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Memorandum To All Current, Former and Future Hispanic Special Agents of the Department of Homeland Security's Bureau of Immigration & Customs Enforcement and Customs Border Protection (Formely known as U.S. Customs Service's Offices of Investigations and Internal Affairs) On June 1, 2004, a New Class Action Lawsuit was filed in the UNITED STATES COURT OF FEDERAL CLAIMS on behalf of all Customs Hispanic Special Agents for Count One: Violation of 5 U.S.C. § 4521-23 and 19 U.S.C. § 267a - Failure to Pay Foreign Language Proficiency Awards to Special Agents at same time as paid to Customs Officers Count II: Violation of 5 U.S.C. § 4521-23 and 19 U.S.C. § 267a - Failure to Use the Same Standards to Pay Foreign Language Proficiency Awards to Customs Officers and Special Agents Status of ongoing of federal class action discrimination lawsuit titled, Miguel A. Contreras, et al., v. Thomas Ridge, Secretary of the Department of Homeland Security

By Anonymous

May 7, 2004 -- Memorandum To All Current, Former and Future Hispanic Special Agents of the Department of Homeland Security's Bureau of Immigration & Customs Enforcement and Customs Border Protection (Formely known as U.S. Customs Service's Offices of Investigations and Internal Affairs)

This memorandum is addresses to all former US Customs Service Hispanic special agents, and all current Hispanic special agents working for the U.S. Bureau of Immigration & Customs Enforcement and U.S. Customs Border Protection, under the Department of Homeland Security.

On May 10, 2002, a class action complaint of discrimination and retaliation was filed in U.S. District Court in Washington, D.C. on behalf of all former, current and future Customs Hispanic special agents. It was alleged that the Customs Service engaged in systematic discrimination against Hispanic Special Agents with regard to promotions, training, transfers and assignments, awards and bonus, and discipline.

The Customs Service’s policies and programs were alleged to limit, segregate and classify Hispanic Special Agents because of their national origin. As a result, Hispanic Agents allegedly received a disproportionately large share of unfavorable work assignments including Spanish-English translation, wiretap monitoring, temporary duty, undercover work, geographic transfers, and assignment to dangerous and otherwise undesirable posts.

To add insult to injury, Hispanic Agents, unlike Customs Inspectors and FBI Agents, were not compensated as authorized by statute for their use of a foreign language.

Further, Hispanics who filed complaints of discrimination and retaliation have been severely retaliated and harassed by their supervisors and managers, ostensibly because of their EEO involvement. It appears the agency condoned such prohibited personnel practices.

Customs has labeled employees who file complaints as disloyal employees, and employees who report misconduct and/or corruption are labeled as disgruntled. The fact of the matter is that discrimination and retaliation cases filed in federal court are tried before trial juries who most of the time find Customs officials guilty of discrimination and retaliation.    

Hispanics Who Have Filed EEO Complaints:
All claims whether employees raised them with a Customs EEO counselor or [may have been tolled and preserved since January 1, 1986 because of the American Pipe Tolling Doctrine and the Peter Gonzalez class action. This means that if employees were discriminated against based on their national origin with respect to promotions, training, assignments (transfers, undercover, wiretap, and Spanish language translation duty), awards (including foreign language pay), discipline, retaliation and harassment and hostile work environment, those claims are still viable and you may be able to recover for them. In addition, Plaintiffs have evidence that these discriminatory practices were in place continuously since 1974. There is a possibility that all such claims by Hispanic Special Agents can be revived pursuant to the continuing violations doctrine for systemic violations of Title VII.

Compensation:
Although it is premature to speak of any settlement yet in this case, the class should be aware that class action settlements are typically weighted towards those that support the litigation by giving evidence and information, serving as a class representative and providing financial support.

Some class action settlements involving other federal law enforcement agencies, used a complex distribution formula which tallied how many times employees experienced various discriminatory practices. It also weighted whether employees testified or gave a declaration or were a significant source of information. All of these further weighted financial and other contributions to the class.

Each class members should keep track of any out of pocket expenses spent on the class litigation because these can be reimbursed. This includes mail, cost of telephone or long distance charges, overnight mail, etc.

Projected Resolution of Class Litigation:
We will be starting class discovery soon. We are approximately nine (9) months away from class certification.

Information and Contributions Needed:
We are asking for your support. Both in terms of information and evidence as well as financial contributions. Those that have not contributed to this point--should start. It will be in their interest because the formula that will govern eventual distribution.

Of course, there is some chance that we will fail and there will be no recovery for anyone. We can't guarantee results, but we all understand the risks involved.

We are moving forward. We believe this is the best chance yet for any reform or compensation for the class.

Notice:
All former and current US Customs Hispanic Special Agents, GS-1811, in grades 12-15, who have been discriminated with respect to promotions, training, assignments (including job transfers), awards, discipline, work assignments based on language skills, and retaliation (including harassment and hostile working environment), are urged to contact lead class action attorney Ronald A. Schmidt or class action representative Miguel Angel Contreras at:

Garvey Schubert Barer (GSBLaw.com), suite 901 1828 L street NW, Washington, DC 20036, Tel: 202 789 8188, Fax: 202 223 2219, (formerly Shaffer, Rapaport & Schmidt, LLP). E-mail: rschmidt@gsblaw.com

Miguel Angel Contreras, 3767 West 18th Place, Yuma, Arizona 85364, Telephone: (928) 329-1099, E-Mail: mac112355@aol.com, Website: www.fhleoa.org

ADDITIONAL INFORMATION:

We have received information that government attorneys representing the defendant in this class action are in the process of contacting and conducting ex parte communications with putative class members. The following guidance is provided for you familiarization with this process:

1. Before class certification, communications with putative class members generally are not barred by the ethical prohibitions on communications with parties represented by counsel.

