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Breen v. Chao

United States District Court, District of Columbia

March 21, 2019

KATHLEEN BREEN, et al., Plaintiffs,
v.
ELAINE L. CHAO, Secretary of Transportation, Department of Transportation, et al., Defendants.

          OPINION

          PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on plaintiffs' motion to reinstate all individuals who have expressed their intention to participate as plaintiffs in this case [Dkt. No. 400].[1]Plaintiffs “omnibus” motion was filed pursuant to the Court's Order [Dkt. No. 389], issued on May 3, 2018, setting out a schedule “to establish with greater certainty and finality which individuals may participate in this case as plaintiffs.” In that Order, the Court directed plaintiffs' counsel to submit the instant motion, “incorporating the prior requests to reinstate certain plaintiffs set forth in filings docketed as entries numbered 383 and 385” - requests on which the Court has not yet ruled because additional prospective plaintiffs continued to present themselves. See May 3, 2018 Order at 2 [Dkt. No. 389].

         Plaintiffs' motion is devoid of legal argument. The Court therefore looks to the plaintiffs' previous motions [Dkt. Nos. 383, 385], which were “incorporated” into the omnibus motion. Even those prior motions contain sparse legal analysis, and instead, simply assume that the Court's previous rulings should apply equally to these instant movants and lead the Court to the same conclusion. The government has not submitted a written opposition to the omnibus motion or the “incorporated” motions. Instead, as the government explained at the status conference on May 1, 2018, it opposes all of these motions for the reasons stated in prior briefing and preserves its previously-documented opposition, submitted in response to the plaintiffs' previous motions. See also Motion to Reconsider Denial of Joinder at 2 [Dkt. No. 383]; Motion to Admit Additional Dismissed Plaintiffs at 3 [Dkt. No. 385]. Having considered the plaintiffs' motions, the relevant legal authorities, and the entire record in this case, the Court will grant in part and deny in part plaintiffs' omnibus motion to reinstate all individuals who have expressed their intention to participate as plaintiffs in this case.[2]

         Plaintiffs are former flight service controllers who were all over the age of 40 when they were adversely affected by the Federal Aviation Administration's (“FAA”) reduction-in-force (“RIF”). See First Am. Compl. ¶ 1 [Dkt. No. 3]. Plaintiffs brought a class action complaint against the FAA alleging violations of the Age Discrimination in Employment Act (“ADEA”). See id. Because the legal analysis contained herein is confined to the interpretation and application of the Court's prior opinions - in which it has recounted the facts and procedural history of this case, see Breen v. Chao, 304 F.Supp.3d 9, 16-20 (D.D.C. 2018); Breen v. Chao, Civil Action No. 05-0654 (PLF), 2018 WL 1509077, at *1-3 (D.D.C. March 27, 2018) - the Court will now reference only those facts relevant to the instant motion.

         In the instant motion, plaintiffs' counsel request that the Court reinstate 215 individuals to this case. See Mot. Reinst. & Ex. B; Correction Ex. A.[3] Those 215 individuals include: the three individuals who moved the Court on April 10, 2018 to reconsider its denial of joinder or intervention [Dkt. No. 383]; the 125 previously-dismissed individuals who sought reinstatement in the plaintiffs' previous motion filed on April 25, 2018 [Dkt. No. 385]; and three individuals who voluntarily dismissed their claims. The remaining 84 movants request to join the case as “individuals who had previously sought joinder into the case but were denied joinder and had not yet been reinstated, or whose claim was dismissed without prejudice and who had not been reinstated.” See Mot. Reinst. at 2. To resolve the instant motion, the Court must consider each category of prospective plaintiffs separately.

         A. Three Individuals Seeking Leave to Join

         Plaintiffs first request that the Court allow three individuals to join this case: Norman DeShon, Richard A. Hensley, and Maurice E. Michaud. See Mot. Recon. Denial. These three individuals previously moved to join or, in the alternative, intervene in the case, see Plaintiffs' Motion for Joinder [Dkt. No. 63], and their motion was denied on January 7, 2008 by Judge Richard W. Roberts, to whom this case was originally assigned. See Breen v. Peters, 529 F.Supp.2d 24, 29 (D.D.C. 2008).[4] Fifteen individuals - movants in the same previously-denied motion - moved for reconsideration. See Plaintiffs' Motion to Reconsider Denial of Joinder or Intervention [Dkt. No. 316]. On March 27, 2018, the Court issued an Opinion and Order by which it granted those fifteen plaintiffs' motions to reconsider the Court's prior orders and allowed them to join the case. See Breen v. Chao, 2018 WL 1509077. The three individuals now before the Court had not retained plaintiffs' counsel at the time that the motion to reconsider (as to the fifteen individuals) was filed; they therefore were not admitted pursuant to the Court's March 2018 Order. See Mot. Reinst. at 2.

         Plaintiffs first moved [Dkt. No. 383] to reconsider the denial of joinder or intervention as to the three prospective plaintiffs on April 10, 2018; in the instant omnibus motion, the plaintiffs reassert that request. Plaintiffs contend that the three individuals should be permitted to join the case now under the same terms as their fifteen counterparts, arguing that “[t]he same facts and legal principles that apply to the fifteen Plaintiffs who have already been permitted to join this action apply to these Movants as well.” See Mot. Recon. Denial at 2. As explained, the government has not filed an opposition to the plaintiffs' motion, but it maintains that “such joinder is inappropriate for the reasons articulated in Defendants' opposition to Plaintiffs' motion to reconsider denial of joinder or intervention.” See id. at 2.

