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surveying cases and holding that “the Tucker Act does not apply because the Postal Service is not the United States”
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CIVIL ACTION NO. 02-1278
April 21, 2003
ORDER AND REASONS
Plaintiffs, Ronald E. Arceneaux and Joseph C. Candilora, sued their employer, the United States Postal Service ("the Postal Service"), under the Fair Labor Standards Act. 29 U.S.C. § 201 et seq. Arceneaux and Candilora allege that the Postal Service violated the Fair Labor Standards Act by knowingly and incorrectly classifying them as exempt employees and by failing to pay them overtime wages. In addition to seeking recovery of unpaid overtime wages, plaintiffs seek an equal amount in liquidated damages, 29 U.S.C. § 216 (b), plus prejudgment interest and attorney's fees. Complaint, Record Doc. No. 1. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) upon written consent of all parties. Record Doc. No. 12.
Arceneaux and Candilora filed a motion for summary judgment, supported by their own joint affidavit and four unverified exhibits. Record Doc. No. 28. Plaintiffs argue that both liability and the amount of damages are undisputed. Although the exhibits are not verified as required by Fed.R.Civ.P. 56(e), I have considered them. As discussed below, I find that plaintiffs' evidence is insufficient at this time, as a matter of law, to support summary judgment in plaintiffs' favor. Although it appears that plaintiffs' liability case is strong, the material facts arenot undisputed for summary judgment purposes and additional evidence is necessary for plaintiffs to establish the facts and bear their burden of proof. Verification of the exhibits would not change this result. Therefore, I will not order plaintiffs to verify the exhibits.
Defendant filed a timely memorandum in opposition, supported by the sworn declaration of plaintiffs' supervisor, who disputes both liability and the amount of damages. Record Doc. No. 30. In addition, defendant argues that this court lacks subject matter jurisdiction over plaintiffs' complaint because the Tucker Act provides that the United States Court of Federal Claims has exclusive jurisdiction over non-tort actions against the United States that seek more than $10,000 in damages. 28 U.S.C. § 1491(a)(1).
Plaintiffs received leave to file a reply memorandum in support of their motion. Record Doc. Nos. 31, 32. They attached to their reply memorandum several more pages of unverified, unlabeled exhibits. When a summary judgment movant submits additional evidence, the court is ordinarily required to give the opponent ten additional days to respond. Fed.R.Civ.P. 56(c). However, I will not consider these additional unverified exhibits because consideration of them, even if they were verified, would not change the outcome of this decision. Accordingly, I will not order defendant to respond to this additional evidence.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, I find that this court has subject matter jurisdiction. IT IS ORDERED that plaintiffs' motion for summary judgment is DENIED.
I. FACTUAL BACKGROUND
Both plaintiffs are long-time employees of the Postal Service in its Equal Employment Opportunity department. On August 14, 2001, the Postal Service sent a letter to each of them, advising plaintiffs that "it waspossible that [they] were incorrectly classified as `exempt' under the Fair Labor Standards Act" and that they "may be owed back pay for overtime that [they] may have worked." Plaintiffs Exh. 3 in globo, copies of letters to Arceneaux and Candilora dated August 14, 2001 (emphasis added).
Although the Postal Service disputes the admissibility of all of plaintiffs' unverified exhibits, defendant appears to admit in its memorandum that the Postal Service sent these letters to plaintiffs. Opposition Memorandum to Plaintiffs' Motion for Summary Judgment, Record Doc. No. 30, at p. 5.
Plaintiffs argue that the Postal Service has known since at least December 26, 1992 that they were misclassified as exempt employees. Plaintiffs Exh. 2, in globo, copies of a Notification of Personnel Action form for each plaintiff, effective as of December 26, 1992. Arceneaux and Candilora argue that defendant deliberately concealed this knowledge from them and that defendant is therefore equitably estopped from raising the statute of limitations as a bar to their recovery. Plaintiffs contend that the Postal Service owes them overtime wages for work performed from January 1, 1993 to mid-2001.