2.     As a general rule, defense counsel may communicate with putative class members to investigate claims and gather evidence after the class action complaint is filed, AS LONG AS THEY DO NOT MAKE MISLEADING STATEMENTS OR ATTEMPT TO COERCE PUTATIVE CLASS MEMBERS TO OPT OUT OF THE CLASS OR DISSUADE THEM FROM PARTICIPATING IN THE CLASS ACTION.

3.     Defendant's attorneys and designated personnel cannot be misleading, coercive, or threatening in these communications, the court may impose restrictions on future communications, corrective notices, or sanctions. If you experience any of the above, you must contact our class action attorneys!

4.     Courts have held that it is appropriate for a defendant employer to interview its employees ex parte when certain safeguards are met, such as:

     (1) the employees are advised that the interviewer is an attorney representing the defendant;

     (2) the interviewer informs the employee that he or she is investigating the facts in order to defend the case;

     (3) the interview is voluntary;

     (4) the interviewer informs the employee that a refusal to talk will not result in adverse action and that willingness to talk will not lead to any benefits.

In summary, if you are being contacted outside the context of settlement discussions, investigations of allegations, and the ordinary course of business, and you believe that the interview is aimed at discouraging your participation in the class action as a party or a witness you need to report this to our class action attorneys immediately.

Once again, you do not need to answer any questions posed to you by government attorneys representing the defendant. When in doubt, advise the attorneys interviewing you that you need time to contact your own attorney or class counsel.

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JUNE 1, 2004 - NEW CLASS ACTION LAWSUIT!!!!

Bilingual feds demand equal pay
By Bill Conroy,
Posted on Tue Jun 8th, 2004 at 11:15:29 PM EST

A group of Hispanic Customs agents have filed a class-action lawsuit in a special federal court claiming that the government owes them money.
The special agents, who represent a class of more than 400 current and former bilingual Customs agents, contend the U.S. Customs Service -- and its successor agencies within the Department of Homeland Security (DHS) -- have denied them adequate compensation for their second-language abilities.

The Customs agents, who are fluent in English and Spanish, contend that they have been shortchanged on second-language pay awards despite the fact that their fellow agents in the FBI and DEA are afforded fair reimbursement for their bilingual skills. In addition, the special agents charge that other bilingual Customs employees, such as inspectors and canine enforcement officers, are reimbursed fairly for their second-language skills, yet the government has chosen to create extraordinary barriers for similar compensation to be earned by bilingual special agents.

From the lawsuit:

To be eligible for a foreign language proficiency award, Customs Officers (Customs inspectors and canine enforcement officers) need only speak a foreign language at least 10 percent of his/her basic non-overtime, regularly scheduled duty. In contrast to these simple rules, the rules for awarding foreign language proficiency awards to special agents were unduly burdensome and restrictive.

Special agents were required to meticulously document their daily usage of a foreign language using investigative case numbers, confidential informant (“CI”) identification numbers, duties and narrative report.


Special agents had to document, at least, 208 hours of official duty usage to be eligible for any level of award. No credit was given for partial hours and only hours from the basic workweek (i.e. 9 a.m. to 5 p.m.) counted.
Overtime and weekend hours were excluded, even if the special agent was working undercover or another assignment which necessitated Spanish language use during those hours. These unduly restrictive rules had the effect of unlawfully reducing the amounts of foreign language proficiency awards paid to Hispanic special agents and discouraging them from subsequently applying for such awards.

An internal Customs memorandum states that “a conservative estimate of the cost to pay LEOs (law enforcement officers or special agents) Foreign Language Proficiency Awards on a recurring basis, in FY 96 (fiscal year 1996) dollars, would be approximately $2M (million).”

However, after these unduly restrictive rules were implemented, the Customs Service paid special agents only $211,266.00 in foreign language proficiency awards in 1998, the first year of such awards to special agents.

With the recent creation of DHS, special agents with the former U.S. Customs Service became part of the Bureau of Immigration and Customs Enforcement (ICE). Customs inspectors and canine enforcement officers now fall under the jurisdiction of DHS’ Bureau of Customs and Border Protection.

The language-pay litigation was filed by a group of three bilingual Hispanic agents on behalf of both current and former bilingual agents that Customs employed from 1996 through the present. The lawsuit is pending in the U.S. Court of Federal Claims, a special U.S. court that hears cases related to federal money claims, executive rules and government contracts –- actions that might include patent and copyright infringements, federal-contract bid protests, and civilian and military pay claims.

“Perhaps more than any other federal law enforcement agency, the U.S. Customs Service makes heavy use of Spanish-speaking Hispanic special agents along the Southwest Border, in foreign attaché offices, and in Puerto Rico,” the litigation asserts. “It is no exaggeration to state the Customs Service could not effectively function without its Spanish-speaking Hispanic special agents. Hispanic special agents bear a substantial majority of undercover, wiretap, translation and transcription assignments because of their Spanish language ability and knowledge of Hispanic culture.”

Stiffed

Regardless of the extra burden placed on bilingual agents because of their language skills, the agents assert in the lawsuit that the government has refused to recognize that contribution, or to even follow the law with respect to language-proficiency compensation.

More from the lawsuit:

... Customs instituted foreign language proficiency awards for the Customs Officers (non-agents) in 1996 and provided them with retroactive pay for such awards.    

Despite the clear importance of Spanish-language ability to its law enforcement mission, the Customs Service did not pay foreign language proficiency awards to law enforcement officers (special agents) until 1998. The authorizing statutes for foreign language proficiency awards … contemplated that Customs Officers would only receive such awards to the same extent as provided to law enforcement officers (special agents). The Custom Service unlawfully withheld foreign language proficiency awards from Special Agents while paying such awards to Customs Officers.

