Osborn Law, P.C.

POSTED JANUARY 13, 2012

            As all of you know, we have been in trial on this case since January 6, 2012. The trial has been conducted as a bench trial by Judge Selna in the federal court in Santa Ana, California.

            Unfortunately, Judge Selna ruled yesterday that Level 13 and below Postal Inspectors are "administrative" employees and thus not entitled to overtime under the Fair Labor Standards Act (FLSA). In short, Judge Selna concluded that Postal Inspectors are "white-collar detectives" whose primary duty is the performance of  "office or non-manual work" related to the general business operations of the Postal Service. He also concluded that Postal Inspectors "exercise discretion and independent judgment on matters of significance" to the Postal Service (these are magic words from the FLSA regulations). In addition, Judge Selna ruled on Wednesday that Postal Inspectors have not proven that they are comparable to any other group of criminal investigators who receive FLSA overtime, so therefore Postal Inspectors are not entitled to FLSA overtime.   We expect to have a written copy of either the judge's order or the transcript from his ruling shortly and will post it here.

            Obviously, we plan to appeal the Court's ruling to the Ninth Circuit Court of Appeal. As you all know, this process will take probably a year or longer. The first step will be the filing of a Notice of Appeal, which we will do after a final judgment has been entered. This should all be accomplished within the next two to three weeks. We will post the Notice of Appeal once we file it.

            Thank you all for your support as we have gone through this litigation. We will keep you apprised of the appeal process as briefs are filed and oral argument is scheduled.

POSTED JANUARY 5, 2012

             Trial beings tomorrow, January 6, 2012.

POSTED OCTOBER 27, 2011

             A pretrial conference was held on October 24, 2011. At the hearing, Judge Selna granted the Postal Service's motion to strike the jury, meaning the case will be tried in front of Judge Selna only, with no jury. We anticipated this ruling but are nonetheless disappointed. The most immediate consequence of the judge's decision is that the trial has been continued until January 3, 2012 in order to allow the parties to comply with all of the Court's requirements for judge (or "bench") trials.

POSTED OCTOBER 6, 2011

               We have three pieces of news to report.

            First, the settlement conference scheduled for September 22, 2011 did not take place. The Magistrate Judge concluded that it would be a waste of time given the gap between the Postal Service's offer and the Postal Inspectors' demand. A copy of the Order is attached.

                                                                                                            September 20, 2011 Order

            Second, and more significantly, Judge Selna granted the Postal Service's motion to dismiss the Level 14 Inspectors from the lawsuit. This ruling is very disappointing for a number of reasons, but primarily because Judge Selna concluded that Level 14 Inspectors were never part of the case based on the language in the First Amended Complaint (FAC). According to Judge Selna, despite the broad definition of who we sought to represent ("all current and former postal inspectors employed by the Postal Service between March 31, 2001 and the date of the resolution of the case who sign a consent to joint action," paragraph 3 of FAC), other language in the document excluded Level 14 Inspectors.

             We believe the judge's opinion is an extremely narrow, improper reading of the FAC and that his statement, that his reading is "the only plausible reading," is wrong. We intend to appeal the judge's decision at the appropriate time and we are in the process of determining when we can do that. We also are contemplating filing a new Complaint on behalf of Level 14 Postal Inspectors. While we have not yet decided whether we will do that, please let us know if you would be interested in serving as a named or lead plaintiff (meaning your name appears on the caption of the lawsuit and you have responsibilities to the other Inspectors who join the suit).

             We have attached both the FAC and Judge Selna's opinion.

                                                                                                          First Amended Complaint

                                                                                                          September 26, 2011 Order

            Finally, this past Monday, October 3, the Court heard oral arguments on the parties' motions for summary judgment. We argued that because Inspectors are expressly covered by the Fair Labor Standards Act, our motion should be granted. The Postal Service contends that although the FLSA may apply, Postal Inspectors are exempt as "administrative" employees. Last Friday, Judge Selna issued a 25-page "tentative" ruling, suggesting how he might decide the motions. Monday's hearing lasted nearly 2 1/2 hours and we expect the judge's final ruling to look quite a bit different than his tentative ruling, for both sides. When that decision is issued, we will post it here. Judge Selna did state that the parties should continue preparing for trial, a sign that he is not going to give either party everything it asked for. If summary judgment is not granted in full to either party, the case will proceed to trial. The Court informed us that the first day of trial will be either November 3 or November 8.

