BBG Watch Commentary
The Washington-based law firm, Themis PLLC, plans to file a motion sometime next week to certify the $400 million class action in a federal court on behalf of Broadcasting Board of Governors (BBG) contract employees, BBG Watch has learned.
Last week, the firm’s lawyers filed their response in opposition to the government’s motion to dismiss their amended complaint in the class action lawsuit, Lee, et al. v. United States of America, 1:15-cv-01555-C. Themis had filed the lawsuit on December 21, 2015, in the United States Court of Federal Claims. The class action demands back-pay to compensate the class members for the pay and benefits that, the firm alleges, the BBG was unlawfully withholding from its contractors. A copy of the Amended complaint, filed on March 7th, 2016, can be found here.
The agency argued that plaintiffs and class members do not have standing to bring Back Pay Act claims because they were never “appointed” as “employees” as defined in the Act. The agency also argued that the BBG contractors needed to file their complaints first with the agency’s contracting officers.
According to an e-mail sent out by the firm to its clients and prospective class members, “it was the BBG’s intentional acts that deprived the contractors of appointed employment.”
“There is not a single reported case in which a government agency acted willingly to deprive its hires of the protections of the Back Pay Act and got away with it,” the firm said. “We urged the Court,” the firm told its clients and prospective class members, “not to allow the government to get away with it here.”
“[E]ven if the Court finds that we lack standing under the Back Pay Act,” the firm also said, “we are confident that the government will lose on its second argument for dismissal: whether our contractors needed to file first with the contracting officers.”
“We showed that the government’s conduct was fraudulent, and when a claim involves fraud, the agency has no authority to consider such a claim and it must go directly to the court,” the firm’s e-mail says. “The agency is in no position to sit in judgment of its own misdeeds, and the court is the proper forum to consider the claims,” Themis PLLC said.
The firm urged anyone entitled to the benefits it is seeking for contractors who worked for the BBG to go to the firm’s special BBG Litigation website and consider opting in to the litigation.
David Engelhard of Themis PLLC described the firm’s overall response to the government’s motion to dismiss the firm’s amended complaint:
THEMIS PLLC: “The BBG is asking the court to let the contracting officers sit in judgment of their own wrongdoing. They and their leadership knew that the law required them to appoint Plaintiffs and Class Members to federal service. They knew that the agency had the authority to make the appointments. They even calculated the cost of making the appointments. And then they decided to break the law, save the cost, and try to deprive the contractors of all of their statutory rights. Those rights include direct access to the federal courts. That is especially important when the contractors’ claims allege the government’s own fraud, such as the false statements that the BBG made in the bogus contracts for “non-personal” services. The contractors will never get justice from the agency that cheated them in the first place. That is why the Contract Disputes Act will not allow the agency to hear the claims. This case belongs in the federal court, and we are confident in our arguments for keeping it there.”
Many of Broadcasting Board of Governors’ full-time contract employees, especially those working at the Voice of America (VOA), perform the same critical government jobs as full-time federal employees with whom they share offices at 330 Independence Avenue, SW in Washington, DC. But unlike their full-time federal co-workers, VOA contract employees are underpaid, exploited, lack benefits and have no job protection. BBG’s contract employees also do not participate in Federal Employee Viewpoint Surveys (FEVS) conducted by the Office of Personnel Management (OPM) to measure job satisfaction and employee morale.
Their co-workers, BBG’s federal employees, rate the agency and its management extremely low in FEVS surveys. BBG contract employees do not even have this opportunity to share their concerns.
Broadcasting Board of Governors asked court to dismiss $400M contract employees’ class action suit, BBG Watch, May 1, 2016.
Law firm update on $400 million class action suit against BBG, BBG Watch, April 20, 2016.
Broadening of $400 million class action lawsuit against Broadcasting Board of Governors, BBG Watch, March 15, 2016
BBG Contract Employees $400M Class Action Complaint EXCLUSIVE, BBG Watch, January 8, 2016.
Themis PLLC offers update on $400M contractors class action lawsuit against BBG, BBG Watch, February 12, 2016.
Washington Post expanded column offers new details on Voice of America contracting scandal, BBG Watch, November 24, 2014.
Agency few Americans use generates controversy, this time with contractors, Joe Davidson, The Washington Post, November 24, 2014.
OIG Audit of the Broadcasting Board of Governors Administration and Oversight of Acquisition Functions
BBG Briefing Paper on Use of Contractors
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