... This statutorily imposed mandate requires that Customs use the same set of rules for both Customs Officers and Customs law enforcement officers (special agents) in determining eligibility for foreign language proficiency awards. Yet, the Customs Service used different and more restrictive rules for awarding foreign language proficiency awards to Customs law enforcement officers (special agents) than those for Customs Officers. This too is a violation of the authorizing statutes and (the special agents) are entitled to have their foreign language proficiency awards calculated using the less restrictive standard.

... Special agents were ordered to redo their reports to eliminate any overtime hours that had been included in their reports on foreign language use. When they complained about the unreasonable restrictiveness of the policy, the Customs Service issued a memorandum in April 1998 claiming, “We cannot change the statute to allow overtime hours to be credited for reporting purposes.” This was patently false. The authorizing statutes ... do not forbid the crediting of overtime hours.

Synergy

The agents who brought the language-proficiency lawsuit are also part of class-action discrimination action currently pending in U.S. District Court in Washington, D.C. That litigation alleges that Customs and its successor DHS agency, ICE, has discriminated against Hispanic agents in training, assignments, compensation awards (including second-language pay), discipline and promotions.

Customs officials claim the District Court lawsuit is without merit and filed a motion for summary judgment in February of this year.

“The U.S. Customs Service is proud of its diverse workforce, which includes a significant number of Customs special agents of Hispanic ancestry,” the agency asserted in a prepared statement released at the time the class-action case was filed in the spring of 2002. “The allegations of this lawsuit, that Customs has discriminated against Hispanic Customs agents, are without merit and are not supported by statistical evidence.”

The judge in the D.C. case found against Customs in February and ruled that the agents should have their day in court with respect to most of their discrimination claims. As a result, the case is now proceeding toward a trial.

However, the judge also ruled that the agents failed to meet the legal threshold to proceed with their claim that they were inadequately compensated for their second-language skills. Essentially, without ruling on the merits of that claim, the judge threw it out on a legal technicality.

That led attorneys for the Hispanic agents to file the recent class-action case in the U.S. Court of Federal Claims. In addition to seeking monetary damages in the case, Customs agents are asking the court to prevent the government “from committing further violations of the law” with respect to language-proficiency pay for special agents.

“As a result of these violations of the statute, many Hispanic Special Agents received foreign language proficiency awards that were substantially less than what they should have received,” the agents assert in their lawsuit. “Many others became discouraged by these abusive and illegal requirements and did not apply even though they easily would have qualified for such awards.

“Plaintiffs have been damaged financially by the Customs Service’s failure to provide foreign language proficiency awards as mandated by law. The exact amount (is) to be determined at trial.”

BELOW IS THE ACTUAL CLASS ACTION CLAIM FILED IN COURT ON JUNE 1, 2004:

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

MIGUEL A. CONTRERAS, JORGE L. BALDERRAMA and ANITA TRUJILLO, INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS,                                                       Plaintiffs, vs. THE UNITED STATES Defendant.     No. ___________ CLASS ACTION    

