Demons v. United States , 119 Fed. Cl. 345 ( 2014 )

In the United States Court of Federal Claims
No. 13-779 C
Filed: December 15, 2014
*************************************
*
CILICIA A. DeMONS, et al., *
on behalf of herself and *
all others similarly situated, * Motion For Class Certification,
* RCFC 23;
Plaintiffs, * Government Employees,
* 5 U.S.C. § 2105(a),
v. * 5 U.S.C. § 6301(2),
* 38 U.S.C. § 7454(b)(3).
THE UNITED STATES, *
*
Defendant. *
*
*************************************
Ira M. Lechner, Law Office of Ira M. Lechner, Escondido, California, Counsel for Plaintiffs.
Hillary A. Stern, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for Defendant.
MEMORANDUM OPINION AND ORDER REGARDING CLASS CERTIFICATION
BRADEN, Judge.
This Memorandum Opinion And Order resolves Plaintiffs’ September 16, 2014 Motion
For Approval Of Class Certification, pursuant to Rule 23 of the Rules of the United States Court
of Federal Claims (“RCFC 23”).
I. RELEVANT FACTS. 1
Plaintiffs 2 (herein described as “Plaintiffs” or the “DeMons Plaintiffs”) are current or
former General Schedule (“GS”) employees of the United States Department of Veterans Affairs
(“VA”). Compl. ¶ 2. Employees covered by this proposed class action are “all civil service
employees . . . employed by the VA excluding only ‘[] a physician, dentist, or nurse in the
1
The relevant facts are derived from the January 29, 2010 Complaint in Adams v. United
States, No. 10-60 (“Adams Compl.”) and the October 8, 2013 Complaint (“Compl.”) in the
present case.
2
All references to “Plaintiffs” or “DeMons Plaintiffs” refer to the seven named plaintiffs
in Exhibit 1 of Plaintiffs’ October 8, 2013 Complaint.
Veterans Health Administration of the Department of Veterans Affairs.’” Compl. ¶ 18 (citing 5
U.S.C. § 6301(2)). These employees “were or are employed by the VA as [health care workers]
since July 1, 2012.” Compl. ¶ 9. Since July 1, 2012, Plaintiffs have received “additional pay,”
pursuant to 38 U.S.C. § 7454(b)(3), 3 in the amount of 25% of their regular hourly wages, for
work performed on Saturdays, but not Sundays. Compl. ¶ 14. Plaintiffs also have not received
“additional pay” when they have taken or used authorized and accrued “paid leave” 4 for similar
shifts, including Saturday hours, but not Sunday hours. Compl. ¶ 19. When using authorized
and accrued “paid leave” for such shifts, Plaintiffs have been compensated only for their regular
pay. Compl. ¶ 19.
II. PROCEDURAL HISTORY.
On January 29, 2010, Lisa Adams et al. (“Adams Class”) filed a Class Action Complaint
For Money Damages in the United States Court of Federal Claims alleging that they had been
wrongfully deprived of “additional pay” to which they were entitled, pursuant to 38
U.S.C. § 7454(b)(3). Adams Compl. ¶¶ 33–34. On the same date, the Adams Class also filed a
Motion For Class Certification, pursuant to RCFC 23, seeking certification of a class designating
Plaintiffs, as class representatives and individuals that meet the following requirements:
All General Schedule (“GS”) employees as defined by section 2105 of Title 5
who were not included in the class certified in [Curry v. United States, 81 Fed. Cl.
328 (2008)], and who were employed from January 1, 2004 or thereafter by the
Department of Veterans Affairs (“VA”) in the Veterans Health Administration
(“VHA”) as one of the following occupations:
(1) [specified positions] 5; and
(2) who regularly and customarily worked on a tour of duty any part of which was
within the period beginning midnight Friday and ending midnight Saturday6
(which did not include any Sunday hours); and
3
38 U.S.C. § 7454(b)(3) states:
Employees appointed under section 7408 of this title performing service on a
tour of duty, any part of which is within the period commencing at midnight
Friday and ending at midnight Sunday, shall receive additional pay in addition
to the rate of basic pay provided such employees for each hour of service on
such tour at a rate equal to 25 percent of such employee’s hourly rate of basic
pay.
38 U.S.C. § 7454(b)(3).
4
“Paid leave” accrues and is governed by the provisions and formulas referenced in 5
U.S.C. Chapter 63.
5
Representative positions include: Biological Science Technician, Rehabilitation
Therapy Assistant, Medical Technician, Environmental Health Aid and Technician, and Physical
Science Technician. Adams Compl. ¶ 19.
2
(3) who received premium pay of 25% or more pursuant to 38 U.S.C.
§ 7454(b)(3) for each such hour of service between midnight Friday and midnight
Saturday; and
(4) whose “pay” during periods of authorized paid leave pursuant to Chapter 63 of
Title 5 for any part of such tour of duty from midnight Friday to midnight
Saturday (which did not include any Sunday hours) was reduced in amounts equal
to the Saturday premium pay pursuant to 38 U.S.C. § 7454(b)(3) to which such
employees would have been paid had they performed their regular and customary
work on Saturdays instead of using authorized paid leave.
Adams Compl. ¶ 19.