POSTED MARCH 16, 2011

Let me begin by apologizing for the delay between posts.  We will try to update you more regularly.

We have two significant developments to report.  First, as you may recall, on August 5, 2010, Judge Selna denied the Postal Service's motion for summary judgment on the issue of  "comparability." The Postal Service had argued, essentially, that because GS-1811s do not receive FLSA overtime, Postal Inspectors should not receive FLSA overtime.  The details of that ruling are set forth in our August 5, 2010 posting below.  The Postal Service, of course, was not satisfied with that ruling and moved for "reconsideration."  Following a hearing on November 22, 2010, Judge Selna denied the Postal Service's motion.  We had simultaneously asked the Court to grant summary judgment in our favor on the issue of comparability but our application also was denied, a ruling we anticipated.

November 22, 2010 Order

The second development to report is that Judge Selna has set a trial date of NOVEMBER 1, 2011, just over seven months from now.  Judge Selna issued a formal Order For Jury Trial and approved a detailed pre-trial schedule.  For those of you that are interested, you will see that the Court has set a number of interim deadlines and that we have a lot of work to do to prepare for trial.

Detailed Schedule

The trial will take place in federal court in Santa Ana, California and is anticipated to last seven days.

POSTED SEPTEMBER 27, 2010

On September 23, 2010, an amendment was added to H.R. 5368, the "United States Postal Service Postal Inspectors and Special Agents Equity Act".  The amendment at section (c) reads:

(c) EFFECTIVE DATE --The amendments made by this section shall be effective as of September 30, 1996, except that nothing in this Act shall be considered to require the United States Postal Service to provide any additional compensation to any postal employee (within the meaning of section 5545a(1) of title 5, United States Code, as amended by this Act) with respect to any service performed by such employee prior to the date of the enactment of this Act.

This amendment effectively relieves the Postal Service of liability for 14 years of Fair Labor Standards Act violations and its failure to fulfill the requirements of the Law Enforcement Availability Pay Act.  Requiring retroactivity as a condition of support for the bill is a deceitful and malicious act that we strenuously oppose. 

Postal Inspectors can still prevent this bill from becoming law.  Current and retired Inspectors that joined our lawsuit must take immediate action.  We ask that each class member contact their senator and local congressional representative by telephone or email to express their opposition to the Postal Service’s backdoor attempt to nullify our lawsuit.  Each class member can find the contact information for their representatives on the following website: 

www.govtrack.us/congress/findyourreps.xpd

We also recommend that class members advise fellow Inspectors of the Postal Service’s attempt to avoid its legal obligations stemming from its failure to abide by the requirements set forth in the FLSA and LEAP Act.  Because some Inspectors do not follow the postings on this website, it would be beneficial for all involved to spread the word and mobilize as many Inspectors as possible.  Without your participation, the Postal Service may succeed in getting this bill passed with a retroactive clause and avoid paying its Inspectors damages for years of willful disregard of the federal labor laws.  It is imperative that the Postal Inspectors act now.  If the bill is passed as written, the rights of all Inspectors will be permanently impacted.

POSTED SEPTEMBER 23, 2010

URGENT MESSAGE

In our last couple of postings, we have expressed to you our opposition to the Postal Services’ demand that H.R. 5368 be modified to include a provision making the law retroactive.  As we have stated, we are not opposed to H.R. 5368 generally, but only as it might be applied retroactively.  If applied prospectively, H.R. 5368 would classify Postal Inspectors as being exempt from FLSA overtime pay.  This would have the effect of putting an end date on our accumulation of damages, which is acceptable to us.  If applied retroactively however, the exemption would go back to 1996.  For those of you who are in our lawsuit, this likely would mean that your claim would be wiped out. 

To complicate matters, we just learned this week that FLEOA is supporting retroactivity. FLEOA is concerned that if it does not support retroactive application of H.R. 5368, the Postal Service will reduce pay and benefits if we prevail in our FLSA lawsuit.   This fear stems from the Postal Service’s unfounded and unlawful threat, first expressed in former Chief Lazaroff’s letter dated June 13, 2008, to cut Inspectors’ pay if the agency is forced to pay FLSA overtime by virtue of our lawsuit.