COMPLAINT
I.    NATURE OF THE ACTION
    1.    This is an action to recover money damages against the United States for failing to pay, in part or in whole, foreign language proficiency awards under the Federal Employees Pay Comparability Act, 5 U.S.C. §§ 4521-23. Under those provisions, agencies may pay an annual cash award, up to five percent (5%) of base pay, to any law enforcement officer (Special Agents) employed in or under such agency who possesses and makes substantial use of one or more foreign languages in the performance of official duties.
    2.    In 1994, Congress passed the Customs Officers Pay Act, 19 U.S.C. § 267a, which authorized the payment of foreign language proficiency awards to Customs Officers (Customs Inspectors and Canine Enforcement Officers) to the same extent and in the same manner as provided to law enforcement officers (Customs Special Agents). The United States Customs Service (“Customs” or “Customs Service”) began paying foreign language proficiency awards to Customs Officers in 1996, but did not pay such awards to its law enforcement officers (Customs Special Agents) until 1998. Under the statutory scheme, however, when the Customs Service made the decision to pay the Customs Officers foreign language proficiency awards, it effectively made the decision to pay the law enforcement officers (Customs Special Agents) as well. Consequently, the Plaintiff class of Hispanic Special Agents is entitled to foreign language proficiency awards for years in which Customs paid such awards to Customs Officers.
    3.    In contravention of Title 19 U.S.C. §267a, which directs that Customs Officers be paid to the same extent and the same manner as law enforcement officers (Special Agents) under 5 U.S.C. §§ 4521 et. seq., the Customs Service used different and more restrictive regulations and standards for awarding foreign language proficiency awards to Customs law enforcement officers (Special Agents) than those used for Customs Officers. To be eligible for a foreign language proficiency award, Customs Officers (Customs Inspectors and Canine Enforcement Officers) need only have a supervisor certify annually that he or she uses a foreign language at least 10% of his or her basic non-overtime, regularly scheduled duty. In contrast to these simple regulations, the regulations for awarding foreign language proficiency awards to Special Agents were unduly burdensome and restrictive. Special Agents were required to meticulously document their daily use of a foreign language using investigative case numbers, confidential informant (“CI”) identification numbers, duties and narrative report. Special Agents had to document, at least, 208 hours of annual official duty usage to be eligible for any level of award. No credit was given for partial hours and only hours from the basic workweek (i.e. 9 a.m. to 5 p.m.) counted. Overtime and weekend hours were excluded, even if the Special Agent was working undercover or another assignment which necessitated Spanish language use during those hours.
    4.    These unduly restrictive regulations and standards had the effect of unlawfully reducing the amounts of foreign language proficiency awards paid to Hispanic Special Agents and discouraging them from subsequently applying for such awards. An internal Customs memorandum states that “a conservative estimate of the cost to pay LEOs [law enforcement officers or Special Agents Foreign Language Proficiency Awards on a recurring basis, in FY 96 dollars, would be approximately $2M [million.” However, after these unduly restrictive regulations were implemented, the Customs Service paid Special Agents only $211,266.00 in foreign language proficiency awards in 1998, the first year of such awards to Special Agents.
    5.    The United States Customs Service and its successor organizations at the Department of Homeland Security are fully aware of their statutory obligations and their failure to honor these obligations with respect to foreign language proficiency awards.
    6.    Due to their Spanish language ability and knowledge of Hispanic culture, Hispanic Special Agents of the former Customs Service and its successor organizations at the Department of Homeland Security play a key role in border security and drug interdiction. Most Hispanic Special Agents have been or are currently assigned to the southwest border of the United States where they encounter Spanish speaking subjects as investigative targets, confidential informants, victims, and witnesses. The southwest border is an area of intense drug smuggling activity. In 1998, almost two-thirds of all U.S. Customs Service criminal referrals were made in six federal judicial districts, five of which are located on the southwest border. Spanish language ability is so important to the Customs law enforcement mission that a 1992 Blue Ribbon Panel appointed by the Customs Commissioner recommended that the Customs Service make Spanish language proficiency a job requirement for all Special Agents operating on the Southwest Border. The Customs Service rejected this recommendation.
    7.    Plaintiffs are Hispanic Special Agents of the former United States Customs Service and current employees of the Department of Homeland Security. All of the class representatives are bilingual and fluent in both Spanish and English. All of them have made substantial use of their foreign language ability in the performance of their official duties as required by 5 U.S.C. § 4523. They bring this action on their own and as class representatives on behalf of a class of all other Hispanic Special Agents (GS-12 through GS-15) who have been employed by the former United States Customs Service or its successor organizations at the Department of Homeland Security from 1996 until the present who have made substantial use of their foreign language ability as required by 5 U.S.C. § 4523.     This action is brought pursuant to Rule 23 of the Rules of the Court of Federal Claims (“RCFC”) for money damages for past, present and future violations of the foreign language proficiency awards authorizing statutes (Federal Employees Pay Comparability Act, 5 U.S.C. § 4521-23, and Customs Officers Pay Act, 19 U.S.C. § 267a), and such further relief as is necessary to prevent further violations and to ensure that eligible Hispanic Special Agents receive the compensation to which they are statutorily entitled.
II.    JURISDICTION & TOLLING
    8.    Pursuant to the Tucker Act, 28 U.S.C. § 1491(a) and the Back Pay Act, 5 U.S.C. §5596 et. seq., the Court has jurisdiction over this matter.
    9.    In January 1995, Special Agent Miguel Contreras filed a class action equal employment opportunity complaint which alleged, inter alia, that the Customs Service discriminated against Hispanic Special Agents as a class because it did not pay them foreign language proficiency awards. The Equal Employment Opportunity Commission (“EEOC”) accepted the foreign language proficiency awards class claims for processing and certified the class in 1995. On December 21, 1995, the Treasury Department issued its final agency decision, rejecting the Administrative Judge’s opinion because it found that the class complaint was untimely and did not meet the prerequisites of a class complaint.
    10.    On May 11, 1998, the EEOC vacated the Department of Treasury’s final agency
decision and certified the class again. The EEOC specifically found that the Department of Treasury had read the EEOC regulations with regard to the certification of a class complaint too narrowly. The EEOC determined that Contreras had addressed agency practices with regard to awards, discipline, language skills during EEO counseling and that he had individual EEO complaints concerning discipline and performance evaluations which were properly consolidated with the class complaint. The EEOC concluded that allegations concerning promotions, training,
assignments, awards, discipline and work assignments based on language skills were
timely raised.

