Nor does Congress' subsequent failure to address abatement mean that it intended statutory claims to abate. See Cox v. Roth, 348 U.S. 207, 209 (1955) (holding that despite absence of survival provision in statute, action by Jones Act seaman survives death of defendant); Bilanow v. United States, 159 Ct. Cl. 93 (1962) (holding that suit for wrongful interference with government employment concerns a property right and does not abate upon death); see also Sinito v. United States Dep't of Justice, 176 F.3d 512 (D.C. Cir. 1999) (holding that FOIA cause of action, despite the absence of a statutory survival provision, survives plaintiff's death); Mallick v. Int'l Brd. of Elec. Workers, 814 F.2d 674 (D.C. Cir. 1987) (holding that despite absence of survivorship clause, an action under § 201 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 431(c), survives death of plaintiff). In the absence of a specific statutory provision, courts have looked to federal common law to determine whether an action created by federal statute survives the death of a party.
(quoting Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 87 L.Ed. 838 (1943))); Bowles v. Farmers Nat'l Bank of Lebanon, Ky., 147 F.2d 425, 430 (6th Cir. 1945) (stating that to determine survival of a statutory cause of action "[i]n the absence of an Act of Congress, the federal courts are entitled to apply the proper rules of federal law under their own standards"); Sullivan v. Associated Billposters Distribs., 6 F.2d 1000, 1004 (2d Cir. 1925) ("A cause of action which is given by a federal statute, if no specific provision is made by act of Congress for its survival, survives or not according to the principles of the common law."). Courts have also held that the principle that survivorship is determined as a matter of federal common law extends also to claims against the United States. See NEC Corp., 11 F.3d at 137, 139; see also Bilanow v. United States, 159 Ct.Cl. 93, 309 F.2d 267, 268 (Ct. CI. 1962) (apparently applying common law principles to conclude that action against the United States did not abate upon the plaintiff's death). For example, in United States v. NEC Corp., 11 F.3d 136 (11th Cir. 1993), the original plaintiff, Williams, had brought a qui tam action against the United States under the False Claims Act, seeking a portion of the recovery the government obtained from the defendant as a result of information he had provided.
An original requestor who goes to court to compel disclosure by the agency has a stake in the legal action which transcends that of "any person" who might seek the FOIA document. He has invested time, and in all likelihood money, in the action. Were it a cause of action sounding in property rights, see Davis v. Oregon State Univ., 591 F.2d 493 (9th Cir. 1978) (property interest in continued employment survives death of claimant); Cheramie v. Orgeron, 434 F.2d 721 (5th Cir. 1970) (action for patent infringement survives death of party); Bilanow v. United States, 309 F.2d 267 (Ct.Cl. 1962) (suit for damages for wrongful separation from government employment survives death of plaintiff); Fletcher v. Grinnell Bros., 64 F. Supp. 778 (D.C. Mich. 1946) (action to recover wages under Fair Labor Standards Act was ex contractu and survived death of plaintiff), seeking money rather than information, there would be little doubt that the cause of action survived his death and passed to his estate. Were the action seeking a precious book or return of tangible property, the same would be true. Here the action seeks information, which in many cases has equal value with money or tangible property, and there is no reason, absent statutory preclusion, why it should not similarly survive.
Because Xie's wages are property, his Labor Law claims survive. See generally Bilanow v. United States, 309 F.2d 267, 268 (Ct. Cl. 1962) ("The right to employment and to earn a living free from undue molestation is a property right affecting the estate of plaintiff. Such right does not abate upon his death.").
The claims in the instant case are not extinguished, as the causes of action - violations of the FLSA and the MWHL - survive Plaintiff's death. See Acebal v. United States, 60 Fed.Cl. 551, 557 (Fed.Cl. 2004) (holding that FLSA claims survive to the representatives of the decedent's estate); see also Bilanow v. United States, 309 F.2d 267, 268 (Ct.Cl. 1962) ("The right to employment and to earn a living free from undue molestation is a property right affecting the estate of plaintiff. Such right does not abate upon [her] death.").