Gross v. United States

In the United States Court of Federal Claims

No. 11-715C

(E-Filed: October 31, 2016)

)

ALAN GROSS, )

)

Plaintiff, ) Sunday premium pay; 5 U.S.C. §

) 5546(a); Motion for Partial Dismissal;

v. ) Cross-Motions for Summary

) Judgment; Renewed Motion to Certify

THE UNITED STATES, ) a Class.

)

Defendant. )

)

Arlene F. Boop, Doris G. Traub, and Daniel L. Alterman, New York, NY, for plaintiff.

Kenneth S. Kessler, Trial Attorney, and Kenneth D. Woodrow, Trial Attorney, with

whom where Joyce R. Branda, Acting Assistant Attorney General, Robert E. Kirschman,

Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch,

Civil Division, United States Department of Justice, Washington, DC, for defendant.

Adam Chandler, Attorney, Bureau of the Census, United States Department of

Commerce, Washington, DC, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, Chief Judge

Plaintiff, an employee of the United States Census Bureau (“Census Bureau”),

contends that he and others similarly situated have not been paid the Sunday premium

pay to which they are entitled under federal law. Presently before the court are

defendant’s motion for a partial dismissal of plaintiff’s claims, the parties’ cross-motions

for summary judgment, and plaintiff’s renewed motion for class certification. The court

GRANTS defendant’s motion for partial dismissal, DENIES defendant’s motion for

summary judgment, and GRANTS plaintiff’s motions for summary judgment and class

certification.

I. Background

A. Organization of the Census Bureau

The Census Bureau is part of the Economic and Statistics Administration of the

United States Department of Commerce (“Commerce Department”).1 Jt. Stip. ¶ 1.

Within the Census Bureau is a Field Directorate which is overseen by the Associate

Director of Field Operations. Id. ¶ 2. The Field Directorate includes the National

Processing Center and the Field Division. Id. The National Processing Center manages

three telephone centers (also referred to as contact centers), respectively located in

Jeffersonville, Indiana, Tucson, Arizona, and Hagerstown, Maryland. Id. ¶ 7. The Field

Division is comprised of an office at Census Bureau headquarters in Suitland Maryland,

and six regional offices; prior to 2012, there were twelve regional offices. Id. ¶¶ 3-4.

B. Census Bureau Interviewers

The Census Bureau employs, as interviewers, individuals who conduct interviews

to gather information for surveys commissioned by the federal government and private

businesses. Id. ¶ 5. Included among the surveys are the Current Population Survey

(“CPS”), the Survey of Income and Program Participation (“SIPP”), the National

Ambulatory Medical Care Survey, and the Consumer Expenditure Quarterly Survey.

Def.’s Ex. A at 5; Def.’s Ex. B at 9; Def.’s Ex. C at 15; Def.’s Ex. D at 21; Def.’s Ex. E

at 27. In the Field Directorate, interviewers work either for one of the three contact

centers managed by the National Processing Center or for one of the Field Division’s

regional offices. Jt. Stip. ¶¶ 6-7. The interviewers have varying job titles: (1) at the

Jeffersonville contact center, the interviewers are classified as Statistical Clerks;2 (2) at

the Tucson and Hagerstown contact centers, the interviewers are classified as Telephone

Interviewers; and (3) at the regional offices, the interviewers are classified as either Field

1

The court derives the facts in this section from the parties’ joint stipulation of facts

(“Jt. Stip.”, ECF No. 40), the decisions in Fathauer v. United States, 566 F.3d 1352 (Fed.

Cir. 2009), and Gross v. United States, 106 Fed. Cl. 369 (2012), the exhibits submitted by

plaintiff (“Traub Ex.,” “Boop Ex.,” “Savits Ex.,” “Traub Supp’l Ex.”), and the exhibits

submitted by defendant (“Def.’s Ex.”). Due to the inconsistent pagination in plaintiff’s

exhibits and the almost complete lack of pagination in defendant’s exhibits, the court

refers to the page numbers assigned by its electronic case filing system.

2

Plaintiff represents, and defendant does not dispute, that this action does not

involve the Statistical Clerks who conduct telephone interviews from the Jeffersonville

contact center. See Pl.’s MSJ 5 n.2. Defendant explains that no part-time interviewers

work at that contact center. Def. Ex. A at 6.

2

Representatives or Senior Field Representatives (collectively, “Field Representatives”).

Id. ¶¶ 7-8.

The Telephone Interviewers conduct interviews from the contact centers; they

enter responses of the survey participants into computers located at the centers. Jt. Stip.

¶¶ 7, 11. The Field Representatives conduct telephone interviews from their own homes

or at either the homes or the businesses of the survey respondents; they enter the

responses of the survey participants into government-issued laptop computers. Id. ¶¶ 10-

11. The Senior Field Representatives perform the same work as Field Representatives.

In addition, they have certain training responsibilities, to include conducting field

observations of, and providing on-the-job feedback to, the Field Representatives. Id. ¶ 9.

C. Interviewers’ Work Schedules

The Telephone Interviewers and the Field Representatives are appointed to their

positions under Schedule A of excepted service. Id. ¶ 12. Appointed as mixed tour

employees, they work either intermittent, part-time, or full-time schedules. Id. ¶ 13. All

newly hired interviewers start on an intermittent work schedule. Id. ¶ 14. They convert

from an intermittent work schedule to a part-time work schedule once they establish a

work pattern that exceeds a fixed minimum number of hours per quarter, and such work

hours are reasonably expected to continue. Id. ¶¶ 15-16. For Telephone Interviewers,

the fixed minimum number of hours is 150; for Field Representatives, it is 240. Id. Field

Representatives also must demonstrate a predictable work pattern of hours over two

consecutive quarters of pay intervals before they become eligible to convert to a part-time

work schedule. Id. ¶ 17. Once Field Representatives convert to a part-time work

schedule, they remain on that schedule if there is sufficient work to do and the Field

Representatives are performing satisfactorily. Id. ¶ 21. The Census Bureau determines

the type of work schedule for each interviewer and completes, as documentation, a

Standard Form 50. Id. ¶ 18.

Part-time Telephone Interviewers work in shifts of normally less than eight hours

in duration. These work shifts are scheduled two weeks in advance by contact center

management. Id. ¶ 23. These work schedules vary from pay period to pay period

depending on the amount of available work. Id. ¶ 24. Part-time Telephone Interviewers

are able to swap hours amongst themselves, subject to supervisor approval. Id. ¶ 25.

In contrast, part-time Field Representatives set their own hours based on workload

and the availability of survey respondents. Id. ¶ 26. If Field Representatives are unable

to complete their assigned work timely, their supervisors may reassign the work to others.