    11.    The Department of Treasury sought reconsideration of the EEOC’s decision to
certify the class, but the EEOC denied the request on October 22, 1999, and ordered again
that the Contreras’ charge be processed as a class complaint.
    12.    On June 22, 2000, EEOC Administrative Judge Matthew Bradley issued an Order
defining the class as all Special Agents (Criminal Investigators), job series 1811, grades 12 through 15 of Hispanic national origin, employed in the Office of Investigations and the Office of Internal Affairs of the United States Customs Service. The Order stated that the “decision certifying the class does so based on the theory that the Agency’s policies and practices toward
Spanish-speaking agents, specifically regarding how they are assigned, have a negative
impact with respect to training, promotions, awards and discipline.”
    13.    The case was reassigned to EEOC Administrative Judge Joel Kravetz, who issued an Order noting that “the parties also agree that each of the five alleged actions (training, assignments, awards, discipline, and promotion) comprise adverse actions.” The parties began discovery on promotions, training, assignments, discipline and awards, including foreign language proficiency awards. The parties continued with discovery in preparation for the hearing until Plaintiffs withdrew from the administrative process and filed their class action complaint in the United States District Court for the District of Columbia on May 10, 2002.
    14.    The former United States Customs Service and/or its successor at the Department of Homeland Security filed a motion for summary judgment that was partially granted by the District Court on February 26, 2004. The Court dismissed the class claims involving foreign language proficiency awards for failure to exhaust administrative remedies because it found that Special Agent Contreras had not contacted an EEO counselor within 45 days of an alleged discriminatory compensation action. Contreras v. Ridge, 305 F. Supp. 2d 126, 134 (D.D.C. 2004).
    15.    Plaintiffs timely filed a motion for reconsideration on this issue, which was subsequently denied by the District Court on May 21, 2004. Before the District Court’s Order became effective, Special Agents Contreras, Balderrama and Trujillo filed this action in the Federal Court of Claims.
III.    PARTIES
    16.    The class representatives are all current or former Hispanic Special Agents (series 1811 criminal investigators) of the United States Customs Service and its successor organizations at the Department of Homeland Security. All of the named Plaintiffs are bilingual and speak both Spanish and English fluently. All of them have made substantial use of their foreign language ability in the performance of their official duties as required by 5 U.S.C. § 4523 to be eligible for foreign language proficiency awards. Upon information and belief, the Plaintiffs received less than they were entitled to in foreign language proficiency awards because of Defendants’ violations of the authorizing statutes as detailed herein.
The class representatives are as follows:
        a.    In 1988, Plaintiff Miguel A. Contreras (“Special Agent Contreras”) was initially hired by the United States Customs Service as a GS-1811-12 Special Agent and assigned to the Office of Enforcement in El Centro, California. Because the office was located at the Mexican border, almost all of his assigned cases involved Spanish speaking subjects, i.e., targets, confidential informants, victims, and witnesses. In 1992, Special Agent Contreras was promoted to Senior Special Agent (GS-13) and relocated to the Detroit Field Office, where his enforcement investigative activities focused on suspected drug traffickers of Hispanic heritage. This also required his Spanish language skills to interview suspects, witnesses and victims. In 1995, Special Agent Contreras was re-assigned to the Yuma, Arizona office, also another US/Mexico border office, where the vast majority of his investigative cases involve Spanish speaking subjects.
        b.    In 1989, Jorge L. Balderrama (“Special Agent Balderrama”) became a Special Agent with the United States Customs Service and was assigned to the El Paso, Texas Special Agent in Charge (“SAIC”) office. Because the office was near the U.S.-Mexico border, almost all of his assigned cases involved Spanish speaking subjects, i.e., targets, confidential informants, victims, and witnesses. Special Agents, Balderrama was required to use his Spanish language ability in performing arrests, translating, interviewing witness, and interrogating criminal suspects. In 1997, Special Agent Balderrama, now a GS-13 Senior Special Agent, transferred to Internal Affairs in El Paso, Texas. In August 1999, he was transferred to the Dallas, Texas Office of Investigations as a result of a directed reassignment. He sought a hardship transfer back to El Paso for family reasons, but was unsuccessful. To reunite with this family in El Paso, Special Agent Balderrama accepted a position as an Aviation Enforcement Officer, GS-1801-11. As an Aviation Enforcement Officer in El Paso, Special Agent Balderrama continues to make substantial use of his Spanish language ability in the performance of his official duties.
        c.    In 1997, Plaintiff Trujillo (“Special Agent Trujillo”) applied and was hired as a GS-1811-09 Special Agent by the Customs Service. She was assigned to the Office of Investigation in El Paso, Texas. Because the office was located at the Mexican border, almost all of her assigned cases involved Spanish speaking subjects, i.e., targets, confidential informants, victims, and witnesses. Her duties therefore required extensive use of her Spanish language skills. In 2002, Special Agent Trujillo was transferred and relocated to the Houston Office, where her law enforcement and investigative activities focused on suspected drug traffickers of Hispanic heritage. Approximately seven months later, Special Agent Trujillo was promoted to Senior Special Agent (GS-13). Her duties in the El Paso office require her to interview suspects, confidential informants, witnesses and victims in the Spanish language. Special Agent Trujillo continues to be assigned to the Houston office where the vast majority of her investigative cases involve Spanish speaking subjects.
    17.    Defendant, the United States of America, acts by and through its agencies and officers. Both the Department of Treasury and the Department of Homeland Security are executive agencies of the United States. The United States Customs Service was a Bureau of the Department of Treasury until it was transferred to the Department of Homeland Security in March 2003, pursuant to the Homeland Security Act of 2002, P.L. No. 107-296, and the President's Reorganization Plan Modification of January 2003.
IV.    FACTUAL ALLEGATIONS
    18.    In 1990, Congress passed the Federal Employees Pay Comparability Act which was codified as 5 U.S.C. § 4521 et. seq. Under those provisions, agencies may pay an annual cash award, up to five percent (5%) of base pay, to any law enforcement officer employed in or under such agency who possesses and makes substantial use of one or more foreign languages in the performance of official duties. The award is in addition to the basic pay of the recipient. 5 U.S.C. § 4522.
    19.    Pursuant to 5 U.S.C. § 4521(1), persons who hold GS-1811 series criminal investigator Special Agent (“Special Agents”) positions are law enforcement officers.
    20.    More than any other federal law enforcement agency, the U.S. Customs Service made heavy use of Spanish-speaking Hispanic Special Agents along the Southwest Border, in foreign attaché offices, and in Puerto Rico. It is no exaggeration to state the Customs Service could not effectively functioned without its Spanish-speaking Hispanic Special Agents. Hispanic Special Agents bear a substantial majority of undercover, wiretap, translation and transcription assignments because of their Spanish language ability and knowledge of Hispanic culture. In fact, Spanish language proficiency is so important that the 1992 Blue Ribbon Panel appointed by the Customs Commissioner recommended that the Customs Service make it a job requirement for all agents operating on the Southwest Border.
    21.    “Customs Officer” has been defined by the U.S. Customs Service to mean only those individuals assigned to positions as “Customs Inspector,” “Supervisory Customs Inspector,” “Canine Enforcement Officer,” or “Supervisory Canine Enforcement Officer.” See National Treasury Employees Union v. Weise, 100 F.3d 157 (D.C. Cir. 1996).
    22.    In 1994, Congress passed the Customs Officers Pay Act, which authorized foreign language proficiency awards to Customs Officers to the same extent and in the same manner as to law enforcement officers. Codified at 19 U.S.C. § 267a (2004), it provides as follows:
    Cash awards for foreign language proficiency may, under regulations prescribed
    by the Secretary of the Treasury, be paid to customs officers (as referred to
    in section 5(e)(1) of the Act of February 13, 1911 [19 USCS § 267(e)(1)) to
    the same extent and in the same manner as would be allowable under
    subchapter III of chapter 45 of title 5, United States Code [5 USCS §§ 4521 et seq.,
    with respect to law enforcement officers (as defined by section 4521 of such title).