         In denying the prospective plaintiffs' original motion for joinder in 2008, Judge Roberts rejected their argument that they should be permitted to join the case under the doctrine of vicarious exhaustion. See Breen v. Peters, 529 F.Supp.2d at 27-28. Judge Roberts held that the doctrine of vicarious exhaustion could apply only where a party has undertaken the fullblown administrative complaint process required by the ADEA under Section 633a(b). See id. at 28; see also Breen v. Chao, 2018 WL 1509077, at *2. And, at the time, the complaint reflected that the original civil action claims were administratively exhausted solely pursuant to the ADEA's unique bypass provision. See Breen v. Chao, 2018 WL 1509077, at *2; Breen v. Peters, 529 F.Supp.2d at 28. In their motion to reconsider, the fifteen prospective plaintiffs requested that the Court consider new evidence that indicated that one of the original plaintiffs - Frank Eastman - had in fact exhausted his administrative remedies under the Section 633a(b) complaint process. See Breen v. Chao, 2018 WL 1509077, at *2. The prospective plaintiffs asserted that such evidence justified reconsideration of the Court's previous denial of their joinder and demonstrated a basis for the application of the vicarious exhaustion doctrine to the prospective plaintiffs' claims. See id. at *2-3. The Court agreed: “Because their claims are so functionally similar to Mr. Eastman's claim, the prospective plaintiffs have vicariously exhausted their administrative remedies.” See id. at *7. The Court further held that allowing the prospective plaintiffs to join the case would not be futile - that is, it would not be barred by the applicable statute of limitations - because the relation back doctrine applied. See id. at *9-10. Finding that it would be in the interests of justice - causing only minimal, if any, prejudice to the defendants and creating no undue delays - the Court allowed fifteen individuals to join the case. See id. at *11.

         The plaintiffs argue that the circumstances presented by Mr. DeShon, Mr. Hensley, and Mr. Michaud are identical to those of the fifteen plaintiffs who previously were permitted to join this action. See Mot. Recon. Denial at 2. The government does not give the Court any reason to doubt that assertion. The only difference between the three individuals now moving and the fifteen individuals who were permitted to join is the point at which the prospective plaintiffs moved the Court for reconsideration. While it would have been more efficient if all prospective plaintiffs had sought reconsideration of the Court's previous denial of their joinder through the same motion, the Court sees no intervening reason not to grant the instant motion on the same terms as its previous decision.

         The clarification that Mr. Eastman did, in fact, exhaust his administrative remedies is “good reason” for reconsideration. See Breen v. Chao, 2018 WL 1509077, at *6. The new evidence related to Mr. Eastman demonstrates that the three prospective plaintiffs (like the other fifteen) vicariously exhausted their administrative remedies. See id. at *6-8. And their claims are not time-barred by any statute of limitations because they “relate back” to the original complaint - that is, their claims arise from the same “conduct, transaction, or occurrence” as set forth in the original pleading and the government had sufficient notice of their claims. See id. at *9-10. There is also no indication that the addition of these three plaintiffs will cause any more delays or prejudice than did the addition of their already-admitted counterparts. See id. at *11. The Court recognizes that the process of finalizing the list of plaintiffs in this case has been extensive and time-consuming. In its prior Opinion, however, the Court determined that the risk of unfair prejudice and undue delay resulting from the late joinder of fifteen additional plaintiffs did not bar their addition. See id. at *11. Since that Opinion was issued in March 2018, the case has not proceeded apart from limited expert discovery related to the A-76 process. See July 17, 2018 Memorandum Opinion and Order [Dkt. No. 397]. The addition of these three plaintiffs, therefore, would not create any new prejudice or delays.

         B. 125 Previously-Dismissed Individuals Seeking Reinstatement

         Plaintiffs also request that the Court reinstate 125 previously-dismissed plaintiffs. The 125 individuals were members of the group of 667 plaintiffs who were dismissed from the case by court orders, issued in 2008 [Dkt. No. 151] and 2009 [Dkt. No. 245], for their failures to respond to defendants' discovery requests and to the Court's subsequent show cause orders. See Breen v. Chao, 304 F.Supp.3d at 14; see also July 11, 2016 Status Report at 4 & Ex. C [Dkt. No. 290]; Mot. Admit Dism. Pl. & Exs. A, B. 226 other individuals of that group of 667 dismissed plaintiffs previously moved for reconsideration. See Plaintiffs' Motion for Reconsideration of Dismissal of Plaintiffs [Dkt. No. 317]. And on March 27, 2018, the Court issued an Opinion and Order granting plaintiffs' motion for reconsideration of the Court's previous dismissal of those 226 individuals and allowing their claims to be reinstated in this case. See Breen v. Chao, 304 F.Supp.3d 9. The 125 previously-dismissed plaintiffs now before the Court had not retained plaintiffs' counsel at the time that the 226 individuals' motion for reconsideration was filed, and therefore were not admitted by the Court's March 2018 Order.

         This group of 125 previously-dismissed plaintiffs sought reinstatement by motion to admit additional dismissed plaintiffs filed on April 25, 2018 [Dkt. No. 385]; in the instant omnibus motion, the plaintiffs reassert that request. The plaintiffs argue that the 125 individuals should be reinstated for the same reasons the Court gave for reinstatement in its March 27, ...


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