On June 18, 2010, the court issued a Memorandum Opinion And Order certifying the
Adams Class. See Adams v. United States, 93 Fed. Cl. 563, 578 (2010) (defining the relevant
class as current or former VHA employees in specific occupations who customarily work on
Saturdays, but receive only basic pay when they elect to use authorized accrued “leave with
pay”). On August 11, 2010, the court issued an Order approving the Adams Class’s July 22,
2012 Proposed Class Action Notices.
On September 29, 2010, the Adams Class filed a Motion For Partial Summary Judgment
As To Liability. On November 22, 2010, the Government filed a Cross-Motion For Summary
Judgment. On June 30, 2011, the court granted the Adams Class’s Motion and denied the
Government’s Cross-Motion.
On October 11, 2012, the court approved the parties’ settlement that required the
Government to pay the Adams Class $4,929,882.00, plus attorney’s fees, non-taxable costs, and
administration expenses. On October 15, 2012, the court entered a final order for judgment.
On October 8, 2013, the Plaintiffs in this case (“DeMons Plaintiffs”) filed a Complaint in
the United States Court of Federal Claims seeking “recovery of back pay and interest on behalf
of the class of present and former employees of the VA who regularly and customarily received
Saturday premium pay in the form of ‘additional pay’ pursuant to section 7454(b)(3) since July
1, 2012.” Compl. ¶ 1. The DeMons Plaintiffs that were employed prior to July 1, 2012 also
were members of the certified class in Adams. In addition, the DeMons Complaint alleges the
same violations as the Adams Complaint. Compl. ¶ 1 (“[B]eginning July 1, 2012 and continuing
thereafter, [the Government] has failed again to include Saturday Premium Pay in the pay for
authorized and accrued annual leave, sick leave and other paid leave, of health care workers who
used such authorized paid leave instead of performing ‘a tour of duty’ on Saturdays.”). Thus, the
DeMons Complaint mirrors the essential allegations in Adams, with the difference being that
Adams covered violations only through July 1, 2012. The DeMons Plaintiffs seek the same relief
for the same violations that have occurred since July 1, 2012.
6
By “midnight Saturday,” the court assumes the Complaint means 12:00 a.m. Sunday.
3
On January 29, 2014, the Government filed its Answer.
On September 16, 2014, the DeMons Plaintiffs filed a Motion For Approval Of Class
Certification (“Pl. Mot.”). On October 2, 2014, the Government filed a Response (“Gov’t
Resp.”). On October 14, 2014, the DeMons Plaintiffs filed their Reply (“Pl. Reply”).
III. DISCUSSION.
A. Jurisdiction.
The Tucker Act provides that the United States Court of Federal Claims has jurisdiction
over “any claim against the United States founded either upon the Constitution, or any Act of
Congress or any regulation of an executive department, or upon any express or implied contract
with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”
28 U.S.C. § 1491(a)(1) (2006). The Tucker Act, however, does not, by itself, confer jurisdiction
on the court. United States v. Testan, 424 U.S. 392, 398 (1976) (“The Tucker Act, of course, is
itself only a jurisdictional statute; it does not create any substantive right enforceable against the
United States for money damages. The Court of Claims has recognized that the Act merely
confers jurisdiction upon it whenever the substantive right exists.”). Therefore, a plaintiff must
identify an independent basis by way of a contract, federal statute, regulation, or the Constitution
upon which it is entitled to monetary payment from the federal government. United
States v. Mitchell, 463 U.S. 206, 216–17 (1983) (“The claim must be one for money damages
against the United States and the claimant must demonstrate that the source of substantive law he
relies upon can fairly be interpreted as mandating compensation by the Federal Government for
the damage sustained.”) (internal citations omitted); Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005) (“[I]n order to come within the jurisdictional reach and the waiver of the Tucker
Act, a plaintiff must identify a separate source of substantive law that creates the right to money
damages. In the parlance of Tucker Act cases, that source must be money-mandating.”) (internal
citations and quotations omitted).
In determining whether the United States Court of Federal Claims has jurisdiction over a
claim, the trial court has been instructed that “at the outset [the court] shall
determine . . . whether the Constitutional provision, statute, or regulation is one that is money-
mandating. If the court’s conclusion is that the Constitutional provision, statute, or regulation
meets the money-mandating test, the court shall declare it has jurisdiction over the cause, and
shall then proceed with the case in the normal course.” Fisher, 402 F.3d at 1173.
In this case, the October 8, 2013 Complaint alleges that Plaintiffs and those similarly
situated, have been wrongfully deprived of additional pay when taking authorized paid leave for
shifts, including Saturday, but not Sunday hours, in violation of 38 U.S.C. § 7454(b)(3). Compl.
¶¶ 4–5. As such, the October 8, 2013 Complaint properly identified and pled an independent
right to money damages to satisfy the court’s jurisdictional requirements. In the March 24, 2014
Joint Preliminary Status Report, the Government advised the court that it “currently has no basis
upon which to question [the court’s] jurisdiction.” 3/24/14 JPSR at 1.