Of course, if the bill is passed and applied prospectively only, the Postal Service will not have to pay FLSA overtime in the future and thus there would be no need to carry out its threat to cut pay.  The Postal Service, however, is not satisfied with this outcome.  Instead, the Postal Service seeks retroactive application of the statute for the sole purpose of scuttling our seven year-old lawsuit.  While FLEOA does not really want retroactive application of the statute, it is willing to agree to it if that is the only way to get the bill passed.  For its part, the Postal Service continues to threaten FLEOA that a reduction in pay and benefits will occur if we prevail in our FLSA lawsuit.

We believe that FLEOA is not acting in the best interest of its members because it is operating under the false impression that the Postal Service can reduce pay and benefits if our lawsuit is successful.  It cannot.  Postal Inspectors are entitled, by virtue of Title 39 U.S.C. 1003(c), to pay and benefits comparable to those provided to executive branch law enforcement officers.  This law protects you.  Moreover, the repeated threats by the Postal Service to reduce pay and benefits constitutes a discriminatory act and a violation of the FLSA, specifically 29 U.S.C. Section 215(a)(3), which subjects the Postal Service to additional penalties and damages.

Any Postal Inspectors opposed to the retroactive application of H.R. 5368 should immediately contact FLEOA to express your opposition.  The contact numbers we have are:

John Adler, FLEOA President: 917-715-8465 (mobile) 

Larry Berger, FLEOA General Counsel: 516-671-2688 (office)

Art Mindlin, FLEOA Agency President (USPIS): 973-725-7936 (mobile)

FLEOA General Office: 717-938-2300

POSTED SEPTEMBER 17, 2010

             A couple of weeks ago, we advised you about proposed legislation that would amend Title 5 Section 5545a to include Postal Inspectors.  As discussed in that posting (below), the amendment provides some benefit to Inspectors but does not give them all of the benefits afforded criminal investigators, like night pay, holiday pay and Sunday pay.

            While we have no objection to the bill, the Postal Service is lobbying Congress to have it enacted retroactively.  This we do object to, as it is a blatant attempt to impact the lawsuit by seeking relief from Congress that the Postal Service has not been able to get from the Court.

            On September 16, we sent a letter to Congressman Lynch's office urging him to oppose any effort to have H.R. 5368 enacted retroactively.  We enclosed copies of the letter many of you sent to us.  We would like to send additional letters, so if you have not already done so, please print out the letter to Rep. Lynch, sign it and return it to us by email (clientrelations@osbornlawpc.com), facsimile (212-725-9808) or regular mail.  A copy of the letter sent by my office to Rep. Lynch's office is attached.

            Finally, if you would like to receive these communications, and others, via e-mail, please send us your personal e-mail address and we will add it to our group list.

            Inspector letter to Rep. Lynch

            Osborn Law letter to Rep. Lynch's Office

POSTED AUGUST 30, 2010

             As most of you know by now, Congressman Stephen Lynch from Massachusetts has proposed legislation, H.R. 5368, that would amend Section 5545a of the United States Code to make Postal Inspectors eligible for the same availability pay given to criminal investigators.  Although this is a positive development for Postal Inspectors, there are other comparability standards relating to premium pay provisions in Title 5 that are not included in the proposed bill, such as night pay, holiday pay and Sunday pay.  Also, Postal Inspectors need to be aware that if the bill is passed, they would be formally exempt from overtime pay under the Fair Labor Standards Act without the Postal Service being mandated to fulfill all the premium pay provisions that GS-1811s are required to be paid under Title 5. 

             Our litigation involves the issue of whether Postal Inspectors are currently eligible for FLSA overtime.  We have recently learned that the Postal Service is lobbying to have H.R. 5368 applied retroactively.  This means that if the bill is passed, it would be deemed to have been in effect since the original enactment of Section 5545a in 1994, meaning the exemption from FLSA overtime also would go back to 1994.  This could result in a significant reduction in the dollar value of the damages we are seeking to recover in our litigation.