(emphasis added). This is the only statutory authorization for paying such awards to Customs Officers.
    23.    After failing to receive foreign language proficiency awards for two years, Customs Inspectors in Miami, Florida filed formal complaints with the Equal Employment Opportunity Commission. In January 1996, Customs Inspectors demanded further action and threatened the Customs Service with a boycott of the Spanish language at ports in Miami.
    24.    In a press release dated January 17, 1996, U.S. Customs Commissioner George Wiese stated, “Customs has every intention of complying with the law and doing what is right for our employees.” See, Press Release, U.S. Customs Service, Customs Statement on Foreign Language Awards for Customs Officers (January 17, 1996), attached hereto as Exhibit 1.     25.    Customs management officials met with National Treasury Employees Union (“NTEU”) representatives and negotiated foreign language proficiency awards for Customs Officers. Customs instituted foreign language proficiency awards for the Customs Officers in 1996 and provided them with retroactive pay for such awards.    
    26.    The authorizing statutes for foreign language proficiency awards (Federal Employees Pay Comparability Act, 5 U.S.C. § 4521-23 and Customs Officers Pay Act, 19 U.S.C. § 267a) contemplated that Customs Officers would only receive such awards to the same extent and in the same manner as would be allowable to law enforcement officers (Special Agents). Therefore, the statutes presume a common set of regulations and standards for the implementation of foreign language proficiency awards for both Customs Officers and Customs law enforcement officers (Special Agents) under 5 U.S.C. § 4523. Under this statutory command, any unitary set of regulations governing such awards must address and authorize the manner of payment to law enforcement officers before any payment to Customs Officers would be permitted. When the Customs Service made the decision to pay the Customs Officers foreign language proficiency awards, it effectively made the decision to pay the law enforcement officers (Special Agents) as well. Consequently, the Plaintiff class of Special Agents are entitled to foreign language proficiency awards for the years in which such awards were made to Customs Officers.
    27.    The United States Customs Service and its successor organizations at the Department of Homeland Security are fully aware of their statutory obligations, and their failure to honor these obligations with respect to foreign language proficiency awards. In fact, the Customs Commissioner sent a Memorandum in 1996 to Treasury Undersecretary for Enforcement Ronald Noble, the Customs Commissioner which specifically identified that it is a problem that Customs is negotiating with the National Treasury Employees Union (NTEU) to pay Foreign Language Proficiency Awards to Customs Officers without paying such awards to Law Enforcement Officers (Special Agents). See 1996 Commissioner Memorandum, attached hereto as Exhibit 2.
    28.    The Memorandum further states that “[a conservative estimate of the cost of paying LEO’s Foreign Language Proficiency Awards on a recurring basis, in FY 96 dollars, would be approximately $2M [million.” As a result, the Commissioner advised that “it is not my intention to take no further steps to authorize payment of Foreign Language Proficiency Awards to LEOs within Customs” until specific policy guidance is provided.     In 1997, Customs implemented its foreign language proficiency award program for Special Agents, Customs Pilots and Marine Enforcement Officers, but did not pay out any awards until 1998
    29.    Title 19 U.S.C. §267a specifically directs that Customs Officers be paid to the same extent and the same manner as law enforcement officers (Special Agents) under 5 U.S.C. §§ 4521 et. seq. This statutorily imposed mandate requires that Customs use the same set of regulations for both Customs Officers and Customs law enforcement officers (Special Agents) in determining eligibility for foreign language proficiency awards. The Customs Service, however, used different and more restrictive regulations for awarding foreign language proficiency awards to Customs law enforcement officers (Special Agents) than those for Customs Officers. This also is a violation of the authorizing statutes and Plaintiffs are entitled to have their foreign language proficiency awards calculated using the less restrictive standard.
    30.    To be eligible for a foreign language proficiency award, Customs Officers (Customs Inspectors and Canine Enforcement Officers) need only have a supervisor certify annually that he or she uses a foreign language at least 10% of his or her basic non-overtime, regularly scheduled duty. In contrast to these simple regulations, the regulations for awarding foreign language proficiency awards to Special Agents were unduly burdensome and restrictive.
    31.    Special Agents were required to meticulously document their daily usage of a foreign language using investigative case numbers, confidential informant (“CI”) identification numbers, duties lists and narrative report. Special Agents had to document at least 208 hours of annual official duty usage to be eligible for any level of award. No credit was given for partial hours and only hours from the basic workweek (i.e. 9 a.m. to 5 p.m.) counted. Overtime and weekend hours were excluded, even if the Special Agent had been assigned to undercover or other assignments which necessitated Spanish language during those hours. Undercover, wiretap and other assignments involving Hispanic targets and witnesses involve Spanish language use. These assignments predominantly occur during late evenings and early morning hours and on weekends.
    32.    These unduly burdensome and restrictive regulations had the effect of unlawfully reducing the amounts of foreign language proficiency awards paid to Special Agents and discouraging them from subsequently applying for such awards. In 1998, for example, the first year payout for foreign language proficiency awards for Special Agents was only $211,266.00, a far cry from the $2.0 million “conservative” estimate that the Customs Commissioner had sent to Undersecretary Noble in 1996.
    33.    Special Agents were ordered to redo their reports to eliminate any overtime hours that had been included in their reports on foreign language use. When they complained about the unreasonable restrictiveness of the policy, the Customs Service issued a memorandum in April 1998 claiming, “we cannot change the statute to allow overtime hours to be credited for reporting purposes.”     This was patently false. The authorizing statutes, 5 U.S.C. § 4521 et. seq., do not forbid the crediting of overtime hours. In fact, 5 U.S.C. § 4523 requires only that eligible law enforcement officers make substantial use of one or more foreign languages in the performance of official duties. To the extent that overtime hours are “in the performance of official duties,” the Customs Service’s disallowance of such hours is directly contrary to the statute. Plaintiffs are entitled to have their Spanish speaking overtime hours count in calculating their entitlement to foreign language proficiency awards. Plaintiffs also are entitled to have partial hours of Spanish language use count towards fulfilling 5 U.S.C. § 4523’s requirement of “substantial use.”         
    34.    As a result, many Hispanic Special Agents received foreign language proficiency awards that were substantially less than what they should have received. Many others became discouraged by these abusive and unlawful requirements and did not apply even though they easily would have qualified for such awards. In 2002, the Customs Service issued a Memorandum revoking some of these restrictions, noting that the program relied on a method of documenting and calculating language pay awards that was “tedious, cumbersome, and required a daily record of language usage.”
V.    CLASS ACTION ALLEGATIONS
    35.    Plaintiffs bring this class action pursuant to RCFC 23 on behalf of a class defined as all Hispanic persons who are now or have been employed as 1811 series criminal investigator Special Agents (GS-12 through GS-15) with the former U.S. Customs Service or its successor organizations at the Department of Homeland Security on or after January 17, 1996 who have made substantial use of their foreign language ability in the     performance of their official duties as required by 5 U.S.C. § 4523.
    36.    Upon information and belief, the number of class members is in excess of 400 Hispanic Special Agents. The class of Plaintiffs is numerous and therefore joinder of all members is impracticable.
    37.    The size and scope of the class of Plaintiffs is manageable. All of the Plaintiffs have worked or do work for a common employer in comparable positions. The former United States Customs Service and its successor organizations at the Department of Homeland Security maintain records that clearly and easily identify class members and their last known addresses.
    38.    There are questions of fact and law that are common to the entire class. Such common questions include the following:
    a.    Whether the United States Customs Service violated federal law when it paid foreign language proficiency awards to Customs Officers without paying such awards to its law enforcement officers (Special Agents) in contravention of the authorizing statutes.
    b.    Whether the United States Customs Service violated federal law when it used different regulations for paying foreign language proficiency awards to Customs Officers and law enforcement officers (Special Agents) in contravention of the authorizing statutes.
    c.    Whether the United States Customs Service violated federal law when it disallowed overtime hours in calculating eligible hours for foreign language proficiency awards
in contravention of the authorizing statutes.
    d.    Whether the United States Customs Service or its successor organizations in the Department of Homeland Security are liable to current and former eligible Hispanic Special Agents for failing to pay, in part or in whole, foreign language proficiency awards.
    e.    Whether the United States Customs Service or its successor organizations in the Department of Homeland Security are liable to current and former eligible Hispanic Special Agents for failing to establish a foreign language proficiency award program which paid Customs Officers and Customs law enforcement officers (Special Agents) to the same extent and in the same manner.
    39.    The common issues of law predominate over separate factual issues affecting individual class members.
    40.    Plaintiffs’ claims are typical of the claims of the class. Plaintiffs have no interest antagonistic to the claims of the class and will represent the class without conflicts of interest.
    41.    Plaintiffs will fairly and adequately protect the interests of the class. Plaintiffs are committed to the vigorous representation of the class and have retained competent class counsel with experience in the prosecution of complex class action litigation.
    42.    Defendant has acted on grounds generally applicable to the class, thereby justifying relief for the class as a whole.
    43.    Plaintiffs are unaware of any other litigation against the Defendant involving foreign language proficiency awards or the statutory or regulatory provisions under which those awards are provided.
    44.    Because of the nature of the claims asserted by the Plaintiff class, involving violations in the administration of statutorily mandated compensation procedures equally and commonly available to all members of the class, no individual class member has an interest in individually controlling the prosecution of his or her claim.
    45.    The claims of many class members are so small that they are not otherwise likely to be pursued. In addition, many Special Agents with valid claims would be disinclined to pursue an action on an individual basis, even though statutorily entitled to a claim, for fear of retaliation, negative career repercussions, departmental disfavor, or other stigma, prejudice or bias associated with pursuit of a legal action against an employer, as a result of pursuing this action.
    46.    Given the statutory and regulatory structure that governs entitlement to foreign language proficiency awards for law enforcement officers, the prosecution of separate actions by individual members of the class would create the possibility of inconsistent adjudications, which would establish inconsistent standards for Defendant with respect to its obligation to compensate law enforcement personnel fairly and consistently for foreign language proficiency awards under the statutes and regulations.
    47.    For all of the above stated reasons, the certification of the class action would serve the interest of justice.

