Lambro v. United States

In the United States Court of Federal Claims No. 21-1447 C (Filed: September 20, 2022 ) * * * * * * * * * * * * * * * * ** * * JASON LAMBRO, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * * * * * * * * * * * * * * * * * ** * Joseph A. Whitcomb, Whitcomb, Selinsky, PC, of Denver, CO, for Plaintiff. Matthew J. Carhart, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, D.C., for Defendant, and Jessie James and Maryellen Righi, Assistant General Counsels, U.S. Agency for Global Media, of Washington, D.C., of counsel. OPINION AND ORDER SOMERS, Judge. Before the Court is the government’s motion to dismiss Plaintiff Jason Lambro’s (“Plaintiff”) transfer complaint for lack of subject matter jurisdiction and failure to state a claim. Plaintiff alleges that the U.S. Agency for Global Media (“USAGM” or “agency”) willfully misclassified him and other similarly situated individuals as independent contractors rather than employees. Because of this misclassification, Plaintiff alleges that he did not receive benefits he was entitled to as a federal employee, namely overtime pay under the Fair Labor Standards Act (“FLSA” or the “Act”). In response, the government moved to dismiss all claims that accrued prior to January 28, 2018, as well as Plaintiff’s claim for declaratory relief, for lack of subject matter jurisdiction. In addition, the government moved to dismiss the remainder of Plaintiff’s complaint for failure to state a claim upon which relief may be granted because Plaintiff cannot establish that he is a federal employee entitled to the FLSA’s protections. The government’s motion to dismiss has been fully briefed, and the Court held oral argument on June 15, 2022. For the reasons explained below, the Court grants the government’s motion to dismiss. BACKGROUND A. Factual History As alleged in the operative complaint, since 2002, Plaintiff has worked as a studio technician for Voice of America (“VOA”), a division of USAGM. ECF No. 40 ¶¶ 17, 24 (“2d. Am. Compl.”). He provided services under a series of purchase order agreements that are essentially unchanged from the parties’ initial 2002 agreement. Id. ¶ 24–25. The agreements contained multiple terms that restricted the manner in which Plaintiff worked, including provisions that prohibited subcontracting and established deadlines for work product, along with explicitly stating that “no employer-employee relationship exists” between Plaintiff and the agency. Id. ¶ 25; see generally ECF No. 40-2. Despite the explicit statement that no employer- employee relationship exists, Plaintiff states that the agency “significantly controlled and continues to control the timing and management of Plaintiff’s work.” 2d. Am. Compl. ¶ 28. This included the agency telling Plaintiff when to arrive at work, id. ¶ 29; asking him to “complete . . . non-contracted for tasks,” id. ¶ 33; supplying his equipment, id. ¶ 35; and asking Plaintiff “to remain on-call at times if the agency needed [him] at the office,” id. …

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