4
B. Standard Of Review On A Motion For Class Certification.
“The class action is ‘an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432
(2013) (quoting Califano v. Yamasaki, 422 U.S. 682, 700–01 (1979)). Class actions in the
United States Court of Federal Claims are governed by RCFC 23 that provides:
(a) Prerequisites. One or more members of a class may sue as representative
parties on behalf of all members only if: (1) the class is so numerous that joinder
of all members is impracticable; (2) there are questions of law or fact common to
the class; (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative parties will fairly and
adequately protect the interests of the class.
(b) Class Actions Maintainable. A class action may be maintained if RCFC 23(a)
is satisfied and if . . . (2) the United States has acted or refused to act on grounds
generally applicable to the class; and (3) the court finds that the questions of law
or fact common to class members predominate over any questions affecting only
individual members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy. The matters pertinent to
these findings include: (A) the class members’ interests in individually controlling
the prosecution of separate actions; (B) the extent and nature of any litigation
concerning the controversy already begun by class members; . . . and (D) the
likely difficulties in managing a class action.
RCFC 23(a), (b).
RCFC 23 is modeled after Federal Rule of Civil Procedure (“FRCP”) 23. RCFC 23,
United States Court of Federal Claims Rules Committee (“Rules Committee”) Notes (2002
Revision). 7 The United States Court of Federal Claims, however, has held that RCFC 23 differs
from FRCP 23 in two important respects: “(1) [RCFC 23] has been modified to reflect the court's
jurisdiction, in particular, the narrow circumstances in which the court will afford declaratory or
injunctive relief, and (2) it allows only ‘opt-in,’ but not ‘opt-out,’ class actions.” King v. United
States, 84 Fed. Cl. 120, 122 n.2 (2008); see also Bright v. United States, 603 F.3d 1273, 1284
(Fed. Cir. 2010) (referencing the “opt-in procedure of RCFC 23”). 8 Accordingly, “unidentified
7
Accordingly, the United States Court of Federal Claims has relied on other federal court
decisions to construe RCFC 23. See Haggart v. United States, 89 Fed. Cl. 523, 529 (2009)
(“[C]ases applying [FRCP 23] have been examined and followed in interpreting RCFC 23.”); see
also Barnes v. United States, 68 Fed. Cl. 492, 494 n.1 (2005) (“Owing to the fact that the
language of RCFC 23 and [FRCP] 23 is, in many regards, identical, this opinion relies upon
numerous decisions that have construed the relevant portions of the latter rule.”).
8
According to the United States Court of Federal Claims, an opt-in class action “allows
each of the unnamed members of the class the opportunity to appear and include themselves in
the suit if each is willing to assume the risks of the suit. This approach resembles permissive
5
claimants are not bound if the case should be ruled in the defendant's favor.” 9 Buchan v. United
States, 27 Fed. Cl. 222, 223 (1992).
The criteria set forth in RCFC 23(a) and (b) “can be grouped into five categories:
(i) numerosity—a class so large that joinder is impracticable; (ii) commonality—in terms of the
presence of common questions of law or fact, the predominance of those questions, and the
treatment received by the class members at the hands of the United States; (iii) typicality—that
the named parties’ claims are [typical] of the class; (iv) adequacy—relating to fair
representation; and (v) superiority—that a class action is the fairest and most efficient way to
resolve a given set of controversies.” Barnes, 68 Fed. Cl. at 494 (bolded in original) (citing Gen.
Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982) (regarding Fed R. Civ. P. 23(a), (b))). Since
these requirements are in the conjunctive, failure to satisfy any one “is fatal to a motion for class
certification.” Testwuide v. United States, 56 Fed. Cl. 755, 761 (2003).
For this reason, “the party moving for class certification bears the burden of establishing,
by a preponderance of the evidence, the requirements set forth in RCFC 23.”
Rasmuson v. United States, 91 Fed. Cl. 204, 210 (2010); see also Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 177–78 (1974) (holding that the relevant inquiry on a motion for class certification
is not “whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the
merits, but rather whether the requirements of the class action rule are met”). Bare allegations do
not satisfy a plaintiff’s burden under RCFC 23.
Therefore, in this case, the court is required to conduct an analysis to determine if the
prerequisites of RCFC 23 have been satisfied by a preponderance of the evidence. See Falcon,
457 U.S. at 161 (holding that class actions “may only be certified if the trial court is satisfied,
after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied”). This analysis
requires the court to “make the factual and legal inquiries necessary to ensure that class
certification is appropriate.” Christopher Vill. v. United States, 50 Fed. Cl. 635, 642 (2001).
C. Plaintiffs’ September 16, 2014 Motion For Class Certification.
1. Plaintiffs’ Argument.
Plaintiffs argue that the court granted class certification in Adams v. United States, 93
Fed. Cl. 563 (2010) to the same putative class that is the subject of the litigation. Pl. Mot. at 2.
Here, the putative class “is, or has been, employed since July 1, 2012 in precisely the same VHA
health care occupations which are identified in Adams.” Pl. Mot. at 2. “[S]ince July 1, 2012, the
VA has not paid these employees the same 25% Saturday premium pay when they used accrued
and authorized paid leave on Saturdays as when they were paid for working their customary and
regular scheduled Saturday shifts.” Pl. Mot. at 2–3. Further, both the proposed Summary
joinder in that it requires affirmative action on the part of every potential plaintiff.”
Buchan v. United States, 27 Fed. Cl. 222, 223 (1992).