VI.    COUNT ONE

Violation of 5 U.S.C. § 4521-23 and 19 U.S.C. § 267a
Failure to Pay Foreign Language Proficiency Awards to Special Agents
at same time as paid to Customs Officers

    48.    Plaintiffs incorporate herein by reference the allegations of the Complaint set forth in paragraphs 1-47 above.
    49.    In 1996, the United States Customs Service began paying foreign language proficiency awards to Customs Officers, but did not pay law enforcement officers (Special Agents) until 1998.
    50.    Title 19 U.S.C. §267a specifically directs that the agency may pay cash awards to Customs Officers to the same extent and in the same manner as would be allowable under 5 U.S.C. §4521 et. seq. with respect to law enforcement officers (Special Agents). The statute presumes a common set of regulations and standards for the implementation of foreign language proficiency awards for both Customs Officers and Customs law enforcement officers (Special Agents) under 5 U.S.C. § 4523. Under this statutory command, any unitary set of regulations governing such awards must address and authorize the manner of payment to law enforcement officers before any payment to Customs Officers would be authorized.
    51.    Under this statutory scheme, when the Customs Service made the decision to pay the Customs Officers foreign language proficiency awards, it effectively made the decision to pay the law enforcement officers (Special Agents) as well. Consequently, the Plaintiff class of Special Agents is entitled to foreign language proficiency awards for the years in which such awards were paid to Customs Officers.
    52.    As a result, Plaintiffs have been damaged financially by the Customs Service’s failure to provide foreign langue proficiency awards as mandated by law. The exact amount to be determined at trial.