Id. ¶ 27. The administrative workweek for Field Representatives spans from Sunday at

12:01 a.m. to Saturday at midnight. Id. ¶ 33; cf. id. ¶ 20. Field Representatives must

report the hours they have worked by date. Id. Part-time Field Representatives are

3

eligible for overtime pay and, if they have performed night and holiday work, for

premium pay. Id. ¶ 22.

As a condition of employment, Telephone Interviewers and Field Representatives

must be amenable to weekend work. Id. ¶ 28. Night work and weekend work allow

these employees to reach survey respondents who are available at such times. Id. ¶ 29.

For all surveys conducted by the Census Bureau, Sunday interviewing is

permitted. Id. ¶ 35. For some of the surveys, the interviewing is expected to begin on a

Sunday. Id. ¶ 34. The SIPP survey, for example, is a monthly survey that must start on

the first day of the month – without regard to whether it falls on a Sunday. Id. ¶ 38. The

interviewing period for another survey, the CPS survey, begins on a pre-determined

Sunday and runs for either ten or eleven days: this period of time, which is known as the

“CPS Week,” includes two Sundays. Def.’s Ex. D at 2. Prior to CPS Week, the regional

offices issue memoranda and calendars pertaining to that month’s survey. See generally

Def.’s Exs. H-Q. The regional offices permit the Field Representatives to work through

the last day of interview period during CPS week and occasionally request that the field

representatives provide daily transmittals back to the office. Jt. Stip. ¶ 37.

Field Representatives may perform other work on Sundays as well. Some survey

instructions require daily phone calls from Field Representatives to Senior Field

Representatives during specified weeks. Id. ¶ 36. Centralized training sessions also may

be scheduled on Sundays, id. ¶ 39, and Senior Field Representatives may conduct their

field observations of Field Representatives on Sundays, id. ¶ 40.

Sunday’s work permits Field Representatives to achieve high survey response

rates, to complete various surveys timely, and to attain Census Bureau’s survey goals. Id.

¶¶ 30-32. But, part-time Field Representatives have never received premium pay for the

work they have performed, and continue to perform, on Sundays. Id. ¶¶ 73, 75.

D. The Fathauer Decision and the Census Bureau

The Sunday premium pay statute provides:

An employee who performs work during a regularly scheduled 8-hour

period of service which is not overtime work as defined by section 5542(a)

of this title a part of which is performed on a Sunday is entitled to pay for

the entire period of service at the rate of his basic pay plus premium pay at

a rate equal to 25 percent of his rate of basic pay.

5 U.S.C. § 5546(a) (2006). For more than forty years, the federal government has

interpreted this statute to apply only to full-time employees. Fathauer, 566 F.3d at 1352-

53. However, on May 26, 2009, the United States Court of Appeals for the Federal

4

Circuit (“Federal Circuit”) ruled in the Fathauer decision that the term “employee” in the

Sunday premium pay statute includes both full-time and part-time employees. Id. at

1353, 1357.

As a result of the decision in Fathauer, the United States Office of Personnel

Management (“OPM”), which serves as the federal government’s human resources arm,

Jt. Stip. ¶ 41, began issuing guidance to federal agencies about the payment of Sunday

premium pay. On August 27, 2009, OPM advised counsel at the Census Bureau, by

electronic mail, that eligible part-time employees should receive Sunday premium pay.

Id. ¶ 46. Counsel at the Census Bureau forwarded OPM’s message to an official at the

Commerce Department’s Office of Human Resources Management (“OHRM”). Id. ¶ 47.

That OHRM official, in turn, forwarded the message to the director of the Census

Bureau’s Human Resources Division, among others. The director of the Census Bureau’s

Human Resources Division forwarded the message to persons within the division for

“appropriate action.” Id. ¶¶ 48-49. The Census Bureau’s Human Resources Division

then notified the Field Division of the Fathauer decision. Id. ¶ 50.

On December 8, 2009, OPM issued a memorandum of guidance to assist federal

agencies with the processing of their employees’ administrative claims for Sunday

premium pay. Id. ¶ 51. Two weeks later, on December 24, 2009, the Commerce

Department’s OHRM issued a bulletin to those human resources divisions within the

Commerce Department’s various component agencies, including the Census Bureau’s

Human Resources Division, that were responsible for paying Sunday premium pay to

part-time employees. Id. ¶ 52. The Commerce Department expected its subordinate

agencies, through their respective human resources divisions, to provide notice to all part-

time employees of their eligibility for Sunday premium pay. Id. ¶ 53. But, the

Commerce Department did not monitor the subordinate agencies for compliance. Id. ¶

54.

On July 13, 2010, an official from OHRM issued another bulletin with additional

guidance about the processing of administrative claims for Sunday premium pay. Id. ¶

58. But, not until March 7, 2011 did the Census Bureau begin to send notices to its

employees regarding their entitlement to Sunday premium pay. Id. ¶ 59; cf. id. ¶ 69

(noting that the OHRM never advised Commerce Department components of the

deadlines for submitting administrative claims for Sunday premium pay). On that date,

the chief of the National Processing Center’s Human Resources Branch notified all

employees located in the Tucson and Hagerstown contact centers, including the

Telephone Interviewers, of the procedure for filing administrative claims for Sunday

premium pay. Id. ¶¶ 59-60. The chiefs of the individual contact centers also issued

memoranda advising employees of the proper procedure for submitting an administrative

claim. Id. ¶¶ 61-62. Nearly three months later, an official from the National Processing

Center sent a memorandum to the employees of the Tucson and Hagerstown contact

centers to update them on the administrative claims process. Id. ¶ 63.

5

Of the three classes of interviewers employed with the Census Bureau, only the

Telephone Interviewers were advised that they could receive Sunday premium pay for the

Sunday hours they had worked since May 2003. Id. ¶ 60. To receive payment, they had

to establish the number of hours they had worked on various Sundays while in part-time

status. Id. ¶ 66. To do so, they were provided access to National Processing Center

computers. Id. ¶ 67; see also id. ¶ 19 (stating that the personnel records contained within

the Census Bureau’s Human Resource Information System included employees’

appointment type, work schedule, and work history). The National Processing Center

assisted the Telephone Interviewers with their claims: first by generating payroll records

and verifying part-time status Sunday workhours, and then by submitting the

administrative claims to the National Finance Center of the United States Department of

Agriculture, the entity responsible for processing the Census Bureau’s payroll. Id. ¶¶ 57,

64-65, 68. Eligible Telephone Interviewers ultimately received retroactive Sunday

premium pay. Id. ¶¶ 72, 74. They continue to do so, and the Census Bureau has

amended the job announcement for the Telephone Interviewer position to reflect the

availability of Sunday premium pay. Id. ¶ 76.

