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, * 

 * 

Plaintiffs, * 

 * 

v. * 

* 

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

Plaintiffs2 (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.

Motion For Class Certification,

RCFC 23;

Government Employees, 

 5 U.S.C. § 2105(a), 

 5 U.S.C. § 6301(2), 

 38 U.S.C. § 7454(b)(3). 

 
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 moneymandating. 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 optin 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 longstanding, 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.” 

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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.”)

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(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 

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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 

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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.

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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

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