9
In contrast, in an opt-out class, “members may choose to exclude themselves if they do
not want to be bound by the decision or settlements reached in the case.” BLACK’S LAW
DICTIONARY 284 (9th ed. 2009).
6
Postcard Class Notice and Official Court Notice are “precisely the same” as the ones approved in
Adams. Pl. Mot. at 3. Both notices also contain website information and a phone number for
VA employees to file their claims. Pl. Mot. at 3.
Therefore, Plaintiffs assert that “there is no legitimate defense to the prompt certification
of the class in this case. Simply stated, there are no disputed facts and no bar to the same class
certification as in Adams.” Pl. Mot. at 5. Plaintiffs also ask the court to order the Government
“to produce the names and last known home addresses of all putative class members to the
appointed Class Action Administrator within two weeks of the court’s approval of class
certification inasmuch as the VA knows, or already is in the process of identifying who is owed
back pay.” Pl. Mot. at 5.
2. The Government’s Response.
The Government responds that the history of class certification cases in the United States
Court of Federal Claims includes a “substantial discussion about whether class actions are
disfavored.” Gov’t Resp. at 6. Both the history of RCFC 23 and subsequent case law “establish
that the application of the rule should be reserved for extraordinary cases and that its use
generally is disfavored.” Gov’t Resp. at 7 (citing O’Hanlon v. United States, 7 Cl. Ct. 204, 206
(1985)). Specifically, the United States Court of Federal Claims traditionally disfavors using
class actions to litigate the rights of Government employees. See Armitage v. United States, 18
Cl. Ct. 310, 315 (1989) (“[T]he Court of Claims taught that the test case, brought by one of a few
plaintiffs, has been the traditional method of litigating the rights of Government employees in
this Court.”) (internal quotation marks and citation omitted); see also Kominers v. United States,
3 Cl. Ct. 684, 685 (1983) (holding that, in civilian pay cases, “class certification should receive
skeptical consideration”).
As to RCFC 23(a)(1), the Government concedes that the proposed class is numerous, but
calls it “unmanageable.” Gov’t Resp. at 10. The “vague and overly broad [class] definition”
makes it too difficult to identify proposed class members. Gov’t Resp. at 10. Moreover, there
are 156 geographically dispersed facilities nationwide that might employ potential class
members. Gov’t Resp. at 10.
Therefore, under RCFC 23(a)(2), “[P]laintiffs’ proposed class neither presents any
common questions of law or fact nor do any common questions predominate.” Gov’t Resp. at 4.
The Government distinguishes this case from Adams, stating:
In Adams, the [c]ourt was required to resolve a common legal issue involving the
proper interpretation of the statute upon which [P]laintiffs based their claim.
Because the [c]ourt made that determination in Adams, no common issues remain
for the Court to decide in this case; all issues as to both liability and damages
require individual proofs.
Gov’t Resp. at 4.
7
As such, Certifying this class would result in the court “fac[ing] either thousands of
different presentations of proof concerning whether each individual class member was properly
paid for leave, or alternatively, the class members [being] precluded from raising individual
arguments.” Gov’t Resp. at 13. The United States Court of Federal Claims requires each
plaintiff “to provide sufficient bases for determining the damages sought.” Gov’t Resp. at 14
(citing Willems Indus., Inc. v. United States, 155 Ct. Cl. 360, 376 (1961) (“The claimant bears
the burden of proving . . . the amount of loss with sufficient certainty so that the determination of
the amount of damages will be more than mere speculation.”). The Government claims that each
individual plaintiff would have to prove that he or she “was regularly scheduled to work on
Saturdays,” his or her work status for each holiday, and how much leave was actually taken.
Gov’t Resp. at 14.
Regarding RCFC 23(a)(3), the Government also asserts that the named Plaintiffs’ claims
are not typical of the potential class’s claims. Gov’t Resp. at 15. “Each of the positions that
[P]laintiffs propose to include in their proposed class necessarily requires the performance of
different duties and functions than another position and, therefore, by definition, cannot be
typical.” Gov’t Resp. at 15. Individual determinations of leave taken and hours worked defeats
typicality. Cooke v. United States, 1 Cl. Ct. 695, 699 (1983) (“[T]he existence of common legal
issues should be given little weight in comparison to factual issues. . . . [T]he facts remaining in
dispute[] are likely to be dissimilar since they concern status and damage questions particular to
each claimant.”); Christian v. United States, 46 Fed. Cl. 793, 816 (2000) (“Plaintiff’s claim turns
on his particular circumstances—his career field, skill, and, notably, his military record.”).
Moreover, the 156 different facilities may have different policies and practices. Gov’t Resp. at
15–16.
As to RCFC 23(a)(4), the Government doubts the named Plaintiffs’ ability to fairly and
adequately protect the interest of the class. Gov’t Resp. at 16. Only seven individuals are named
Plaintiffs, and they work at only three of the 156 potential facilities. Gov’t Resp. at 16. “There
is no basis for [P]laintiffs’ assumption that other potential class members have a desire to join in
the filing of this suit at this time,” because they might want to file their own suits later or join
this suit as named Plaintiffs under RCFC 20(a). Gov’t Resp. at 16. “[S]even [P]laintiffs seek to
prosecute the claims of an unnamed group purportedly in excess of 1,000 individuals in a vast
variety of job positions located at numerous different facilities. Plaintiffs have failed to make
any showing that they can fairly and adequately represent the interests of the vast and dissimilar
class they seek to represent.” Gov’t Resp. at 17.