The Census Bureau has treated the part-time Field Representatives differently.

Neither the Commerce Department nor the Census Bureau notified these employees of

either the Fathauer decision or the procedure for submitting an administrative claim for

Sunday premium pay. Id. ¶¶ 70-71. The Field Representatives have never received

retroactive Sunday premium pay. Id. ¶¶ 73, 75. Nor do they receive such pay now.

Moreover, the Census Bureau has not amended the job announcement for the Field

Representative and Senior Field Representative positions to reflect the availability of

Sunday premium pay. Id. ¶ 77.

E. Plaintiff’s Application for Sunday Premium Pay

Plaintiff was hired by the Census Bureau in 1990. Since his hiring, he has worked

as a permanent, part-time Field Representative for the New York regional office. Traub

Ex. 6B; Def.’s Ex. Y at 60-61. He first heard from a Telephone Interviewer who worked

in the Hagerstown contact center that she had received Sunday premium pay. Jt. Stip. ¶

78. He then learned of the Fathauer decision and discovered that other part-time

Telephone Interviewers were receiving Sunday premium pay. Id. ¶ 79.

On April 15, 2011, plaintiff sent a written letter of demand for Sunday premium

pay to both the director of the New York regional office and an employee at the Pay,

Benefits, and Services Branch in the Census Bureau’s Human Resources Division. Id.

As the chief of the Pay, Benefits, and Services Branch, Ms. Jodee Pritchett reviewed

plaintiff’s letter and discussed it with a colleague in the Human Resources Division. Id. ¶

80. She then referred plaintiff’s letter to counsel for the Census Bureau and expressed

concern about both the potential cost of the part-time Field Representatives’

6

administrative claims and the need to treat all Census Bureau employees equally. Id. ¶

81. Plaintiff’s demand for Sunday premium pay prompted the Census Bureau to prepare

an estimate of what it might owe to part-time Field Representatives in Sunday premium

pay. Id. ¶ 84.

On May 27, 2011, Ms. Pritchett sent a letter to plaintiff requesting additional

information about his claim. Id. ¶ 82. Plaintiff responded on June 22, 2011. Id. ¶ 83. To

date, neither the Commerce Department nor the Census Bureau has ruled on plaintiff’s

claim or determined whether permanent, part-time Field Representatives are eligible to

receive Sunday premium pay. Id. ¶ 86. Following plaintiff’s correspondence with the

Human Resources Division, the New York regional office amended its monthly CPS

memorandum. It previously had stated that Field Representatives who conduct such

surveys are “expected to work” on the first Sunday of the CPS; it now provides: “All CPS

[Field Representatives] who have cases in their possession are encouraged to work the

first Sunday (although this is not a requirement).” Id. ¶ 85.

F. Plaintiff’s Lawsuit

Because the Census Bureau has not acted on his claim for Sunday premium pay,

plaintiff filed this action. He seeks for himself – and all similarly situated part-time Field

Representatives within the Census Bureau – Sunday premium back pay from May 2003

to the present. He asks the court to direct the Census Bureau to make such payments

going forward and to reimburse his incurred attorneys’ fees. Compl. 7-8.

Shortly after filing his complaint, plaintiff moved for class certification. Pl.’s Mot.

to Certify Class, ECF No. 6. The court denied that motion without prejudice, and the

parties proceeded with discovery. Gross v. United States, 106 Fed. Cl. 369 (2012). Upon

the close of fact discovery, the parties filed cross-motions for summary judgment. Pl.’s

Mot. for Summary J. (Pl.’s MSJ), ECF No. 44; Def.’s Resp. and Cross-Mot. for Summary

J. (Def.’s MSJ), ECF No. 50; Pl.’s MSJ Reply, ECF No. 53; Def.’s MSJ Reply, ECF No.

54. Plaintiff also renewed his motion for class certification, Pl.’s Renewed Mot. to

Certify Class (Pl’s Renewed Mot.), ECF No. 45, and defendant filed a motion to dismiss

those of plaintiff’s claims that fall outside of the six-year limitations period, Def.’s Mot.

to Partially Dismiss (Def.’s Mot. to Dismiss), ECF No. 48. See also Def.’s Resp. to Pl.’s

Mot. (Def.’s Resp.), ECF No. 49; Pl.’s Reply, ECF No. 52; Pl.’s Resp. to Def.’s Mot.

(Pl.’s Resp.), ECF No. 51; Def.’s Reply, ECF No. 55. The court ordered supplemental

briefing, and heard oral argument on May 24, 2016. Pl.’s Supp’l Br., ECF No. 59; Def’s

Supp’l Br. & Resp. (Def.’s Supp’l Br.), ECF No. 64; Pl.’s Supp’l Reply, ECF No. 65;

Hr’g Tr. (Tr.), ECF No. 75. The parties’ motions are now ripe for decision.

The court considers, in turn, the motion to dismiss, the cross-motions for summary

judgment, and the renewed motion for class certification.

7

II. Defendant’s Motion to Dismiss

Defendant argues that plaintiff’s claims for Sunday premium pay based on work

performed prior to October 28, 2005 are time-barred. Def.’s Mot. to Dismiss 1.

Defendant asserts that, pursuant to 28 U.S.C. § 2501, any claims that accrued more than

six years before plaintiff filed his complaint must be dismissed. Def.’s Mot. to Dismiss 1.

Plaintiff disagrees. Plaintiff asserts that the accrual suspension rule applies here.

Plaintiff argues that the limitations period for his claims must be suspended because

defendant concealed the information necessary for him – and the proposed class – to

bring their Sunday premium pay claims. Pl.’s Resp. on Mot. to Dismiss 1, ECF No. 51.

A. Legal Standards

Pursuant to the Tucker Act, codified at 28 U.S.C. § 1491(a)(l), the court has

jurisdiction, in pertinent part, “to render judgment upon any claim against the United

States founded either upon… any Act of Congress or any regulation of an executive

department… for liquidated or unliquidated damages.” To invoke the court’s

jurisdiction, plaintiff must show that his claim is based upon a statute or regulation that

“can fairly be interpreted as mandating compensation by the Federal Government for the

damages sustained.” United States v. Mitchell, 463 U.S. 206, 216-17 (1983) (quoting

United States v. Testan, 424 U.S. 392, 400 (1976)). Plaintiff has the burden of

establishing the court's jurisdiction. Reynolds v. Army & Air Force Exch. Serv., 846

F.2d 746, 748 (Fed. Cir. 1988).

