United States District Court, District of Columbia
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
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].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.
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.
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.
instant motion, plaintiffs' counsel request that the
Court reinstate 215 individuals to this case. See
Mot. Reinst. & Ex. B; Correction Ex. A. 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.
Three Individuals Seeking Leave to Join
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). 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.
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.
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.
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.
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
125 Previously-Dismissed Individuals Seeking
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
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, ...