The Government adds that “[b]ecause each employee, individually, would be required to
establish entitlement to unpaid Saturday pay for leave or holiday time, a class action is not a
superior case management tool” under RCFC 23(b). Gov’t Resp. at 18. 10
Finally, the Government argues that if the court certifies the class, “[P]laintiffs’ proposed
Order, Official Notice, Postcard Notice, and Joint Stipulated Protective Order suffer from certain
defects.” Gov’t Resp. at 18. The proposed Order fails to specify the relevant statutes; the
10
The Government, however, does not provide a single citation to support this argument.
See Gov’t Resp. at 18.
8
Official Notice misstates the Government’s legal position and relevant law; and the Joint
Stipulated Protective Order is erroneously captioned. Gov’t Resp. at 18–19.
3. Plaintiffs’ Reply.
Plaintiffs reply that they satisfy RCFC 23(a)(2)’s commonality requirement, as they can
establish the common question of fact—whether the Government “has failed to pay a large class
of employees Saturday premium pay when they used paid leave”—by algorithmic computer
analysis. Pl. Reply at 2. Similarly, they can use computer analysis to determine how much back
pay is owed to each opt-in Plaintiff. Pl. Reply at 2–3. Plaintiffs dispute the Government’s
argument that because it concedes liability, there are no common questions for the court to
decide. Pl. Reply at 3–4. The Government’s “opposition in Adams, however, was virtually
identical, word for word and page for page, to its argument in DeMons.” Pl. Reply at 4.
Plaintiffs also contend that the class in this case would be manageable, because the
Adams administrator already has issued more than 8,000 checks to more than 10,000 eligible opt-
in claimants. Pl. Reply at 4.
As to the class notices, the court approved precisely the same notices in Adams. And, the
Adams notices were successful, because 10,436 claim forms were filed, mostly online. Pl. Reply
at 4. Plaintiffs also addressed typographical errors in the Official Notice. 11
D. The Court’s Resolution.
As a threshold matter, class actions are not “disfavored” in the United States Court of
Federal Claims. See Filosa, 70 Fed. Cl. at 611 (“[C]lass actions are not disfavored by the United
States Court of Federal Claims.”). Although some language to that effect appeared in O’Hanlon,
7 Cl. Ct. at 206, it was “premised merely on the fact that class actions were not frequently
certified in this court.” Taylor v. United States, 41 Fed. Cl. 440, 444 (1998). Moreover, even
“[i]f the proposition that class actions are ‘disfavored’ ever was valid, it certainly is no longer so
now.” Barnes, 68 Fed. Cl. at 502.
For the reasons discussed herein, the court has determined that Plaintiffs have satisfied all
of the RCFC 23 requirements for class action certification.
1. The Proposed Class Satisfies The “Numerosity Requirement.”
11
Plaintiffs attached a revised Official Notice to their Reply that: deleted Series 0621,
Nursing Assistant, due to change in law; updated the Administrator’s mailing address, phone
number, and website; deleted the paragraph that stated the Government did not believe the class
is entitled to Saturday premium pay when they use authorized leave; but retained the paragraph
in the “Basic Information” section that “states Plaintiffs’ argument with respect to the
entitlement to the same premium pay when an employee uses paid leave as when he or she works
the same regularly scheduled Saturday shift.” Pl. Reply at 5. Plaintiffs also corrected the
caption in the Joint Protective Order. Pl. Reply at 6.
9
RCFC 23(a)(1) requires a proposed class be so numerous that joinder of all members is
impracticable. RCFC 23(a)(1). Here, Plaintiffs have alleged a potential class in excess of 1,000
members, a figure not challenged by the Government. Compl. ¶ 20; see also Gov’t Opp. at 10
(conceding that “the proposed class may be numerous”). This is sufficient to satisfy the
numerosity requirement. See King, 84 Fed. Cl. at 124 (holding that 152 putative class members
satisfied the numerosity prong); see also Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570
(6th Cir. 2004) (“[The] sheer number of potential litigants in a class, especially if it is more than
several hundred, can be the only factor needed to satisfy Rule 23(a)(1).”).
For these reasons, the court has determined that RCFC 23’s “numerosity requirement”
has been satisfied.
2. The Proposed Class Satisfies The “Commonality Requirement.”
The “commonality requirement” entails three inquiries: (1) whether there are “questions
of law or fact common to the class”; (2) whether the “United States has acted or refused to act on
grounds generally applicable to the class”; and (3) whether those common questions
“predominate over any questions affecting only individual members.” RCFC 23(a)(2), (b)(2),
(b)(3).
a. A Question Of Law Or Fact Common To The Class Exists.
RCFC 23(a)(2) requires that there be “questions of law or fact common to the class.”
RCFC 23(a)(2). The threshold of commonality is met, “when there is at least one issue whose
resolution will affect all or a significant number of the putative class members.” Fisher, 69 Fed.