A challenge to the United States Court of Federal Claims’ “general power to

adjudicate in specific areas of substantive law . . . . is properly raised by a [Rule] 12(b)(1)

motion.” Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC

12(b)(1) (allowing a party to assert, by motion, the “lack of subject-matter jurisdiction”).

When such a motion is filed, the party seeking to invoke the court’s jurisdiction has the

burden of proof, McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189

(1936), and the burden is one of preponderant evidence, Reynolds, 846 F.2d at 748

(citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir. 1969) (in turn quoting McNutt,

298 U.S. at 189)).

When considering whether to dismiss an action for lack of subject matter

jurisdiction, the court is “obligated to assume all factual allegations [of the complaint] to

be true and to draw all reasonable inferences in plaintiff’s favor.” Henke v. United

States, 60 F.3d 795, 797 (Fed. Cir. 1995). “If a motion to dismiss for lack of subject

matter jurisdiction . . . challenges the truth of the jurisdictional facts alleged in the

complaint, the district court may consider relevant evidence in order to resolve the factual

dispute.” Reynolds, 846 F.2d at 747.

8

The United States Supreme Court has held that “to survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also A & D Auto Sales, Inc.

v. United States, 748 F.3d 1142, 1157–58 (Fed. Cir. 2014) (quoting Iqbal, 556 U.S. at

678) (“A claim is facially plausible when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable. If the plaintiff fails

to include such allegations in his complaint, it is deficient.”) (citation omitted).

A plaintiff seeking to establish jurisdiction in this court under the Tucker Act also

must show that his or her claim accrued within six years of the date upon which the

action is filed. See 28 U.S.C. § 2501 (2012); John R. Sand & Gravel Co. v. United

States, 552 U.S. 130, 133–35 (2008) (providing that the six-year limitations period is an

“absolute” limit on the ability of the Court of Federal Claims to reach the merits of a

dispute). Before addressing the merits, the “court must satisfy itself that it has

jurisdiction to hear and decide a case.” Hardie v. United States, 367 F.3d 1288, 1290

(Fed. Cir. 2004) (quoting PIN/NIP, Inc. v. Platte Chem. Co., 304 F.3d 1235, 1241 (Fed.

Cir. 2002) (in turn citing View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962,

963 (Fed. Cir. 1997))). The six-year statute of limitations set forth in 28 U.S.C. § 2501

“is a jurisdictional requirement attached by Congress as a condition of the government's

waiver of sovereign immunity and, as such, must be strictly construed.” Hopland Band

of Pomo Indians v. United States, 855 F.2d 1573, 1576–77 (Fed. Cir. 1988); see also

Kirby v. United States, 201 Ct. Cl. 527, 1973 WL 21341 (1973). “Because the statute of

limitations affects this court's subject matter jurisdiction—rather than being an

affirmative defense—the requirement is strictly construed and under no circumstances

may it be waived by the court.” Martinez v. United States, 48 Fed. Cl. 851, 857 (2001)

(citing Laughlin v. United States, 22 Cl. Ct. 85, 99 (1990), aff'd, 975 F.2d 869 (Fed. Cir.

1992)); FloorPro, Inc. v. United States, 680 F.3d 1377, 1380-81 (Fed. Cir. 2012) (holding

that the limitations period imposed by section 2501 is “jurisdictional, and may not be

waived or tolled”); see also Alder Terrace Inc. v. United States, 161 F.3d 1372, 1376–77

(Fed. Cir. 1998); Hart v. United States, 910 F.2d 815, 817 (Fed. Cir. 1990).

It is well settled that a “claim accrues when all events have occurred that fix the

alleged liability of the Government and entitle the plaintiff to institute an action.”

Creppel v. United States, 41 F.3d 627, 631 (Fed. Cir. 1994) (quoting Japanese War Notes

Claimants Ass’n v. United States, 373 F.2d 356, 358 (Ct. Cl. 1967)); Patton v. United

States, 64 Fed. Cl. 768, 774 (2005) (quoting Kinsey v. United States, 852 F.2d 556, 557

(Fed. Cir. 1988)). “A claim does not accrue, however, ‘unless the claimant knew or

should have known that the claim existed.’” Id. (quoting Kinsey, 852 F.2d at 557 n.*);

see also Banks v. United States, 741 F.3d 1268, 1279–80 (Fed. Cir. 2014) (“The accrual

of a claim against the United States is suspended, for purposes of 28 U.S.C. § 2501, until

the claimant knew or should have known that the claim existed (‘the accrual suspension

rule’).” “Alternatively [stated], ‘[a] claim accrues when damages are ascertainable.’”

9

Patton, 64 Fed. Cl. at 774 (quoting Shermco Indus., Inc. v. United States, 6 Cl. Ct. 588,

591 (1984)).

“This court has long adhered to the view that a suit for compensation due and

payable periodically is, by its very nature, a ‘continuing claim’ which involves multiple

causes of action, each [claim] arising at the time the Government fails to make the

payment alleged to be due.” Acker v. United States, 23 Cl. Ct. 803, 804 (1991) (quoting

Burich v. United States, 366 F.2d 984, 986 (Ct. Cl. 1966), cert. denied, 389 U.S. 885

(1967)). When considering statutory claims for back pay, the court has applied the

continuing claim doctrine so that periodic pay claims – which accrue more than six years

prior to filing a claim with the court – are not time-barred. Friedman v. United States,

310 F.2d 381, 384 (Ct. Cl. 1962). “[T]he cause of action accrues upon completion of the

work for which recovery is sought[.]” Burich, 366 F.2d at 986. Thus, a plaintiff asserting

a continuing claim is “entitled to recover the allowances accrued during the six years

immediately preceding the filing of suit, even if the claims originally arose more than six

years before.” Acker, 23 Cl. Ct. at 804 (citation omitted).

In certain circumstances, the accrual suspension rule operates to suspend the six

year statute of limitations period. The rule applies if “the claimant ‘… either show[s] that

the defendant… concealed its acts with the result that plaintiff was unaware of their

existence or… show[s] that its injury was ‘inherently unknowable’ at the accrual date.’”

Banks, 741 F.3d at 1280 (quoting Young v. United States, 529 F.3d 1380, 1384 (Fed. Cir.

2008) (quoting Martinez v. United States, 333 F.3d 1295, 1319 (Fed. Cir. 2003) (en

banc)). Accrual suspension is appropriate “only where [a plantiff’s] due diligence would

not have prompted discovery” at an earlier date. Patton, 64 Fed. Cl. at 776. The court

has noted that “absent active concealment by defendant, accrual suspension requires what

is tantamount to sheer impossibility of notice.” Rosales v. United States, 89 Fed. Cl. 565,

578 (2009).