Arceneaux asserts that he is entitled to $262,340.07 in unpaid overtime for the years 1993 through 2001, plus an equal amount in liquidated damages and $7,500 in attorney's fees. Candilora asserts that he is entitled to $209,229.93 in unpaid overtime for the years 1993 through 2001, plus an equal amount in liquidated damages and $7,500 in attorney's fees. Plaintiffs Exh. 1, affidavit of Arceneaux and Candilora; Plaintiffs Exhs. 4 and 5.
II. ANALYSIS
A. Subject Matter Jurisdiction
Defendant argues first that this court lacks subject matter jurisdiction because the Tucker Act vests exclusive jurisdiction in the Court of Federal Claims of non-tort claims against the United States for damages in excess of $10,000. It is axiomatic that this court is one of limited jurisdiction and must always be satisfied of its own subject matter jurisdiction before proceeding. Fed.R.Civ.P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998); Free v. Abbott Labs., Inc., 164 F.3d 270, 272 (5th Cir. 1999). It is equally axiomatic that the burden is on plaintiffs to show the basis for the court's subject matter jurisdiction. Boudreau v. United States, 53 F.3d 81, 82 (5th Cir. 1995).
Sovereign immunity bars suits against the United States unless Congress has explicitly waived its immunity. United States v. Dalm, 494 U.S. 596, 609-10 (1990); Koehler v. United States, 153 F.3d 263, 265 (5th Cir. 1998). The Fair Labor Standards Act specifically allows federal employees to sue the United States for violations of the Act, El-Sheikh v. United States, 177 F.3d 1321, 1323 (Fed. Cir. 1999) (citing 29 U.S.C. § 203 (e)(2), 216(b)), and specifically includes employees of the Postal Service within its definition of "employee." 29 U.S.C. § 203 (e)(2)(B). Thus, the Fair Labor Standards Act waives sovereign immunity and gives Arceneaux and Candilora the substantive right to proceed against the Postal Service for damages "`in any Federal or State court of competent jurisdiction.'" El-Sheikh, 177 F.3d at 1323 (quoting 29 U.S.C. § 216 (b)); accord Saraco v. United States, 61 F.3d 863, 865-66 (Fed. Cir. 1995).
The Fair Labor Standards Act does not establish this court's jurisdiction. Id. at 866. The question therefore is whether this court is one of competent subject matter jurisdiction.
The Postal Service argues that the jurisdictional basis for plaintiffs' claims is created by the Tucker Act and is exclusively established in the Court of Federal Claims. The Tucker Act provides in relevant part:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.28 U.S.C. § 1491(a)(1).
Under the "Little" Tucker Act, all United States district courts have concurrent jurisdiction with the Court of Federal Claims over such actions, but only for claims of less than $10,000.
(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
. . . .
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort,. . . .Id. § 1346(a)(2).
The law of the Fifth Circuit "is clear [that] the Court of Claims has exclusive jurisdiction of a Tucker Act claim in excess of $10,000" and that, when a plaintiff requested damages in excess of $10,000 in a non-tort suit against the United States, "the district court had no jurisdiction to entertain [plaintiffs] claims." Humphries v. Various Federal USINS Employees, 164 F.3d 936, 941 (5th Cir. 1999) (quotation and citations omitted).
The Court of Federal Claims was previously known as the Court of Claims.
The Postal Service argues that this action should be transferred to the Court of Federal Claims because this court lacks subject matter jurisdiction under the Tucker Act. Defendant assumes, without citation to any law, that plaintiffs' suit against the Postal Service is a suit "against the United States" for purposes of the Tucker Act.
Plaintiffs respond that the Tucker Act does not apply to this action against the Postal Service because the Postal Service is not the same entity as the United States. My research has located no opinions rendered in lawsuits against the Postal Service under the Fair Labor Standards Act that have addressed this question. However, most courts that have addressed this question in the context of other types of non-tort, non-constitutional claims against the Postal Service have held that the district courts have jurisdiction over such claims and that the Tucker Act does not apply, regardless of the amount of the claim, because the Postal Service is not the same as the United States for purposes of Tucker Act jurisdiction.