Cl. at 200. This threshold, however, is “not high.” Jenkins v. Raymark Indus., 782 F.2d 468,
472 (5th Cir. 1986). In this case, unlike in Adams, the Government concedes that the potential
class members are entitled to overtime pay. Gov’t Resp. at 13 (“That legal question has now
been resolved.”). But, the resolution of the legal question in Adams does not negate
commonality in DeMons.
This case analogous to Curry v. United States, 81 Fed. Cl. 328 (2008) that dealt with
similar overtime pay issues. In that case, just as in this one, “the [G]overnment argue[d] that
because the Court ha[d] already resolved the liability issues in this case, there [were] no common
issues remaining for the Court to decide.” Id. at 333 (internal quotation marks omitted).
Nevertheless, the Curry court held:
[I]n deciding whether common questions predominate over individual questions
for purposes of class certification, it does not matter whether the common
questions have already been summarily adjudicated. If the rule were otherwise,
in the future no plaintiffs would ever agree to postpone the determination of a
class certification motion until after a motion for partial summary judgment were
decided, due to the [Government’s] ‘heads I win, tails you lose’ result. . . . The
Court concludes that common questions remain, and are not reduced in stature,
after they have been ruled upon via summary judgment.
10
Id. at 334.
In the court’s judgment, the legal issue in this case was resolved by an Order Granting
Plaintiff’s Motion For Partial Summary Judgment. See Adams, Case No. 10-60, Docket No. 41,
at 12 (June 30, 2011) (“[T]he court has determined that sections 7454(b)(3) and 7453(c) of title
38 authorize Class Plaintiffs to receive ‘premium pay’ while working, and do not prohibit VHA
employees who elect to use authorized accrued ‘leave with pay’ on Saturdays from being
compensated ‘premium pay’ for that time.”). As the court noted in Adams, “[t]he Government’s
arguments in this case previously were considered and rejected by the Curry court.” Adams,
Case No. 10-60, Docket No. 41, at 13. Although neither Curry nor Adams is precedential, both
are persuasive. In this case, as the court previously has observed, the summary adjudication of a
common legal issue should not defeat class certification when that issue binds over a thousand
plaintiffs seeking redress for a common grievance. See Barnes, 68 Fed. Cl. at 496–97 (finding
commonality when the “lawsuit challenges a system-wide practice or policy that affects all of the
putative class members” and noting that “case law suggests that a defendant may not thwart class
certification by making tactical concessions designed to pare down the list of common issues
held by the putative class members”) (internal quotation marks and citations omitted).
For these reasons, the court has determined that there is a common question of law
applicable to the class.
b. The Common Question Predominates Over Questions
Affecting Individual Members.
RCFC 23(b)(3) requires that “questions of law or fact common to class members
predominate over any questions affecting only individual members.” RCFC 23(b)(3). In this
case, the common question is whether each putative class member has been affected by the same
Government policy. Therefore, individual damages can be decided using computerized pay
records. Although the Government has argued that the determination of damages will have to be
established on an individual basis (Gov’t Opp. at 14), Plaintiffs have satisfied the court that such
determinations can be made using a centralized, computerized system under the Government’s
control. Pls. Reply at 2–3. Moreover, despite the Government’s arguments to the contrary,
“[t]he mere fact that damage awards will ultimately require individualized fact determinations is
insufficient, by itself to defeat a class action.” Curry, 81 Fed. Cl. at 334 (“[W]here the
government’s alleged failure to comply with the Federal pay statutes is systematic and long-
standing, that issue plainly is more substantial than—and thus predominates over—the relatively
straightforward calculation issues associated with determining the hours and amounts of
premium pay to which each putative class member may be entitled.”) (internal citations
omitted).
In addition, the Government’s reliance on Gaffney v. United States, 834 F. Supp. 1
(D.D.C. 1993) is misplaced. Gov’t Opp. at 12–13. That case declined to certify a class under
FRCP 23(b)(3)—a rule similar to RCFC 23(b)(3). The Gaffney court determined that “common
questions do not ‘predominate in this case. Rather, there is only a single common question: the
[G]overnment’s liability for Sunday premium pay on days when employees take paid leave.
That issue, moreover, has been resolved in . . . the Court of Appeals for the Federal Circuit.”
11
Gaffney, 834 F. Supp. at 6. The Gaffney court also expressed concerns about notifying the class
proposed and managing the opt-out procedures. Id.
In more recent cases, the United States Court of Federal Claims has declined to follow
Gaffney. In 2005, Barnes certified a class even though “the [Government] agrees that employees
covered by the statutes cited by plaintiffs should receive premium pay in the general
circumstances alleged.” 68 Fed. Cl. at 497. Then, in Curry a class was certified, even though
the question of liability had already been summarily adjudicated. See 81 Fed. Cl. at 334.
Moreover, RCFC 23 allows only opt-in actions; therefore, Gaffney’s concerns about managing
opt-out procedures are not present here. See King, 84 Fed. Cl. at 122 n.2; see also Bright, 603
F.3d at 1284.
For these reasons, the court has determined that the common question predominates over
questions affecting individual members.
c. The United States Has Acted On Grounds Generally
Applicable To The Class.