Upon finding, at any time, that it does not have jurisdiction over a case, the court

must dismiss it. RCFC 12(h)(3).

B. The Parties’ Positions

Defendant asserts that plaintiff has alleged a continuing claim in his October 28,

2011 complaint. Def.’s Mot. to Dismiss 6 (citing 28 U.S.C. § 2501). Defendant contends

that the statute of limitations bars those of plaintiff’s claims that precede October 28,

2005, the date six years prior to the filing of his complaint with the court. Id.

To support its position, defendant argues that plaintiff cannot characterize the

Federal Circuit’s decision in Fathauer as an “administrative determination” under the

Back Pay Act, 5 U.S.C. § 5596(b)(4) – and thereby bring claims for the six year period

preceding the issuance of Fathauer – because the court has previously found that the Back

10

Pay Act does not extend the statute of limitations. Def.’s Mot. to Dismiss 6 n.3 (citing

Jones v. United States, 113 Fed. Cl. 39, 42 (2013); Wilder v. United States, 277 Fed.

Appx. 999, 999-1000 (Fed. Cir. 2008) (affirming dismissal of plaintiff’s Back Pay Act

claims as barred by section 2501)). Defendant adds that equitable tolling is not available

for actions brought under the Tucker Act. Id. at 7 (citing John R. Sand & Gravel, 552

U.S. at 133-34; Young, 529 F.3d at 1384; Banks, 102 Fed. Cl. at 143).

Defendant acknowledges that under the “accrual suspension” rule, claims may be

excepted from the ordinary application of the statute of limitations. But, defendant

asserts, plaintiff here cannot meet the “strictly and narrowly applied” requirements for the

accrual suspension rule to apply. Id. at 7-8. Specifically, plaintiff cannot show that

either: (1) defendant “concealed its acts with the result that [plaintiff was] unaware of

their existence”, or (2) the alleged injuries plaintiff suffered were “inherently unknowable

at the accrual date[s].” Id. (citing Banks, 102 Fed. Cl. at 143). Defendant insists that the

government acted openly by paying plaintiff his regular rate for Sunday work without

premium pay and thus, put plaintiff on notice of his injury. Id. at 8 (citing Webster v.

United States, 90 Fed. Cl. 107, 115 (2009)). Defendant adds that plaintiff cannot

establish that his injuries were inherently unknowable at the time they accrued because

the accrual suspension rule applies only to the concealment of the relevant facts and not

to any failure to draw to plaintiff’s attention the legal basis for a potential claim. Id. at 8-

9 (citing Banks, 102 Fed. Cl. at 144; Young, 529 F.3d at 1385; Venture Coal Sales Co. v.

United States, 57 Fed. Cl. 52, 54 (2003) (observing that a “statute’s effect and objective

meaning are fixed when the statute is adopted, not when it is first construed by a

court.”)); Def.’s Reply 1-2 (citing Menominee Tribe of Indians v. United States, 726 F.2d

718, 720–21 (Fed. Cir. 1984).

Plaintiff responds that because defendant failed to alert him and the proposed class

of their eligibility for Sunday premium pay, as the OPM and the DOC’s OHRM had

directed, the accrual suspension rule does apply. Pl.’s Resp. 12, 14, 15-16; see Jt. Stip.

¶70. Plaintiff maintains that as a result of defendant’s failure to act as charged, his

injuries were not discoverable until he “fortuitously learned of the operative facts through

a Telephone Center employee.” Id. 17.

Plaintiff challenges the cases upon which defendant relies because they do not

involve allegations of the government actively concealing information. Id. at 17-18.

Plaintiff asserts that “[d]efendant concealed the very facts that would have made

[p]laintiff and the [Field Representatives] aware of the existence of [their] claim for

Sunday premium pay.” Id. at 21. Specifically, defendant failed to alert plaintiff of: (1)

the extension of Sunday premium pay to part-time employees under Fathauer; (2) the

procedure for submitting an administrative claim; and (3) any determination, if made by

the Census Bureau, that part-time Field Representatives are ineligible for Sunday

premium pay. Plaintiff adds that any limitation of his claim to the six years prior to the

11

filing of his complaint would permit the Census Bureau to profit from its acts of

concealment. Id.

C. Discussion

Plaintiff’s proposed application of the accrual suspension rule – to preserve his

claim for the six year period prior to the date of the Fathauer decision – appears to be a

novel one. See Pl.’s Resp. 17-18. Plaintiff endeavors to invoke the accrual suspension

rule to extend the statute of limitations for his claims at the same time that he is

benefitting from the application of the continuing claim exception to preserve his claim.

But plaintiff points to no authority – and the court is aware of none – that supports the

application of the accrual suspension rule to expand the statutory six year period of

recovery for a continuing claim.

Effectively, plaintiff asserts that his claim was inherently unknowable before the

issuance of the Fathauer decision and that defendant concealed the claim thereafter. Pl.’s

Resp. on Mot. to Dismiss 22 (“[A]bsent notice, [plaintiff] would never have known of the

existence of [his] claims or [his] injury or had the factual information necessary for

purposes of filing such a claim.”). The record does show that the Census Bureau failed to

make available to the Field Representatives information concerning the administrative

claim process for Sunday premium pay. Jt. Stip. ¶70; see also section I(D), supra.

Plaintiff assumes incorrectly, however, that prior to the Fathauer decision, his claim was

inherently unknowable. See Japanese War Notes Claimants, 373 F.2d at 359 (“An

example of [an inherently unknowable injury] would be when defendant delivers the

wrong type of fruit tree to plaintiff and the wrong cannot be determined until the tree

bears fruit.”); Roberts v. United States, 312 Fed. Appx. 340, 342 (Fed. Cir. 2009)

(affirming the dismissal of plaintiffs' claims as untimely under § 2501, where plaintiff

failed to demonstrate that his military service records were wholly unavailable).

The plaintiffs in Fathauer were meteorologists who worked part-time with the

National Weather Service. They brought suit against the United States claiming

entitlement to Sunday premium pay. Fathauer, 566 F.3d 1352. Like the meteorologists

in Fathauer, plaintiff is a part-time federal employee who worked on Sundays without

premium pay, and like the meteorologists in Fathauer, plaintiff also could have filed an

action. Plaintiff need not have waited for defendant to alert him that such an action could

have been brought or that such an action might be successful.

Plaintiff’s effort to key the accrual of his claim to the timing of the Federal

Circuit’s decision is similar to an effort made by the plaintiff in RAM Energy, Inc. v.