In the Postal Reorganization Act of 1970, Congress decreed that "[t]he Postal Service shall have the following general powers: (1) to sue and be sued in its official name." 39 U.S.C. § 401. It is well settled that this provision waives the Postal Service's sovereign immunity. Licata v. United States Postal Serv., 33 F.3d 259, 262 (3d Cir. 1994) (citingLoeffler v. Frank, 486 U.S. 549, 556 (1988); Franchise Tax Bd. v. United States Postal Serv., 467 U.S. 512, 517 (1984)); accord Sheldon Jewelry Co. v. United States Postal Serv., No. EP-00-CV-288-DB, 2001 WL 681247, at *2 (W.D. Tex. Mar. 29, 2001). With one exception, irrelevant in the instant case, Section 409(a) of the Postal Reorganization Act grants jurisdiction to the district courts over all actions against the Postal Service. "[T]he United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service." 39 U.S.C. § 409 (a).
The district court for the Southern District of New York recently surveyed the case law in this area and concluded that, "[a]lthough there remains some disagreement, most courts have held that a claim brought against the USPS in its own name is not a claim against the United States and thus is not governed by the Tucker Act." Beckman v. United States Postal Serv., 79 F. Supp.2d 394, 405 n. 14 (S.D.N.Y. 2000) (citingLicata, 33 F.3d at 263; Continental Cablevision v. United States Postal Serv., 945 F.2d 1434, 1440 (8th Cir. 1991); Jackson v. United States Postal Serv., 799 F.2d 1018, 1022 (5th Cir. 1986); White v. Bloomberg, 501 F.2d 1379, 1384 n. 6 (4th Cir. 1974); but see Peoples Gas, Light Coke Co. v. United States Postal Serv., 658 F.2d 1182, 1189 (7th Cir. 1981) (Section 409(a) waives sovereign immunity but provides no independent basis for jurisdiction in a suit for injunctive relief concerning a Postal Service procurement decision)).
Most of the lawsuits in which this question has arisen have been breach of contract actions. The Third Circuit found in a breach of contract action by a postal worker against his employer that "it is well settled that a claim brought against the Postal Service in its own name is not a claim against the United States and thus is not governed by the Tucker Act." Licata, 33 F.3d at 263 (citations omitted); accord Continental Cablevision, 945 F.2d at 1440 (in dicta); Coconut Grove Entertainment, Inc. v. United States, 46 Fed. Cl. 249, 256 (Fed.Cl. 2000); see also Sheldon Jewelry Co., 2001 WL 681247, at *4 n. 2 (having found that jurisdiction lies under Section 409(a), the court need not determine whether the Little Tucker Act also provides jurisdiction for plaintiffs breach of contract claim for damages less than $10,000; in dicta, the court notes that "it probably does not" because the Postal Service is not the United States for purposes of the Little Tucker Act); but see Westwood Promotions, Inc. v. United States Postal Serv., 718 F. Supp. 690, 695 (N.D. Ill. 1989) (although Section 409(a) grants jurisdiction over all claims against the Postal Service, there must be some other law to create a cause of action to form a basis for jurisdiction; under the Tucker Act, district court has no jurisdiction to consider plaintiffs unjust enrichment/breach of contract claim for more than $10,000; the court does not consider whether the Postal Service is a separate entity from the United States).
Thus, the majority of courts which have considered the question have held that actions against the Postal Service for breach of contract arenot subject to the Tucker Act because they are not actions against the United States and that Section 409(a) confers subject matter jurisdiction over such actions on the district courts.
