Adams v. United States

• Decision Date: 30 June 2011
• Docket Number: No. 10-60C,10-60C
• Parties: LISA ADAMS, et al., on behalf of herself and all others similarly situated, Plaintiffs, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

LISA ADAMS, et al., on behalf of herself and all others similarly situated, Plaintiffs,

v.THE UNITED STATES, Defendant.

No. 10-60C

United States Court of Federal Claims

Filed: June 30, 2011

TO BE PUBLISHED

Civilian Pay; Caregivers and Veterans Omnibus Health Services Act of 2010, Pub. L. No. 111-163, 124 Stat. 1130; Cross-Motions For Summary Judgment, RCFC 56;

Frivolous Arguments, RCFC 11(b)(2); Pay with Leave, 5 U.S.C. §§ 6303 (annual accrued leave), 6307 (sick leave), 6322 (court leave), 6323 (military leave);

Premium Weekend Pay, 38 U.S.C. §§ 7453 (nurses), 7454(b)(2) (hybrids), 7454(b)(3) (civil service employees);

Veterans Health Administration Employees, 38 U.S.C. §§ 7401(1) (nurses), 7401(3) (hybrids), 7408(a) (civil service employees);

Title 5 Employees, 5 U.S.C. §§ 5595 (severance pay), 8101-8193 (work injury pay), 8301-8351 (retirement pay), 8401-8480 (retirement pay), 8701-8716 (life insurance).

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, Patricia Smith, Department of Veterans Affairs, Office of General Counsel, Washington, D.C.

MEMORANDUM OPINION AND ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT ON LIABILITY

BRADEN, Judge.

I. STATUTORY AND FACTUAL BACKGROUND.¹

Effective January 1, 2004, Congress authorized civil service employees in the Veterans Health Administration ("VHA") within the Department of Veterans Affairs ("VA") to be compensated at their basic pay rate, plus an additional twenty-five percent above their basic pay rate for work performed between "midnight Friday and midnight Sunday" ² (referred to herein as "premium pay"). See Veterans Health Care, Capital Asset, and Business Improvement Act of 2003, Pub. L. No. 108-170, § 303, 117 Stat. 2042, 2058 (codified as amended at 38 U.S.C. § 7454(b)(3) (2006)). When the employees elected to use authorized accrued "leave with pay"³ on Saturdays, they were only compensated at their basic pay rate. Pl. Ex. 1 at ¶¶ 1, 4; Pl. Ex. 4 at ¶ 2.

II. PROCEDURAL HISTORY.

On January 29, 2010, a Class Action Complaint ("Compl.") was filed in the United States Court of Federal Claims alleging that, since January 1, 2004, Plaintiffs, and those similarly situated, have been deprived of "regular and customary Saturday premium pay while on authorized and accrued leave [with pay]." Compl. ¶¶ 33-34 (internal quotation marks omitted). In addition, Plaintiffs filed a Motion For Class Certification.

On March 17, 2010, the Government filed an Opposition to Plaintiffs' January 29, 2010 Motion For Class Certification. On March 24, 2010, the Government filed an Answer. On March 29, 2010, Plaintiffs filed a Reply to the Government's March 17, 2010 Opposition. On April 13, 2010, the Government filed an Amended Answer.

On June 2, 2010, the parties filed a Joint Preliminary Status Report ("6/2/10 JPSR"), wherein the court was advised: the trial should be bifurcated into separate liability and damages proceedings; cross-motions for summary judgment would be filed after the court ruled on Plaintiffs' January 29, 2010 Motion For Class Certification; settlement was highly unlikely; and discovery may not be necessary if the parties were able to negotiate stipulations of fact. 6/2/10 JPSR at 1-3.

On June 11, 2010, Plaintiffs filed a Motion For Approval Of Class Certification Notices. On June 18, 2010, the court issued a Memorandum Opinion And Order granting class certification. See Adams v. United States, 93 Fed. Cl. 563, 578 (2010) (defining the relevantclass 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" (hereinafter "Class Plaintiffs")); see also Court Appendix.

On July 21, 2010, the Government filed a Response to Class Plaintiffs' June 11, 2010 Motion For Approval Of Class Certification Notices. On July 22, 2010, Plaintiffs filed Proposed Class Action Notices. On July 29, 2010, Class Plaintiffs filed a Reply to the Government's July 21, 2010 Response. On August 11, 2010, the court issued an Order approving Class Plaintiffs' July 22, 2010 Proposed Class Action Notices. On August 23, 2010, the court entered a proposed Joint Stipulated Protective Order.

On September 29, 2010, Class Plaintiffs filed a Motion For Partial Summary Judgment As To Liability ("Class Pl. Mot."), together with four exhibits ("Pl. Ex. 1-4"). On November 22, 2010, the Government filed a Cross-Motion For Summary Judgment ("Gov't Cross-Mot."), together with an Appendix of Exhibits ("Gov't Appx. at 1-8"). On December 20, 2010, Class Plaintiffs filed a Reply ("Pl. Reply").

On April 18, 2011, the court requested supplemental briefing to identify the statutory authority entitling Class Plaintiffs to receive "premium pay" for services performed on weekends. On May 2, 2011, Class Plaintiffs filed a Supplemental Brief ("Class Pl. Supp. Br."), together with two Supplemental Exhibits ("Pl. Supp. Ex. 1-2"), and the Government filed a Supplemental Brief ("Gov't Supp. Br.").

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. See 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." (citation omitted)). Therefore, a plaintiff must identify an independent basis by way of a contract, federal statute, regulation, or Constitutional provision upon which plaintiff is entitled to monetary payment from the federal government. See 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 damages sustained." (internal quotation marks and citations omitted)); see also 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. Inthe parlance of Tucker Act cases, that source must be money-mandating." (citations omitted) (internal quotation marks 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 that 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 January 29, 2010 Complaint alleges that the now designated Class Plaintiffs were unlawfully denied "premium pay" when they elected to use authorized accrued "leave with pay" on Saturdays, in violation of 5 U.S.C. §§ 6303, 6307, 6322, 6323 and 38 U.S.C. § 7454(b)(3). Compl. ¶¶ 6-7, 14, 15, 30-35. As such, the January 29, 2010 Complaint identifies and pleads an independent right to money damages sufficient to invoke the court's jurisdiction under the Tucker Act.

B. Standing.

The United States Supreme Court has held that "the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing must be determined "as of the commencement of suit." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.5 (1992). The party invoking federal jurisdiction bears the burden of establishing standing. Id. at 560-61. Specifically, "a plaintiff must show (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000) (citations omitted).

In this case, the January 29, 2010 Complaint alleges that Plaintiffs, and those similarly situated, have incurred injury that is concrete, particular, actual, traceable to the VA's actions, and that the resulting economic injury can be determined in a specific amount. Compl. ¶¶ 30-35. As such, the January 29, 2010 Complaint alleges the jurisdictional prerequisites to establish that Plaintiffs have standing to pursue a claim that the VA denied them "premium pay" when they elected to use authorized accrued "leave with pay" on Saturdays.

C. Standard On A Motion For Summary Judgment.

On a motion for summary judgment, the moving party must show there is no genuine issue as to any material fact, and that it is entitled to judgment as a matter of law. See Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir. 2005) ("Summary judgment is only appropriate if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."); see also ...