D.N.M. Oct. 20, 2015), aff’d, 697 F. App’x 597 (10th Cir. 2017). ECF No. 10 at 11. But

Bustillos does not support dismissal here because Bustillos holds that pre-shift briefings are

necessary for the oncoming officer to perform his or her job, while the post-shift briefing is not.

In other words, the briefing is compensable for the oncoming officer but not the outgoing one.

Id. at *16-17. But the Court cannot determine that all briefings are non-compensable today.

f) The continuous workday rule.

The Government may be vindicated through discovery and be able to show that some, if

not all, of the alleged work activities are non-compensable under the FLSA. But those issues are

not for the Court to determine at this stage. This is particularly true here because the continuous

workday rule supports that the Complaint sufficiently states that Plaintiffs’ alleged work

activities are compensable under the FLSA. Specifically, because the Complaint states a claim

for relief regarding Plaintiffs’ first and last alleged work activities of the day, undergoing the

security screening and returning equipment to either of the Institution’s control centers, all the

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intermediary activities would likely be compensable under the continuous workday rule. Indeed,

the court in Aguilar found that all the detention officers’ alleged work activities were

compensable under the FLSA pursuant to the continuous workday rule after finding that the

officers’ first alleged activity, undergoing the security screening, and the last alleged activity,

returning keys and equipment, were integral and indispensable to their principal activity. 948

F.3d at 1279-80, 1283, 1289.

The Government argues that the continuous workday rule does not apply to Plaintiffs’

alleged work activities, asserting that the Plaintiffs’ activities are each de minimis. ECF No. 10

at 13. The Government cites Singh v. City of New York, 524 F.3d 361, 371 n.8 (2d Cir. 2008),

noting that “a de minimis principal activity does not trigger the continuous workday rule.” ECF

No. 10 at 13. Thus, the Government concludes that, “to the extent the individual actions as

alleged in plaintiffs’ complaint were not preliminary, they were each de minimis and therefore

cannot serve as a trigger for the ‘continuous workday rule.’” Id. The Court does not agree. As

an initial observation, other courts disagree with Singh and hold that a de minimis principal

activity can trigger the continuous workday rule. Perez v. Mountaire Farms, Inc., 650 F.3d 350,

377-78 (4th Cir. 2011); Butler v. DirectSat USA, 55 F. Supp. 3d 793, 816-17 (D. Md. 2014)

(holding that a de minimis principal activity can trigger the continuous workday rule). More

importantly, as the Fourth Circuit explained:

In applying the de minimis rule, we consider the aggregate amount

of time for which the employees are otherwise legally entitled to

compensation. See DOL Wage & Adv. Mem. No.2006–2 n.1 (May

31, 2006). We do not, as [defendant] suggests, evaluate each task or

group of tasks separately to determine if the time period is de

minimis. Adopting [defendant’s] approach would undermine the

purpose of the FLSA . . . .

Perez, 650 F.3d at 373. Whether Plaintiffs can prevail and show that any of the work is

compensable is not the question for today. The issue before the Court is whether the Plaintiffs

have adequately pleaded that they are required to work at least ten minutes of compensable work

beyond their eight-hour shifts without pay. They have done so.

4. The Complaint Contains Sufficient Factual Details Regarding the Timing

and Duration of the Alleged Work Activities.

The Government relatedly argues that Plaintiffs fail to state a claim because they do not

allege how much time each pre- and post-shift activity takes. ECF No. 7 at 14 (citing ECF No. 1

¶ 13). Yet, the Government concedes that a proper FLSA claim only requires an aggregate of

over ten minutes of uncompensated work. ECF No. 10 at 11-12. But the Government contends

that because the Complaint does not specify how much time each activity takes each day,

Plaintiffs cannot establish how much time they spent performing the alleged uncompensated

work. The Court cannot agree.

Plaintiffs’ alleging that they spent between fifteen-to-thirty minutes per day in total

before and after their scheduled shifts performing required, uncompensated work is not

implausible. That is, there is nothing implausible about the allegation that the activities

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addressed above that are potentially compensable took between 15-30 minutes to complete.

Given that the Court found the health screenings to be non-compensable, the Court does consider

whether that holding renders the allegation that the remaining activities took between 15-30

minutes implausible.

While it is true that Plaintiffs do not specify how much time each activity takes, even

without the health screenings, it remains plausible that the remaining activities take between 15-

30 minutes per day. In fact, the Complaint alleges as much. The Complaint alleges that “[a]t all

times material herein, defendant has suffered or permitted plaintiffs to work at least 15-30

minutes each shift, and sometimes more, before and after their scheduled shift times without

compensating plaintiffs for this work time.” ECF No. 1 ¶ 13. And the Complaint seeks relief

back to September 11, 2017 (three years prior to Plaintiffs’ filing the Complaint). Id. ¶ 33. But

the coronavirus screenings did not start until March 2020, after the Covid-19 pandemic had

begun to spread. Id. ¶ 20. Thus, the Complaint alleges that Plaintiffs worked between 15-30

extra minutes each shift before the health screenings as well, which is plausible.

In the end, the Plaintiffs have adequately pleaded their claims and the Government’s

motion to dismiss their FLSA claims fails.

C. Plaintiffs’ Complaint States a Claim for Relief Under the BPA.

The Government also argues that the Complaint fails to state a claim for relief under the

BPA. ECF No. 7 at 15. The BPA, in pertinent part, provides:

An employee of an agency who . . . is found . . . to have been

affected by an unjustified or unwarranted personnel action which

has resulted in the withdrawal or reduction of all or part of the pay,

allowances, or differentials of the employee—

(A) is entitled, on correction of the personnel action, to receive for

the period for which the personnel action was in effect—

(i) an amount equal to all or any part of the pay, allowances, or

differentials, as applicable which the employee normally would

have earned or received during the period if the personnel action had

not occurred . . . .