My research has located only one type of claim, for damages in excess of $10,000 for inverse condemnation, to which any court has applied the Tucker Act in an action against the Postal Service and held that the district courts do not have jurisdiction. See Benderson Dev. Co. v. United States Postal Serv., 998 F.2d 959, 963 (Fed. Cir. 1993); Spodek v. United States Postal Serv., 35 F. Supp.2d 160, 163 (D. Mass. 1999). The plaintiffs in Benderson and Spodek claimed that in each case the Postal Service had violated an agreement concerning real property. The jurisdictional issue in both cases depended on whether the court characterized the alleged violation as a breach of contract or as a "taking" of the property by the Postal Service for which the plaintiffs were seeking just compensation. The nature of the plaintiffs' claim would determine subject matter jurisdiction.
Broadly speaking, the United States may take property pursuant to its power of eminent domain in one of two ways: it can enter into physical possession of property without authority of a court order; or it can institute condemnation proceedings under various Acts of Congress providing authority for such takings. Under the first method — physical seizure — no condemnation proceedings are instituted, and the property owner is provided a remedy under the Tucker Act . . . to recover just compensation.Benderson, 998 F.2d at 962 (quoting United States v. Dow, 357 U.S. 17, 21 (1958)). The Postal Service has eminent domain power.
"The prevailing view is that the coexistence of the Tucker Act and the [Postal Reorganization Act] provides jurisdiction in the district courts over contract actions in which the Postal Service is a party regardless of the amount involved." Id. (citations omitted) (emphasis in original). Thus, the Federal Circuit in Benderson and the district court in Spodek held that if the claim was in contract, the Tucker Act did not apply and the district courts had jurisdiction. However, if the claim sought damages for inverse condemnation, both courts held that the Court of Federal Claims had exclusive jurisdiction under the Tucker Act. Benderson Dev. Co., 998 F.2d at 963; Spodek, 35 F. Supp.2d at 163.
The basis for the jurisdictional distinction made by the Federal Circuit in Benderson and followed by the district court in Spodek is unclear. The Tucker Act and the Little Tucker Act themselves do not carve out any exception for either breach of contract or constitutional claims. Both types of claims are specifically included within the coverage of the two statutes: "any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491 (a)(1), 1346(a)(2).
The distinction may arise from Section 401(9), which grants to the Postal Service the power "to exercise, in the name of the United States, the right of eminent domain for the furtherance of its official purposes." 39 U.S.C. § 401 (9). Atleast one court has held that, although
the Postal Service has been granted the authority to exercise the right of eminent domain, it does so only "in the name of the United States." Thus, while the Postal Service may take the initial steps toward condemnation, it is the United States which is ultimately condemning the property. For these reasons the United States is largely the real party defendant in this action.Grasso v. United States, 438 F. Supp. 1231, 1235 (D. Conn. 1977) (quoting 39 U.S.C. § 401 (9)). In Grasso, plaintiffs had named both the United States and the Postal Service as defendants on their claims of taking without just compensation and promissory estoppel, which the court characterized as a type of contract claim. The district court held that "the extent of this court's jurisdiction over the United States is not precisely identical to that over the Postal Service." Id. The court found that it had jurisdiction over both claims against the Postal Service, but did not have jurisdiction over the same claims against the United States because the Tucker Act placed exclusive jurisdiction over them in the Court of Claims. Rather than split the claims and the defendants between two courts, the district court declared the United States an indispensable party and transferred both claims against both defendants to the Court of Claims, finding that the Court of Claims had exclusive jurisdiction over the claims against the United States and concurrent jurisdiction over the claims against the Postal Service. Id. at 1235-36;cf. Pearlstine v. United States, 469 F. Supp. 1044, 1046 (E.D. Pa. 1979) (because lease is the property of the Postal Service, the United States is not an indispensable party and has no real interest in contract dispute; Tucker Act does not apply and district court has jurisdiction under Section 409(a)).