             It is extremely important that we oppose the Postal Service’s effort to have the bill enacted retroactively.  Below is a form letter we would like you to print, sign and return by email (clientrelations@osbornlawpc.com), facsimile (212-725-9808) or regular mail to our office by September 9, 2010 to show your opposition to the Postal Service’s efforts. 

Form Letter to Rep. Lynch

POSTED AUGUST 5, 2010

             On August 2, we appeared before Judge James V. Selna on the Postal Service’s motion for summary judgment.  In short, Judge Selna denied the Postal Service’s motion, meaning that the case will move forward.

             You will recall that the Postal Service filed an application with the Court seeking to have the case dismissed, arguing that because no other law enforcement officials in the executive branch receive availability pay and overtime pay under the Fair Labor Standards Act, Postal Inspectors should not receive both forms of pay.  The Postal Service further argued that if Inspectors received both forms of compensation, their pay would improperly exceed the pay of other federal law enforcement officers.

             We responded by identifying another group of law enforcement officers (Federal Air Marshals) who perform comparable work to that of Postal Inspectors and who receive FLSA overtime.  We further argued that even if no other such group existed, Postal Inspectors are still entitled to FLSA overtime because no specific exemption exists within the FLSA and the pay comparability law (39 U.S.C. Section 1003(c)) has not repealed or replaced the FLSA.

             On July 30, the Court issued a tentative ruling in our favor, concluding that because Postal Inspectors and Federal Air Marshals shared several common duties, the Court could not grant the Postal Service’s motion.  The Court rejected our argument that we should prevail even if no comparable group of law enforcement officers exists that also receive FLSA overtime. 

             At the hearing on August 2, the Postal Service did not try to argue that the duties for the two jobs were dissimilar; rather, the Postal Service told Judge Selna that the parties should litigate this single issue and put the rest of the case on hold.  We strenuously opposed this request and further argued that even if the issue was resolved against us, the case should proceed for the reason identified above:  Postal Inspectors’ entitlement to FLSA overtime pay is not dependent on whether another group of executive branch law enforcement officers who do similar work also receive overtime pay.

             On August 5, Judge Selna affirmed his tentative ruling in all respects.  This means that our case goes forward.  I expect the Postal Service to appeal Judge Selna’s ruling and to try and persuade Judge Selna to allow the Postal Service to challenge the comparability issue (do Air Marshals perform comparable levels of work to Postal Inspectors?) before allowing the rest of the case to proceed.  We will oppose any such challenge.

             For now, we have a favorable ruling and we can move to the next phase of the case, which is determining whether Inspectors are subject to the “administrative exemption” in the FLSA.  If we prevail on this issue, the case will proceed to trial. Click here to view a copy of Judge Selna's Order

             As all of you know by now, on May 24, 2010, Rep. Stephen Lynch introduced H.R. 5368, the “United States Postal Service Postal Inspectors Equity Act.”  Postal Inspectors currently receive pay and benefits that can be impacted by discretionary decision making by the Postal Service.  The proposed bill is designed to ensure that Postal Inspectors are paid like their counterparts in the executive branch. 

             With respect to the litigation, a hearing is set for August 2, 2010 in federal court in Santa Ana, California, at which time Judge Selna will hear oral argument on the Postal Service’s motion for summary judgment. 

             In short, the Postal Service claims that it is excused from complying with the FLSA overtime statute because (i) it complies with the pay comparability statute (Section 1003(c)) and (ii) that Section 1003(c) impliedly repealed the FLSA.  On the issue of repeal, the Postal Service contends that there is an irreconcilable conflict between the FLSA and Section 1003(c) because plaintiffs have not shown that there are other employees in the executive branch of government who perform comparable work to that of the Postal Inspectors.  We have opposed the application, arguing that there are employees in the executive branch of government who perform comparable work and whose primary work duties are comparable to those of the Postal Inspectors, and that Section 1003(c) does not explicitly or implicitly repeal the FLSA.  On July 19, 2010, the Postal Service filed its reply brief.

             The hearing on August 2 is set for 1:30p.m.  We do not expect a decision from the Court for several weeks after the hearing.  The website will be updated as soon as there is a decision.  Attached are copies of the Postal Service’s opening brief, the Postal Inspector’s opposition brief, and the Postal Service’s reply brief. 