United States, 94 Fed. Cl. 406, 412 (2010). In that case, the complainant argued that the

accrual suspension rule applied because “the underlying basis for the claim [wasn’t]

known (or [couldn’t] be known) until there [was] first a legal determination establishing

the claimant's rights,” as had occurred in the earlier Neely case. Id. (citing Neely v.

12

United States, 546 F.2d 1059 (3d Cir. 1976). The court disagreed because the Third

Circuit’s decision in the Neely case cited by plaintiff was readily distinguishable. The

court observed that the claimants in Neely had no legal right to bring suit until the

Supreme Court reversed the adverse precedent in the Third Circuit, and thus their claim

was deemed inherently unknowable. Id.

As in Ram Energy, this case is different from the circumstance in Neely. The

Federal Circuit’s interpretation of the Sunday premium pay statute in Fathauer did not

create a legal claim for plaintiff. As this court previously stated, “a statute’s effect and

objective meaning are fixed when the statute is adopted, not when it is first construed by

a court.” Venture Coal Sales Co., 57 Fed. Cl. at 54. Thus, “[c]ases such as Neely are

readily distinguishable from those in which the facts are known, but the legal

implications are not.” Petro-Hunt, L.L.C. v. United States, 90 Fed. Cl. 51, 62 (2009).

Because plaintiff could have asserted his claim as the plaintiffs in Fathauer did, his

claim did not accrue when the Federal Circuit issued its decision. Patton, 64 Fed. Cl. at

776; Banks, 102 Fed. Cl. at 144; Young, 529 F.3d at 1385. Rather, it accrued, and

continues to accrue, each pay period plaintiff performs work on a Sunday without

receiving Sunday premium pay.

The accrual date of plaintiff’s claim does not warrant suspension, and the statute

of limitations applies to bar those claims that fall outside the six year period prior to filing

of plaintiff’s complaint. 28 U.S.C. § 2501. Defendant’s motion for partial dismissal is

GRANTED. Plaintiff’s claims for Sunday premium pay that pre-date October 28, 2005

are DISMISSED.

III. The Parties’ Cross-Motions for Summary Judgment

The parties have filed cross-motions for summary judgment pursuant to Rule 56 of

the Rules of the United States Court of Federal Claims (RCFC).1 In their cross-motions

for summary judgment, the parties present their competing views on what constitutes “a

regularly scheduled 8-hour period of service.”

1

The Rules of the United States Court of Federal Claims generally mirror the

Federal Rules of Civil Procedure (FRCP). See RCFC 56 rules committee note (2008

amendment) (“The language of RCFC 56 has been amended to conform to the general

restyling of the FRCP.”); C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1541 n.2

(Fed. Cir. 1993) (“The [RCFC] generally follow the [FRCP]. [RCFC] 56(c) is, in

pertinent part, identical to [FRCP] 56(c).”). Accordingly, the court relies on cases

interpreting FRCP 56 as well as those interpreting RCFC 56.

13

A. Legal Standards

1. Summary Judgment

Summary judgment is appropriate when there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. RCFC 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). An issue is genuine if it “may reasonably be resolved in favor of either

party.” Id. at 250. “[T]he mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment;

the requirement is that there be no genuine issue of material fact.” Anderson 477 U.S.

247–48 (emphasis omitted).

The moving party bears the initial burden of demonstrating the absence of any

genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The nonmoving party

then bears the burden of showing that there are genuine issues of material fact for trial.

Id. at 324. Each party carries its burden by “citing to particular parts of materials in the

record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials” or by “showing that the materials

cited do not establish the absence or presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.” RCFC 56(c)(1).

The court must view the inferences to be drawn from the underlying facts in the

light most favorable to the nonmoving party. Matsushita Elec. Ind. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d

1387, 1391 (Fed. Cir. 1987). However, the court must not weigh the evidence or make

findings of fact. See Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage the

judge’s function is not himself to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.”); Contessa Food

Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1376 (Fed. Cir. 2002) (“On summary

judgment, the question is not the ‘weight’ of the evidence, but instead the presence of a

genuine issue of material fact . . . .”), abrogated on other grounds by Egyptian Goddess,

Inc. v. Swish, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc); Ford Motor Co. v. United

States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts

do not make findings of fact on summary judgment.”); Mansfield v. United States, 71

Fed. Cl. 687, 693 (2006) (“[T]he Court may neither make credibility determinations nor

weigh the evidence and seek to determine the truth of the matter. Further, summary

judgment is inappropriate if the factual record is insufficient to allow the Court to

determine the salient legal issues.”).

14

Summary judgment must enter against a party who fails to establish “an element

essential to that party’s case, and on which that party will bear the burden of proof at

trial.” Celotex Corp., 477 U.S. at 322. But, if neither party satisfies its burden on cross-

motions for summary judgment, then the court must deny both motions. See, e.g., Canal

66 P’ship v. United States, 87 Fed. Cl. 722, 723 (2009); Dick Pac./GHEMM, JV v.

United States, 87 Fed. Cl. 113, 126 (2009); Whalen v. United States, 93 Fed. Cl. 579, 587

(2010) (“Denial of both motions is warranted if genuine disputes exist over material

facts.”) (citing Mingus Constructors, Inc., 812 F.2d 1391).

Because the parties have developed an extensive factual record over the long

pendency of this case, the outstanding issues are primarily legal in nature. Thus,

summary judgment is appropriate, and to the extent any factual disagreements remain, the

court finds them to be immaterial.

2. Statutory Interpretation

Pursuant to the rules of statutory construction, “[i]f the intent of Congress is clear,

that is the end of the matter; for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc. (Chevron), 467 U.S. 837, 842-43 (1984). Where “the statutory

language is plain” the court “must enforce it according to its terms.” King v. Burwell,

135 S. Ct. 2480, 2489 (2015).

However, if statutory language contains an ambiguity, the court must examine the

textual context of the language as well as the legislative history of the statute. Star-Glo

Assocs., LP v. United States, 414 F.3d 1349, 1356 (Fed. Cir. 2005). Moreover, “if the

statute is silent or ambiguous with respect to the specific issue, the question for the court

is whether the agency's answer is based on a permissible construction of the statute.”

Chevron 467 U.S. at 843. These “regulations are given controlling weight unless they are

arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844; see also id. at 843

n.11 (“The court need not conclude that the agency construction was the only one it

permissibly could have adopted to uphold the construction, or even the reading the court

would have reached if the question initially had arisen in a judicial proceeding.”).

