A former DynCorp employee urged the full Fifth Circuit to reconsider a panel’s decision to reject class action allegations that the company cheated him and others of overtime pay and benefits earned on a Kuwaiti logistics contract for the U.S. Army, arguing the provision to resolve disputes in Kuwait should be void.
The petition from Jonathan Barnett said the appeals panel’s original July decision wrongly held that the clause to adjudicate disputes in Kuwait should govern the case. According to his argument, the federal standards for forum non conveniens motions — which DynCorp won at the trial court — and Texas state law should prevent the agreement from having any effect.
“While the words requiring litigation in a Kuwaiti forum appear on the pages, the forum selection clause was never a term of the parties’ agreement. DynCorp cannot enforce this void provision any more than Barnett could, had DynCorp found Barnett was the party who breached the agreement,” Barnett’s petition said.
The panel’s July decision, however, held that Kuwait has a one-year statute of repose rather than a statute of limitations, and the Texas law Barnett cited in the case applies to statutes of limitations rather than statutes of repose. Barnett’s petition countered that the decision reads Texas law too narrowly and would overly restrict states’ power to limit forum selection clauses.
“Texas — the forum state, the state where the contract was formed, where Barnett began training and earning wages, where DynCorp began paying him wages under the agreement, and where DynCorp promised to honor its commitments after Barnett returned home — prohibits any party from contracting for a forum selection clause limiting the time to file suit on the agreement to ‘a period shorter than two years,’” the petition states.
According to the opinion, Barnett signed a one-year foreign-service employment agreement to work on DynCorp International LLC’s contract for the U.S. Army Logistics Civil Augmentation Program in Kuwait in 2011, extending his contract the following two years. Though Barnett’s base wages were based on U.S. dollars, the agreements used local labor laws to determine overtime and holiday pay as well as his work schedule, holiday calendar and medical leave benefits, according to the opinion.
In March 2013, shortly after issuing his employment agreement for the third year, DynCorp told Barnett in a letter that the company was shutting down services at the location and that it was terminating his employment, promising to pay due benefits and the balance of his wages.
Roughly two years later, Barnett filed a putative class action in Texas federal court alleging DynCorp breached the agreement by failing to provide him the overtime pay, paid leave, end-of-service payment and premature contract termination damages under Kuwaiti labor law, the opinion said. He also said the company stiffed him on “hardship compensation,” daily meals, housing and transportation.
In the complaint, Barnett claimed to have worked 72 hours per week during his two years in the country, logging hours on public holidays and days off. The combined claims of the putative class, which included all U.S. residents working on the contract for DynCorp, exceeded $5 million, the lawsuit alleged.
DynCorp successfully had the case dismissed on the basis that the case had to be litigated in Kuwait in accordance with the forum selection clause in his employment agreement. Barnett then appealed, and the panel affirmed last month.