 H.R. 5368

Postal Service’s Opening Brief SJ - June 14, 2010

Postal Inspector’s Opposition SJ - July 6, 2010

Postal Service Reply Brief SJ – July 19, 2010

POSTED MARCH 19, 2010 (updated March 23, 2010)

On February 22, 2010, plaintiffs Robert Nigg and Keith Lewis filed a motion seeking an order to re-open the opt-in period to allow eligible Postal Inspectors to join the lawsuit.  The Postal Service did not oppose the motion. 

On March 19, 2010, the Court granted plaintiffs' motion.  The Court not only deemed defendant's failure to oppose the motion as consent to the relief requested, but also granted the motion on its merits, finding that due to the length of the litigation, many potential plaintiffs have not had the opportunity to join the suit, and that re-opening the consent to join period was in the interest of judicial efficiency.

The Court ordered the Postal Service to provide plaintiffs with the known names, addresses, telephone numbers, and e-mail addresses of all Postal Inspectors employed as of April 1, 2010.  You may be eligible to join if you (i) have worked as a Postal Inspector on or after April 1, 2007 or (ii) worked as a Postal Inspector prior to September 18, 2004, did not join by the original September 18, 2004 deadline, but continued to work as a Postal Inspector after April 1, 2007. 

Eligible Postal Inspectors will have until May 31, 2010 to provide written consent to join this lawsuit.  If you think you are eligible to join the lawsuit, you need not wait for us to notify you.  A copy of the Consent to Join form is attached.  Print it out, complete it and return it to us via e-mail (clientrelations@osbornlawpc.com ), facsimile (212-725-9808) or regular mail to our office address.  We will then file the forms with the Court.

Judge Selna's March 19, 2010 Order also is attached.

The parties spent a considerable amount of time in November and December 2009 attempting to complete discovery and resolve outstanding discovery disputes.  With discovery still not completed on January 8, 2010, the parties filed a stipulation to continue the filing deadlines and hearing on defendant’s renewed motion for summary judgment. 

On January 11, 2010, the Court granted the joint stipulation.  The briefing schedule has been revised as follows:

• Defendant USPS will file its motion for summary judgment no later than March 15;
• Plaintiff will file his opposition to defendant’s motion no later than March 29, 2010; and
• Defendant will file its reply brief no later than April 5, 2010. 

Accordingly, the hearing on defendant's motion for summary judgment, originally scheduled for February 8, has been continued to April 19, 2010.

To determine your eligibility to join the lawsuit (if the court grants our application), please review the timeline below:

POSTED JULY 10, 2009

A scheduling conference has been set by Judge Selna for August 3, 2009.  This is the first conference with the Court since the decision from the Ninth Circuit Court of Appeals.  The purpose of the conference will be to discuss a schedule for discovery (document production and depositions) leading up to a possible trial.  We also intend to ask the Court for permission to file a motion to add new Inspectors to the suit.

POSTED APRIL 16, 2009

On April 14, 2009, the case was reassigned to Judge James V. Selna. I expect a status conference to be scheduled within the next 30 days, at which time the attorneys will meet with Judge Selna, describe the litigation, and discuss how to proceed. Click HERE to see a copy of the assignment.

POSTED FEBRUARY 6, 2009

I am happy to report that the Ninth Circuit Court of Appeals has finally ruled on the Postal Service's motion for rehearing.  In short, the new opinion is nearly identical to the August 27, 2007 opinion, in which the Court of Appeal reversed the decision of the District Court and reinstated your overtime lawsuit.  The Court of Appeal concluded that the overtime provisions of the Fair Labor Standards Act are not irreconcilable with the comparable pay provisions in 39 U.S.C. § 1003(c), meaning that Postal Inspectors may be entitled to FLSA overtime pay.  The Court of Appeal remanded the case back to the District Court, directing the court to determine (1) whether any employees of the executive branch who are eligible to receive FLSA over-time perform work comparable to that of the inspectors, and (2) whether the inspectors satisfy any FLSA exemption or are entitled to FLSA overtime.  This process cannot begin until a judge is assigned to the case, which could take anywhere from 30 to 60 days.  Once a judge is assigned to our case, we intend to ask the court to open the "opt-in" period so that Postal Inspectors who want to join the suit will have an opportunity to do so.