Jones v. United States

126 Fed. Cl. 165, 2016 U.S. Claims LEXIS 277, 2016 WL 1371225
United States Court of Federal Claims·Decided April 1, 2016·No. No. 11-681C·Published·Cited by 2 cases

Opinion

5 U.S.C. §§ 5544(a) & 5546(a) — Sunday Premium Pay Statute; Rules of the United States Court of Federal Claims (“RCFC”), RCFC 23(a) Class Action, RCFC 23(b). Class Actions Maintainable, RCFC 23 (c) Class Certification Order.

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS’ MOTION TO AMEND CERTIFICATION OF CLASS ACTION

BRADEN, Judge.

This Memorandum Opinion And Order resolves Plaintiffs’ Motion To Amend Certification Of Class Action Including Points And Authorities In Support Thereof, pursuant to Rule 23 of the Rules of the United States Court of Federal Claims (“RCFC”). For the reasons discussed herein, Plaintiffs have failed, at this juncture, to establish, by a preponderance of the evidence, the requirements .of RCFC 23.

I. RELEVANT FACTS.1

Originally enacted as Section 405 of the Federal Salary and Fringe Benefits Act of 1966, the Sunday Premium Pay Statute ensures that certain federal employees receive additional compensation for work performed on Sundays. See Federal Salary and Fringe Benefits Act of 1966, Pub.L. No. 89-504, § 405(c), 80 Stat. 288, 297-98 (1966) (codified as amended at 5 U.S.C. § 5546(a)). The Premium Pay Statute applies to the majority of executive agency employees and to “prevailing rate” government employees.. See 5 U.S.C. §§ 5544(a),2 5546(a).3

On May 26, 2009, the United States Court of Appeals for the Federal Circuit held that “the word ‘employee,’ as used in Section 5546(a) of the Premium Pay Statute, clearly includes those who work part time.” See Fathauer v. United States, 566 F.3d 1352, 1354-57 (Fed.Cir.2009). In response to this decision, the Office of Personnel Management (“OPM”) issued Compensation Policy Memorandum (CPM) 2009-21 to inform government agencies of this decision and provide guidance to affected agencies as to how to process administrative claims by part-time employees who were denied Sunday premium pay. Amend. Compl. at 4. Specifically, [167]*167OPM instructed the agencies to compute Sunday premium pay and interest retroactively to May 26, 2009 — the date of the Fa-thauer decision — and distribute that pay to eligible part-time employees. Amend. Compl. at 4. To prove eligibility, part-time employees were required to file an administrative claim with the agency where they were employed. Amend. Compl. at 4. The administrative claim procedures placed the burden of proof on the employees to show, through documentation, that he or she was a part-time employee who qualified for Sunday premium pay, but had not received such compensation. Amend. Compl. at 8.

In accordance with OPM’s guidance, several agencies, including the United States Department of Veterans Affairs (the “VA”), the Department of Commerce, and the Department of Defense established internal administrative claims procedures to receive submissions from part-time employees entitled to back pay and interest. Mot. Am. Cert. Cl. at 7-10.

In 2011, OPM amended its regulations to reflect the Fathamr decision. See 76 Fed. Reg. 52, 537, 52, 538 (Aug. 23, 2011) (codified at 5 C.F.R. §§ 532.509, 550.103, and 550.171(a)).

II. PROCEDURAL HISTORY.

On October 14, 2011, Annette Jones, Norman Sampson, Roland Simmons, and Hazella Thornhill (hereinafter “Plaintiffs”) filed a Class Action Complaint in the United States Court of Federal Claims and a Motion To Certify Class, for themselves and others similarly situated, seeking Sunday Premium Pay and interest dating back to May 26, 2003. This case was assigned to Judge Francis M. Allegra. On November 2, 2011, the Government filed an Unopposed Motion, Out Of Time, For Enlargement Of Time To Respond To Plaintiffs’ Motion To Certify Class. On November 3, 2011, the court issued an Order staying Plaintiffs’ October 14, 2011 Motion To Certify Class, subject to further order. On December 5, 2011, the Government filed an Unopposed Motion For Enlargement Of Time To Respond To Plaintiffs’ Complaint. On December 7, 2011, the court granted-in-part and denied-in-part the Government’s December 5, 2011 Unopposed Motion For Enlargement Of Time, ordering the Government to file a Response oh, or before, February 10, 2012.

On December 27, 2011, Plaintiffs filed an Amended Complaint. On February 10, 2012, the Government filed an Answer.

On April 2, 2012, the parties filed a Joint Preliminary Status Report. On April 27, 2012, the court convened a preliminary status conference. On April 30, 2012, the court issued a Scheduling Order for the Government to file a partial Motion To Dismiss for lack of subject-matter jurisdiction on, or before, May 14, 2012, and staying discovery until further order.

On May 14, 2012, the Government filed a Motion To Partially Dismiss Plaintiffs’ Complaint. On June 14, 2012, Plaintiffs filed an Opposition. On June 15, 2012, Plaintiffs filed an Unopposed Motion For Leave To File Corrected Brief and attached the corrected brief thereto. On June 18, 2012, the court granted Plaintiffs’ June 15, 2012 Unopposed Motion For Leave. On July 2, 2012, the Government filed a Reply. On July 10, 2012, Plaintiffs filed a Motion For Leave To File Surreply, that the court denied on July 16, 2012.

On August 23, 2102, the Government filed a Status Report, notifying the court of the ruling in Gross v. United States, 106 Fed.Cl. 369 (2012), a civilian back pay case, that denied a Motion For Class Certification.

On January 2, 2013, the court directed the parties to file a memorandum responding to questions posed by the court regarding the parties’ briefing relating to the Government’s May 14, 2012 Partial Motion To Dismiss. On January 30, 2013, both parties submitted responsive memoranda.

On October 2, 2013, the court issued an Opinion finding that Plaintiffs’ claims for Sunday premium pay that accrued before October 14, 2005 were barred by the six-year statute of limitations set forth in 28 U.S.C. § 2501. See Jones v. United States, 113 Fed.Cl. 39, 43 (2013) (“Jones /”).

On November 20, 2013, the parties filed a Joint Status Report requesting that the court [168]*168lift the November 3, 2011 stay on Plaintiffs’ October 14, 2011 Motion To Certify Class. That same day, Plaintiffs filed a Renewed Motion To Certify Class. On November 21, 2013, the court entered an Order lifting the stay and scheduling briefing.

On December 20, 2013, Plaintiffs filed an Unopposed Motion For Leave To File A Corrected Copy Of Their Brief In Support Of Plaintiffs’ Motion For Class Certification. That same day, the Government filed an Unopposed Motion For An Enlargement Of Time To Respond.

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Jones v. United States, 126 Fed. Cl. 165, 2016 U.S. Claims LEXIS 277, 2016 WL 1371225 (uscfc 2016).

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