B. Discussion

Under the Sunday premium pay statute, a federal “employee who performs work

during a regularly scheduled 8-hour period of service which is not overtime work . . . a

part of which is performed on a Sunday is entitled to” Sunday premium pay. 5 U.S.C. §

5546(a). In Fathauer, the Federal Circuit found that the term “employee” pertains to both

full-time and part-time employees. 566 F.3d at 1353, 1357. The appellate court was

silent, however, as to what constitutes “work during a regularly scheduled 8-hour period

of service.” See id. at 1357-58 (Dyk, J., concurring). Thus, whether plaintiff is entitled

15

to Sunday premium pay turns on whether he performs work “during a regularly

scheduled 8-hour period of service… ” 5 U.S.C. § 5546(a) (emphasis added).

1. The Parties’ Positions

The parties do not dispute the meaning of the term “8 hour period of service.” The

parties agree that it includes any duration of work not exceeding 8 hours (and thus,

triggering overtime). Def.’s Supp’l Br. 3; Tr. 82, 86; Pl.’s Supp’l Br. 3-4. The parties

disagree, however, as to what the term “regularly scheduled” means. The court in

Fathauer did not “address the ‘regularly scheduled’ language in § 5546(a),” and thus left

unresolved the issue of whether part-time employees – who are assigned work with a

fixed deadline but set their own hours – could be deemed “regularly scheduled.”

Fathauer, 566 F.3d at 1357-58.

Defendant asserts that the term should be narrowly construed. To that end,

defendant argues that employees who set their own schedules – such as plaintiff and other

Field Representatives – cannot be deemed to be working “regularly scheduled” hours.

Def.’s MSJ 9-11. Defendant contends that plaintiff’s claim must fail because the work

performed was not scheduled in advance by a supervisor on a routine basis. Id.; Tr. 44

(defendant arguing that work scheduled in advance by a supervisor is not enough; rather,

it must be scheduled “regularly.”); Def.’s MSJ Reply 2.

Plaintiff challenges defendant’s claim that the Sunday premium pay statute

requires that a supervisor prepare a schedule of the exact days and hours that an

employee is expected to work. Plaintiff responds that defendant seeks to interpret the

statute in a manner that is contrary to the plain meaning of the phrase “regularly

scheduled.” Pl.’s MSJ 28. Instead, plaintiff argues, the term “regularly scheduled”

should be read more broadly to apply to all part-time Field Representatives whose work

necessitates Sunday hours. Pl.’s MSJ 6-7; Tr. 33-35; Pl.’s Supp’l Br. 13.

Plaintiff bases his argument on his designated work status – and that of the

proposed class member of Field Representatives – as an employee with a part-time

schedule rather than an intermittent schedule. Pl.’s MSJ 5-7. Plaintiff observes that an

employee’s part-time status is determined by the Census Bureau, not the employee. Id. at

7. Plaintiff adds that an employee can become eligible for part-time work status only

after establishing a regular pattern of work from pay period to pay period. Id. Although

employees hired as Field Representatives are “mixed tour” employees who may work as

either intermittent, part-time, or full-time employees, there are clear criteria for the

conversion of an employee from an intermittent to a part-time work schedule. Id. For

such conversion, an employee must “establish a pattern of working more than 240 hours

per quarter” and the employee is expected to continue to do so. Id. Plaintiff argues that

this established pattern qualifies both himself and the proposed class members as

16

“regularly scheduled” and renders them eligible to receive Sunday premium pay. Id. at 6

-8 (citing Jt. Facts at 15-17; Traub Ex. 4).

Plaintiff contends that OPM regulations require this finding because, according to

the pertinent regulation 5 C.F.R. § 610.111, only intermittent employees have irregular

schedules. Tr. 33-35; Pl.’s Supp’l Br. 13. Plaintiff explains that part-time Field

Representatives are identified readily once they convert from intermittent status by the

issuance of a new Standard Form 50 documenting their work status as “part-time.” Pl.’s

MSJ 7.

The court turns first to examine the text of the Sunday premium pay statute. See

Lamie v. Trustee, 540 U.S. 526, 534 (2004); Indian Harbor Ins. Co. v. United States, 704

F.3d 949, 954 (Fed. Cir. 2013).

2. The Phrase “Regularly Scheduled” Within the Sunday Premium Pay

Statute Is Not Ambiguous

The phrase “during a regularly scheduled 8-hour period of service” is not defined

in either the Sunday premium pay statute or any other statute relating to premium pay.

See 5 U.S.C. §§ 5541-5550b. Nor has the phrase been construed in the case law.

This court, however, has touched previously and lightly on the issue of the

scheduling requirements for Sunday premium pay when it found in Doe v. United States

that holiday pay, another type of premium pay, could not be “scheduled” by mere

knowledge, encouragement, or inducement. See Doe v. United States, 63 Fed. Cl. 798,

802 (2005), aff'd, 463 F.3d 1314 (Fed. Cir. 2006), cert. denied, 549 U.S. 1321 (2007). In

Doe, the plaintiffs moved for reconsideration of a judgment mandated by the Federal

Circuit following a reversal of the court’s summary judgment decision. In their motion

for reconsideration, the plaintiffs reasserted their claim for holiday pay arguing that the

issue had not been addressed on appeal. The plaintiffs further asserted that the outcome

of the appeal created a change in the law that permitted the reopening of their claim for

overtime pay, yet another type of premium pay.

The court in Doe denied plaintiffs’ motion stating that the law of the case doctrine

precluded further consideration of plaintiffs’ alternative arguments as to overtime pay,

and that the Federal Circuit’s ruling on interlocutory appeal controlled – by necessary

implication – plaintiffs’ claim to holiday pay. Id. The court also cursorily mentioned the

need for scheduling to trigger Sunday premium pay. Id. at 801-02. Without construing

the language of the Sunday premium pay statute, the court reached its conclusion in part

based on the fact that plaintiffs had made no claim that they were scheduled to work

either on Sundays or on holidays. Thus, the court determined that plaintiffs’ claim to

premium pay in general – based on knowledge, encouragement, and inducement – was

precluded by the law of the case doctrine. The Federal Circuit affirmed the finding that

17

plaintiffs were foreclosed from raising alternative arguments for overtime or holiday pay

without addressing the scheduling requirements of the Sunday premium pay statute. Doe,

463 F.3d at 1314.

The factual circumstances before this court now are different from that in Doe

because plaintiff claims that he was regularly scheduled to perform work on Sundays.

Pl.’s MSJ 5-7. Furthermore, plaintiff and the members of the proposed class already

receive other premium pay – including a night pay differential for their self-scheduled

hours worked after 6:00 P.M. Jt. Stip. ¶ 22 (part-time Field Representatives are eligible

for overtime, night, and holiday premium pay); Tr. 35, 42-43. As such, the Doe cases do

not appear to be dispositive of the issue presented here.