VII.    COUNT TWO

Violation of 5 U.S.C. § 4521-23 and 19 U.S.C. § 267a
Failure to Use the Same Standards to Pay Foreign Language Proficiency Awards to
Customs Officers and Special Agents

    53.    Plaintiffs incorporate herein by reference the allegations of the Complaint set forth in paragraphs 1-52 above.
    54.    Title 19 U.S.C. §267a directs that Customs Officers be paid to the same extent and the same manner as law enforcement officers (Special Agents) under 5 U.S.C. §§ 4521 et. seq. This statutorily imposed mandate requires Customs to use the same set of regulations for Customs Officers and law enforcement officers (Special Agents) in determining eligibility for foreign language proficiency awards. However, the Customs Service used different and more restrictive regulations and standards for awarding foreign language proficiency awards to Customs law enforcement officers (Special Agents) than those for Customs Officers. This is a violation of the authorizing statutes and Plaintiffs are entitled to have their foreign language proficiency awards calculated using a unitary standard. Since the regulations used for Customs Officers were established first and are less restrictive, the Plaintiffs are entitled to have their foreign language proficiency awards calculated using those standards.
    55.    As a result, many Hispanic Special Agents received foreign language proficiency awards that were substantially less than what they should have received. Many others became discouraged by these abusive and illegal requirements and did not apply even though they easily would have qualified for such awards.
    56.    Plaintiffs have been damaged financially by the Customs Service’s failure to provide foreign langue proficiency awards as mandated by law. The exact amount to be determined at trial.
COUNT III

Violation of 5 U.S.C. § 4523
The Customs Service Policy of Disallowing Overtime and Partial Hours is contrary to the authorizing statute for Foreign Language Proficiency Awards

    57.    Plaintiffs incorporate herein by reference the allegations of the Complaint set forth in paragraphs 1-56 above.
    58.    In order to be eligible for a foreign language proficiency award, Special Agents had to document, at least, 208 hours of official duty usage to be eligible for any level of award. No credit was given for partial hours and only hours from the basic workweek (i.e. 9 a.m. to 5 p.m.) counted. Overtime and weekend hours were excluded, even if the Special Agent had been assigned to undercover or other assignments which necessitated Spanish language during those hours. Undercover, wiretap and other assignments involving Hispanic targets and witnesses involve Spanish language use. These assignments predominantly occur during late evenings and early morning hours and on weekends.
    59.    Customs management ordered Special Agents to redo their reports to eliminate any overtime hours that had been included with regard to their foreign language use. When the Special Agents complained about the unreasonable restrictiveness of the policy, the Customs Service issued a memorandum in April 1998 claiming, “we cannot change the statute to allow overtime hours to be credited for reporting purposes.”     This was patently false. The authorizing statutes, 5 U.S.C. § 4521 et. seq., do not forbid the crediting of overtime hours. In fact, 5 U.S.C. § 4523 requires only that eligible law enforcement officers make substantial use of one or more foreign languages in the performance of official duties. To the extent that overtime hours are “in the performance of official duties,” the Customs Service’s disallowance of such hours is directly contrary to the statute. Plaintiffs are entitled to have their Spanish language use during overtime hours count in calculating their entitlement to foreign language proficiency awards. Plaintiffs also are entitled to have partial hours of Spanish language use count towards fulfilling 5 U.S.C. § 4523’s requirement of “substantial use.”         
    60.    As a result of these violations of the statute, many Hispanic Special Agents received foreign language proficiency awards that were substantially less than what they should have received. Many others became discouraged by these abusive and illegal requirements and did not apply even though they easily would have qualified for such awards.
    61.    Plaintiffs have been damaged financially by the Customs Service’s failure to provide foreign language proficiency awards as mandated by law. The exact amount to be determined at trial.
VIII.    PRAYER FOR RELIEF
    62.    Wherefore, Plaintiffs respectfully request that this Court:

    (a)    Certify this action as a class action pursuant to Rule 23 of the Rule of the Court of Federal Claims, certify Plaintiffs as class representatives, and approve the undersigned attorneys as class counsel;
    (b)    Grant judgment in Plaintiffs’ favor declaring that Defendant has violated the provisions of law set forth above and enjoining Defendant from committing further violations of the law;
    (c)     Award damages for the denial of foreign language proficiency awards and for failure to follow the statute in an amount in excess of ten million dollars;
    (d)    Award damages for benefits lost by Plaintiffs due to Defendant’s improper actions, including, but not limited to lost matching contributions to the Thrift Savings Plan, lost tax savings from increased individual contributions to the Thrift Savings Plan, and lost earnings from these amounts in the Thrift Savings Plan;
    (e)    Award damages for lost retirement benefits caused by the denial of these payments;
    (f)    Award prejudgment and post-judgment interest;
    (g)    Award reasonable attorney’s fees, costs and expenses; and
    (h)     Award such other equitable and legal relief as the Court deems just.


       
                            Respectfully Submitted,


                            COUNSEL FOR THE PLAINTIFFS



                            _____________/s/_____________________                                Ronald A. Schmidt                                
OF COUNSEL                    Garvey Schubert Barer
David J. Shaffer                    1000 Potomac Street, N.W., 5th Floor
                            Washington, DC 20007-3501
                            (202) 965-7880
June 1, 2004                        (202) 965-1729 (facsimile)


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