A class action also may only be maintained where “the United States has acted or refused
to act on grounds generally applicable to the class.” RCFC 23(b)(2). In this case, Plaintiffs
allege a systematic government policy of withholding additional premium pay from an entire
class of individuals who have taken paid leave for Saturday shifts that would ordinarily entitle
them to 25% premium pay. Pl. Mot. at 2–3. Given that the common question involves a
systematic government policy, Plaintiffs have satisfied the court that the United States has acted
on grounds generally applicable to the class.
For these reasons, the court has determined that RCFC 23’s “commonality requirement”
has been satisfied.
3. The Proposed Class Satisfies The “Typicality Requirement.”
In addition, RCFC 23(a)(3) requires that “the claims or defenses of the representative
parties [be] typical of the claims or defenses of the class.” RCFC 23(a)(3). The threshold for
typicality also is “not high.” Fisher, 69 Fed. Cl. at 200 (“[E]ven if some factual differences exist
between the claims of the named representatives and the claims of the class, [the typicality
requirement may be satisfied] provided that the named representatives’ claims share the same
essential characteristics as the claims of the class at large.”). Here, the “essential characteristic”
of Plaintiffs’ claim is that the Government is liable for Saturday additional pay when specified
employees use paid leave. Compl. ¶ 1. This claim, as well as the Government’s potential
defenses, is characteristic both of the class representatives and all potential class members. In
fact, as Plaintiffs point out, the Government’s October 2, 2014 Opposition is “virtually identical,
word for word and page for page,” as its March 17, 2010 Opposition in Adams. Pl. Reply at 4.
Other factual differences, such as different job duties, different leave schedules, and different
places of employment, are “inconsequential.” Barnes, 68 Fed. Cl. at 498–99 (“[I]t is assumed
that individual questions peculiar to individual class members, but overweighed by the common
questions, will or may remain after the common questions have been finally determined.”)
12
(internal quotation marks and citation omitted); see also Curry, 81 Fed. Cl. at 335–36 (holding
that the common question of the Government’s liability regarding back pay satisfied the
typicality requirement, despite the geographical distribution of class members, different job
descriptions and leave schedules, and different employment facilities).
For these reasons, the court has determined that the proposed class satisfies the
“typicality requirement” of RCFC 23(a)(3).
4. The Proposed Class Satisfies The “Adequacy Requirement.”
RCFC 23(a)(4) requires that “the representative parties will fairly and adequately protect
the interests of the class.” RCFC 23(a)(4). The “adequacy requirement” has two components.
First, class counsel must be “qualified, experienced and generally able to conduct the litigation.”
In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992) (internal quotation
marks omitted). Second, “the class members must not have interests that are ‘antagonistic’ to
one another.” Id.
The Government does not challenge the fact that Plaintiffs’ proposed class counsel, Mr.
Ira M. Lechner, is qualified to conduct the litigation. The Government, however, does contest
whether Plaintiffs can adequately represent the interests of the proposed class. Gov’t Opp. at
16–17. The Government suggests that prospective members may not wish to opt-in to the class,
and implies that Plaintiffs’ interests might diverge from those of the class, given their varied job
duties and locations. Gov’t Opp. at 16–17. Nevertheless, the Government has not proffered any
evidence to this effect. Therefore, the court sees no reason to doubt that Plaintiffs’ interests do
not conflict with the class. See Curry, 81 Fed. Cl. at 337 (“[The Government] speculates that
prospective members may not wish to opt into the class, and implies that plaintiffs cannot
represent employees of more than 300 different facilities of at least half a dozen different types.
But plaintiffs have alleged that they do not have interests antagonistic to, or in conflict with, the
class, and defendant has not identified any reason to believe this is not the case.”) (internal
quotation marks and citations omitted).
The Government also argues that public policy and “the principle of limitations upon
representative claims” weigh against class certification with so many unnamed and potentially
uninterested individuals. Gov’t Opp. at 16–17. The opt-in requirements of RCFC 23, however,
mitigate these concerns by forcing potential class members affirmatively to join the class and
thereby demonstrate at least minimal knowledge of and interest in the litigation. See Buchan, 27
Fed. Cl. at 223 (noting that the opt-in “approach resembles permissive joinder in that it requires
affirmative action on the part of every potential plaintiff”).
For these reasons, the court has determined that the “adequacy requirement” of RCFC
23(a)(4) has been satisfied.
5. The Proposed Class Satisfies The “Superiority Requirement.”
RCFC 23(b)(3) states “that a class action [must be] superior to other available methods
for fairly and efficiently adjudicating the controversy.” RCFC 23(b)(3). This requirement
13
encompasses the advantage to prospective class members of litigating their own claims, the risk
of inconsistent adjudications should multiple actions be pursued, and the court's conceivable
difficulties in managing the class action. Fauvergue v. United States, 86 Fed. Cl. 82, 101 (2009),
rev’d on other grounds by Bright, 603 F.3d 1273 (Fed. Cir. 2010); see also Quinault Allottee
Ass’n & Individual Allottees v. United States, 197 Ct. Cl. 134, 140 (1972) (considering whether
the “claims of many allottees are so small that it is doubtful that they would be pursued other
than through this case”). The “superiority requirement” is met when “a class action would
achieve economics of time, effort, and expenses, and promote uniformity . . . without sacrificing
procedural fairness or bringing about other undesirable results.” FRCP 23, Advisory Committee
Notes (1966).