To summarize, my research has located no cases brought against the Postal Service under the Fair Labor Standards Act in which subject matter jurisdiction under the Tucker Act was in question. The majority of courts that have addressed whether the Tucker Act applies to divest the district courts of jurisdiction for contract claims have held that the Tucker Act does not apply because the Postal Service is not the United States for purposes of Tucker Act jurisdiction. Inverse condemnation claims are the only type of claim against the Postal Service that has been found to be subject to the Tucker Act's grant of exclusive jurisdiction to the Court of Federal Claims.
The instant suit does not involve inverse condemnation, but seeks recovery of damages under the Fair Labor Standards Act. Because the courts are nearly uniform in finding that the Tucker Act does not apply to claims against the Postal Service, except in inverse condemnation cases, I find that the Tucker Act does not apply because the Postal Service is not the United States and that this court has subject matter jurisdiction over plaintiffs' damages claims under 39 U.S.C. § 409 (a).
B. Plaintiffs' Motion for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex, 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome. of the action under governing law. Anderson, 477 U.S. at 248; Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). An issue is "genuine" if the evidence is sufficient for a rational trier of fact to return a verdict for the nonmoving party. Id.
The court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712-13 (5th Cir. 1994). "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment. . . ." Id. at 713.
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
"Generally, a plaintiff suing under the [Fair Labor Standards Act] carries the burden of proving all elements of his or her claim." Samson v. Apollo Resources, Inc., 242 F.3d 629, 636 (5th Cir. 2001). "To prove that an employer has violated the [Fair Labor Standards Act], an employee must show that: (1) she actually worked overtime; (2) the amount and extent of overtime was shown by justifiable and reasonable inference; and (3) the defendant had knowledge, actual or constructive, of her work."Peck v. NGM Ins. Co., No. 94-90-B, 1995 WL 515628, at *5 (D.N.H. June 21, 1995) (citing Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir. 1986)); accord Grochowski v. Phoenix Const., 318 F.3d 80, 87-88 (2d Cir. 2003) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)); United States Dep't of Labor v. Cole Enters., Inc., 62 F.3d 775, 779 (6th Cir. 1995) (citing Anderson, 328 U.S. at 687); American Fed. of State, County Mun. Employees v. Louisiana ex rel. Dept. of Health Hosps., No. 90-4389, 2001 WL 29999, at *11 (E.D. La. Jan. 9, 2001) (Livaudais, J.) (citing Anderson, 328 U.S. at 687; Davis, 792 F.2d at 1276). Because plaintiffs bear the burden of proof at trial, they "must establish beyond peradventure all of the essential elements of the claim . . . to warrant judgment in [their] favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). Arceneaux and Candilora have not carried this burden at this time.
Plaintiffs' joint affidavit contains many conclusory statements that are not supported by any competent summary judgment evidence. Defendant has submitted a declaration from plaintiffs' supervisor that disputes many of plaintiffs' factual contentions. While the letter of August 14, 2001 from the Postal Service to plaintiffs is strong evidence, it does not establish without dispute that defendant is liable to plaintiffs.
Thus, plaintiffs' motion for summary judgment must be denied at this time because material facts are in dispute including, but not limited to, the following: plaintiffs' hourly rate of pay from May 1, 1999 through September 7, 2001; whether plaintiffs were classified as non-exempt employees in December 1992 or at any time before September 8, 2001; when the Postal Service knew that plaintiffs had been misclassified as exempt; whether and for what period of time, if any, the Postal Service concealed its knowledge of plaintiffs' non-exempt status; the number of counselings and investigations performed by each plaintiff; the amount of time each plaintiff spent on duties not directly related to counselings and investigations; the amount of time it ordinarily takes an EEO Counselor/Investigator to perform a counseling and an investigation in a typical case; the number of hours each plaintiff worked from 1999 to 2000; whether and when plaintiffs worked overtime; whether the Postal Service acted in good faith or willfully violated the Fair Labor Standards Act; and the amount of damages, if any, to which each plaintiff is entitled.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant's objection to this court's subject matter jurisdiction is OVERRULED. IT IS FURTHER ORDERED that plaintiffs' motion for summary judgment is DENIED.