Curry v. United States

81 Fed. Cl. 328, 13 Wage & Hour Cas.2d (BNA) 1278, 2008 U.S. Claims LEXIS 87, 2008 WL 868038
CourtUnited States Court of Federal Claims
DecidedMarch 27, 2008
DocketNo. 02-101C
StatusPublished
Cited by33 cases

This text of 81 Fed. Cl. 328 (Curry v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Curry v. United States, 81 Fed. Cl. 328, 13 Wage & Hour Cas.2d (BNA) 1278, 2008 U.S. Claims LEXIS 87, 2008 WL 868038 (uscfc 2008).

Opinion

MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

Before the Court is a motion to certify this matter as a class action. The plaintiffs are current and former employees of the United States Department of Veterans Affairs’ Veterans Health Administration (“VHA”). These employees, and the members of the class that they seek to certify, serve or served in health care positions for the VHA, received additional pay for working less-desirable shifts, and had their pay reduced while taking paid leave. See Curry v. United States, 66 Fed.Cl. 593, 594-97 (2005). The parties agreed to postpone the question of class certification until liability was adjudicated on summary judgment. Id. at 594. After the Court had completely resolved the liability issues, for the most part in the plaintiffs’ [330]*330favor, see id. at 603, 607-08, the parties filed additional briefs regarding the class certification motion, and oral argument on the motion was held. After carefully considering the parties’ arguments on class certification, for the reasons that follow the Court GRANTS plaintiffs’ motion for class certification. The Court also GRANTS plaintiffs’ subsequent motions which, taken together, request leave to add twelve additional named plaintiffs and to withdraw one named plaintiff.

I. BACKGROUND

In the prior opinion deciding the parties’ summary judgment motions, the Court found the government liable for underpaying certain employees of the VHA: (1) registered nurses (“RNs”); (2) “hybrids,” who are various health professionals including licensed vocational nurses (“LVNs”);1 and (3) physician assistants (“PAs”) and expanded function dental auxiliaries (“EFDAs”). Id. Each category of employee is entitled by statute or regulation to both additional pay2 and some form of authorized leave with pay,3 but plaintiffs argued that the additional pay they would have received for working their shifts was improperly omitted from their leave pay. See id. at 595. After reviewing the statutory scheme and the authority of the Secretary of Veterans Affairs to regulate employee compensation, and following the Federal Circuit’s holdings in Armitage v. United States, 991 F.2d 746, 751 (Fed.Cir.1993) and Lanehart v. Horner, 818 F.2d 1574, 1583 (Fed.Cir.1987), the Court determined the following: designated hybrids are entitled to additional pay when taking authorized paid leave at nighttime and are not limited by an eight-hour rule;4 hybrids who receive additional pay for weekend work are entitled to additional pay when taking authorized paid leave on weekends, except for shifts after September 30, 1997 any part of which fall on a Sunday;5 RNs, PAs, and EFDAs are entitled to additional pay when taking authorized paid leave from nighttime shifts, with no eight-hour rule applying to military or court leave; and RNs, PAs and EFDAs are entitled to additional pay when taking authorized paid leave on weekends, except for shifts after September 30, 1997 any part of which fall on a Sunday. Curry, 66 Fed.Cl. at 608. Pursuant to a joint stipulation submitted with the summary judgment papers,6 the government conceded that the VHA applies the eight-hour rule to the paid annual and sick leave from nighttime shifts taken by hybrids; that it has never paid RNs, PAs and EFDAs the weekend additional pay when annual or sick paid leave is taken; and that it stopped paying any weekend additional pay for any authorized paid leave taken by any of the employee categories after October 1997. See Ex. 1 to Supp.App. to Pis.’ Reply Mem. of Pts. & [331]*331Auth. in Supp. of Pis.’ Mot. for Part. Summ. J. (“Jt.Stip.”) ¶¶ 9-10,13.

Plaintiffs initially filed a motion for class certification at the time the amended complaint in this transferred case was filed with our court, and then filed an amended motion on May 21, 2002. The proposed opt-in class would consist of the VHA health care employees in the above-described categories, employed on or after September 5, 1994,7 who regularly worked shifts entitling them to additional pay but received reduced pay while on paid leave. Pis.’ Sec. Am. Mot. to Certify Class Action at 1-2.8 After defendant filed its opposition to the class certification motion, the Court granted plaintiffs’ unopposed motion to stay adjudication of the class certification motion until summary judgment motions were filed and decided. Order (Sept. 3, 2002). Once the Court ruled upon the summary judgment motions, defendant was given the opportunity to file and did file an amended opposition to the class certification motion. See Def.’s Am. Opp. to Pis.’ Mot. for Class Cert. (“Def.’s Opp.”). Plaintiffs filed a reply memorandum, with an appendix including, inter alia, the declaration of Barbara Jean Cain, a now-retired VHA employee, and declarations of plaintiffs’ counsel Ira M. Lechner and co-counsel Robert Brownlie. See Exs. 3-5 to App. to Pis.’ Reply.

Before filing their reply papers, plaintiffs also moved to add fourteen additional plaintiffs as potential class representatives. See Pis.’ Mot. for Leave to Add Add’l Pis. The government submitted an opposition to this motion out-of-time, to which plaintiffs replied.9 Oral argument was held on the two motions, which are granted for the reasons that follow.

II. DISCUSSION

A. Criteria for Certifying a Class Action

Rule 23 of the Rules of the United States Court of Federal Claims (“RCFC”), completely rewritten and reissued on May 1, 2002 (and subsequently amended in 2004), governs class actions. The rule’s immediate predecessor simply provided that “[t]he court shall determine in each case whether a class action may be maintained and under what terms and conditions.” Rule 23 of the United States Claims Court, 9 Cl.Ct. XXI, LI (eff. Nov. 1, 1985); see also Taylor v. United States, 41 Fed.Cl. 440, 444 (1998). Although the old rule did not contain any criteria for certifying and maintaining a class action, our court was guided by the Court of Claims precedent Quinault Allottee Association v. United States which, in the absence of a formal rule, borrowed some of the criteria then contained in Rule 23 of the Federal Rules of Civil Procedure (“FRCP”). 197 Ct. Cl. 134, 140-41, 453 F.2d 1272 (1972); see Taylor, 41 Fed.Cl. at 445. The current rule follows Quinault in borrowing, nearly verbatim, the criteria from FRCP 23, modified to reflect our court’s focus on awarding damages rather than issuing injunctive or declaratory relief and our court’s choice to restrict [332]*332class actions to those of the opt-in variety. See Rules Committee Notes to RCFC 23. Our rule provides:

(a) Prerequisites to a Class Action.

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Bluebook (online)
81 Fed. Cl. 328, 13 Wage & Hour Cas.2d (BNA) 1278, 2008 U.S. Claims LEXIS 87, 2008 WL 868038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curry-v-united-states-uscfc-2008.