In this case, there are over 1,000 potential individual claims that share the common issue
of being owed backpay under 38 U.S.C. § 7454(b)(3). Compl. ¶ 20. The Government argues
that “[c]ertifying the proposed class would inundate this Court with a thousand claims.” Gov’t
Opp. at 18. But, certification of the proposed class will allow for consolidation of these claims,
thereby reducing the time and expense of litigation, ensuring a consistent decision regarding the
Government’s liability and enabling class members with smaller damages to assert their claims.
These are the very interests that RCFC 23 was created to protect. See FRCP 23, Advisory
Committee Notes (1966) (“Subdivision (b)(3) encompasses those cases in which a class action
would achieve economies of time, effort, and expense, and promote uniformity of decision as to
persons similarly situated, without sacrificing procedural fairness or bringing about other
undesirable results.”); see also Filosa, 70 Fed. Cl. at 622 (given similarly situated class
members, “there is little benefit to having each proposed class member retain counsel, pay filing
fees, and submit duplicative pleadings”). Moreover, Plaintiffs report that “the VA has begun
calculating individual back pay damages at each facility.” Pl. Reply at 1. Therefore, there is no
reason to think that post-2012 damages calculations will be an insurmountable burden.
Moreover, the proposed class is manageable, because individual damage calculations can
be ascertained—the Government can mechanically identify and notify potential class members,
as well as calculate their individual damages. See Curry, 81 Fed. Cl. at 338 (“The Court does not
find identifying or notifying potential class members to be particularly daunting, given the
records at the government’s disposal.”).
Given that class certification will serve the interest of judicial economy, and the fact that
the proposed class is manageable, the court has determined that the “superiority requirement” has
been satisfied.
IV. CONCLUSION.
For the foregoing reasons, the court hereby grants Plaintiffs’ September 16, 2014 Motion
For Class Certification, and appoints Mr. Ira M. Lechner as Class Counsel. The opt-in class shall
consist of persons who meet the following requirements:
All General Schedule employees as defined by section 2105 of Title 5 who were
not included in the class certified in Curry v. United States, 81 Fed. Cl. 328
(2008), and who were employed from July 1, 2012 or thereafter by the
14
Department of Veterans Affairs in the Veterans Health Administration as one of
the following occupations:
(1) Series 0060, Chaplain; Series 0101, Social Science; Series 0102, Social
Science Aid and Technician; Series 0181, Psychology Aid and Technician; Series
0184, Sociology; Series 0186, Social Services Aid and Assistant; Series 0187,
Social Services; Series 0188, Recreation Specialist; Series 0189, Recreation Aid
and Assistant; Series 0334, Computer Specialist (DHCP Operations Only); Series
0401, General Biological Science; Series 0403, Microbiology; Series 0404,
Biological Science Technician; Series 0405, Pharmacology; Series 0413,
Physiology; Series 0415, Toxicology; Series 0601, General Health Science; Series
0621, Nursing Assistant; Series 0622, Medical Supply Aid and Technician; Series
0625, Autopsy Assistant; Series 0636, Rehabilitation Therapy Assistant; Series
0637, Manual Arts Therapist; Series 0638, Recreation/Creative Arts Therapist;
Series 0639, Education Therapist; Series 0640, Health Aid and Technician; Series
0645, Medical Technician; Series 0646, Pathology Technician; Series 0664,
Restoration Technician; Series 0670, Health System Administration; Series 0671,
Health System Specialist; Series 0673, Hospital Housekeeping Management;
Series 0679, Medical Support Assistant; Series 0683, Dental Laboratory Aid and
Technician; Series 0690, Industrial Hygienist; Series 0698, Environmental Health
Aid and Technician; Series 0699, Student Nurse Technician (Title code 63 only);
Series 0701, Veterinary Medical Science; Series 0704, Animal Health Technician;
Series 1020, Medical Illustrator; Series 1060, Photographer (Medical); Series
1301, General Physical Science; Series 1306, Health Physics; Series 1310,
Physics; Series 1311, Physical Science Technician; Series 1320, Chemistry;
Series 1725, Public Health Educator; Series 1910, Quality Assurance; Series
2210, Computer Specialist (DHCP Operations Only); and
(2) who regularly and customarily worked on a tour of duty any part of which was
within the period beginning midnight Friday and ending midnight Saturday
(which did not include any Sunday hours); and
(3) who received premium pay of 25% or more pursuant to 38 U.S.C.
§ 7454(b)(3) for each such hour of service between midnight Friday and midnight
Saturday; and
(4) whose “pay” during periods of authorized paid leave pursuant to Chapter 63 of
Title 5 for any part of such tour of duty from midnight Friday to midnight
Saturday (which did not include any Sunday hours) was reduced in amounts equal
to the Saturday premium pay pursuant to 38 U.S.C. § 7454(b)(3) to which such
employees would have been paid had they performed their regular and customary
work on Saturdays instead of using authorized paid leave.
On or before January 31, 2015, the parties will file a joint status report indicating how
this case should proceed.
15
Pursuant to RCFC 10(a), all subsequent pleadings in this case shall use the caption listed
above.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge
16