5 U.S.C. § 5596(b). In arguing that the Complaint fails to state a claim for relief under the BPA,

the Government relies solely on its contention that Plaintiffs’ claims for relief under the FLSA

fail. ECF No. 7 at 15-16. This is because the BPA “is not itself a jurisdictional statute. It is

merely derivative in application, depending on a prior finding of appropriate jurisdiction in the

Claims Court.” Refaei v. United States, 129 Fed. Cl. 1, 23 (2016) (quoting Mitchell v. United

States, 930 F.2d 893, 897 n.3 (Fed. Cir. 1991)) (additional citations omitted). Therefore,

“‘[u]nless some other provision of law commands payment of money to the employee for the

‘unjustified or unwarranted personnel action,’ the Back Pay Act is inapplicable.’” Id. (quoting

Spagnola v. Stockman, 732 F.2d 908, 912 (Fed. Cir. 1984)) (additional citations omitted).

16

The Government’s argument here is that because the FLSA purportedly is inapplicable to

this case, the Plaintiffs’ BPA claims must fail as well. ECF No. 7 at 15-16. But as explained

above, the Plaintiffs adequately pleaded their FLSA claims, which survive the Government’s

motion. With the FLSA providing jurisdiction, there is no basis to dismiss Plaintiffs’ BPA

claims.

D. The Complaint Does Not Require a More Definite Statement.

As an alternative to dismissal, the Government moves the Court to order Plaintiffs to

provide a more definite statement of their claims under RCFC 12(e). ECF No. 7 at 17.

According to the Government, “[b]ecause of the insufficiently plead facts regarding each of the

107 plaintiffs, the nature of the pre and post-shift activities, and the timing of these activities,

defendant cannot prepare an adequate response to the complaint.” Id. “Without such relief,” the

Government adds, it “would be required to answer a factually vague and ambiguous complaint

and could therefore be prejudiced.” Id.

RCFC 12(e) provides that “[a] party may move for a more definite statement of a

pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the

party cannot reasonably prepare a response.” As discussed above, however, a complaint need

only provide “a short and plain statement of the claim showing that the pleader is entitled to

relief.” RCFC 8. Thus, a motion under RCFC 12(e) “must point out the defects complained of

and the details desired.” RCFC 12(e). Such a motion under RCFC 12(e) is “designed to remedy

unintelligible pleadings, not to correct for lack of detail.” Adams v. United States, 151 Fed. Cl.

522, 529 (2020) (quoting Goodeagle v. United States, 111 Fed. Cl. 716, 722 (2013)). The

remedy for lack of detail in pleadings is discovery. Whalen v. United States, 80 Fed. Cl. 685,

693–94 (2008). Further, a more definite statement is unwarranted where the Government

possesses the relevant records. Id.; Fed. Air Marshals v. United States, 74 Fed. Cl. 484, 488

(2006) (denying RCFC 12(e) motion because Government has control over the relevant records

and could easily access those documents during discovery).

Here, the Government’s request for a more definite statement from the Complaint fails

because the Complaint is not “so vague or ambiguous that the [Government] cannot reasonably

prepare a response.” RCFC 12(e). The only issue the Government cites with the Complaint is

its general lack of “facts regarding each of the 107 plaintiffs, the nature of the pre and post-shift

activities, and the timing of these activities.” ECF No. 7 at 17. But these deficiencies can be

readily cured by discovery. Furthermore, the Complaint is hardly unintelligible. It provides

Plaintiffs’ names, their places of employment, their employment date range, their assigned posts,

and their alleged work activities. See generally ECF No. 1. The Government’s extensive and

detailed briefing on its motion also confirms the Complaint’s intelligibility. See generally ECF

Nos. 7 and 10. And as Plaintiffs correctly note, the Government has in its custody the

information it seeks. ECF No. 8 at 20.

The Government does not dispute this, but instead argues that the Complaint “makes

defendant’s searches through its records unnecessarily onerous and burdensome” and that “it is

substantially more difficult, and in some cases may be impossible, to find certain information

without cues from factual allegations.” ECF No. 10 at 15. The Government adds that “[t]he

difficulty of this task is compounded by the fact that there are more than 100 named plaintiffs on

17

the complaint.” Id. This is unconvincing because the remedy to these difficulties is not

requiring Plaintiffs to amend their Complaint, but discovery. The Plaintiffs have alleged that

they are entitled to their claimed overtime on dates they worked at duty posts that are staffed 16

or 24 hours per day. Of course, they work different posts on different days. But Plaintiffs have

identified which duty stations are 16-hour posts and which are 24-hour posts. ECF No. 1 ¶¶ 14-

15. The Government can produce the time records for each Plaintiff, which does not strike the

Court as a Herculean task and propound discovery to Plaintiffs to have them sort through the

data and provide the Government the additional information it seeks based on the records

produced.

Accordingly, the Court denies the Government’s alternative request for a more definite

statement from Plaintiffs’ Complaint.

IV. Conclusion

As should be clear by now, the Government’s motion may succeed at summary judgment

when facts are established through discovery. But that does not mean it can prevail now as a

motion to dismiss for failure to state a claim. Because the Court holds that the Plaintiffs have

adequately pleaded their claims:

1. The Government’s Motion to Dismiss, ECF No. 7, is hereby GRANTED-IN-PART as

to the Complaint’s requested relief pursuant to the Declaratory Judgment Act and

jurisdiction under 28 U.S.C. § 1331, but DENIED in all other respects; and

2. Plaintiffs’ Motions for Leave to File Notice of Supplemental Authority, ECF Nos. 9 and

16, are GRANTED.

IT IS SO ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge

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