When construing the term “employee” in the Sunday premium pay statute, the

Federal Circuit in Fathauer suggested that the phrase “regularly scheduled” could be

understood to be a “normal” schedule of a traditional five-day work week, but could also

refer to a varying part-time work week. Fathauer, 566 F.3d at 1357 (Dyk, J., concurring).

The observation that the phrase “regularly scheduled” could be ambiguous was made in

the particular context of determining whether part-time employees are covered employees

under the Sunday premium pay statute. Id; Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997) (“Our first step in interpreting a statute is to determine whether the language at

issue has a plain and unambiguous meaning with regard to the particular dispute in the

case” (emphasis added)) (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469,

477 (1992); McCarthy v. Bronson, 500 U.S. 136, 139 (1991)). Bound by the findings in

Fathauer, the court now considers a different question, that is – whether part-time Field

Representatives are deemed “regularly scheduled” under the statute and are thus eligible

to receive Sunday premium pay.

To resolve this issue, the court turns to consider “whether the language at issue has

a plain and unambiguous meaning with regard to the particular dispute” in this case.

Robinson, 519 U.S. at 340. “It is well established that ‘when the statute's language is

plain, the sole function of the courts—at least where the disposition required by the text is

not absurd—is to enforce it according to its terms.’” Lamie, 540 U.S. at 534 (quoting

Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000)

(internal quotations omitted)). In determining the meaning of statutory language, the

court looks to the language itself, the specific context in which that language is used, and

the broader context of the statute as a whole. Robinson, 519 U.S. at 341.

The court’s examination of several common dictionaries returned a number of

redundant plain meaning definitions for the terms “regularly” and “scheduled.” See The

American Heritage Dictionary of the English Language 1471, 1557 (4th ed. 2000)

(regular: “customary, usual, or normal,” “occurring with normal [] frequency;” schedule:

“[a] plan for performing work or achieving an objective, specifying the order and allotted

time for each part” or “[t]o plan or appoint for a certain time or date”); Oxford English

18

Dictionary vol. 8 524, 613 (2d ed. 1989) (regularly: “at the proper times; at fixed times or

intervals; without interruption of recurrence; constantly” or “in the usual or customary

manner;” scheduled: “to place (something) on a programme of future events; to arrange

for a (person or thing) to do something or for an event”); Webster’s Third New

International Dictionary 1913, 2028 (2002) (regularly: “[i]n a regular, orderly, lawful, or

methodical way;” scheduled: “[t]o appoint, assign, or designate to do or receive

something at a fixed time in the future”). Based on a consensus of these definitions, the

court construes the phrase “regularly scheduled” to mean the usual plan for performing

work within a set time frame.

But, the court does not look solely to the dictionary definitions of the component

terms of the phrase. Yates v. United States, 135 S. Ct. 1074, 1081-82 (2015). The court

also considers the plain meaning of the phrase “regularly scheduled” in the particular

context of the Sunday premium pay statute. Id. The court finds that the plain meaning of

that phrase – as informed by the dictionary definitions of the component terms – is not

disturbed in the context of the relevant statutory scheme. Nor do the words in the statute

immediately following the phrase “regularly scheduled” alter the court’s interpretation.

Although an “8-hour period of service” refers to a specific length of time, that phrase has

been construed to apply to any amount of time worked that is not overtime. Fathauer,

566 F.3d at 1354 (citing Fathauer, 82 Fed. Cl. at 513); Def.’s Supp’l Br. 3; Tr. 82, 86;

Pl.’s Supp’l Br. 3-4. As such, a “regularly scheduled 8-hour period of service” construed

in the context of the Sunday premium pay statute pertains to the usual plan for

performing work – that is not overtime – within a set time period.

Contrary to defendant’s assertions, the plain language of the statute does not

restrict the act of scheduling work to supervisors only. Def.’s MSJ 9-11. Although there

are varying permutations in the dictionary definitions for the phrase “regularly

scheduled,” there is nothing in any of the examined definitions for the word “scheduled”

that requires particular dates and times to be established by a particular person. Instead,

the term “scheduled” speaks only to work that has been arranged, organized or planned to

occur. It does not speak to particular dates or times that must be arranged; nor does it

speak to who is expected to do the arranging. As the term “scheduled” is modified by the

adverb “regularly,” it contemplates work that is “customarily” or “usually” arranged,

organized, or planned. Thus, the phrase “regularly scheduled” allows that a supervisor

may establish work expectations by day and hour – as defendant contends. But, it also

allows a supervisor to assign work routinely to be performed within a certain time period

– such as on a project-by-deadline basis – by an employee who in turn establishes the

days and hours for project completion, as plaintiff contends.

That the statute does not provide specifics on how detailed a schedule must be, or

who must establish it, to be deemed “regularly scheduled” does not render the statute

ambiguous, but renders it broad. PGA Tour, Inc. v. Martin, 532 U.S. 661, 689 (2001)

(“[T]he fact that a statute can be applied in situations not expressly anticipated by

19

Congress does not demonstrate ambiguity. It demonstrates breadth.”) (citing

Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212, (1998)). As the

Supreme Court has observed, “broad general language is not necessarily ambiguous when

congressional objectives require broad terms.” Diamond v. Chakrabarty, 447 U.S. 303,

315 (1980) (noting the frequency with which the Court has observed that statutes are not

confined to “particular application[s] . . . contemplated by the legislators” (quoting Barr

v. United States, 324 U.S. 83 (1945)).

Insisting that only those employees whose specific hours are set in advance by a

supervisor can meet the statutory requirement of “regularly scheduled,” defendant

effectively seeks to import the “officially ordered or approved” standard from the

overtime premium pay statute into the Sunday premium pay statute. 5 U.S.C.A. §

5542(a); Def.’s MSJ Reply 2. But “there is a basic difference between filling a gap left

by Congress’ silence and rewriting rules that Congress has affirmatively and specifically

enacted.” Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978). Without the

limiting language that Congress used in other sections of the premium pay statutes in the

statutory section now under examination, the court does not infer that the same

limitations apply. Jama v. Immigration & Customs Enf't, 543 U.S. 335, 341 (2005) (“We

do not lightly assume that Congress has omitted from its adopted text requirements that it

nonetheless intends to apply, and our reluctance is even greater when Congress has

shown elsewhere in the same statute that it knows how to make such a requirement

manifest.”). More specifically, because Congress did not include in the Sunday premium

pay statute that same restrictive language that is part of the overtime premium pay statute,

the court does not construe the “regularly scheduled” language as it must construe the

“officially ordered or approved” language. Compare 5 U.S.C.A. § 5546, with 5 U.S.C.A.

§ 5542(a); Doe, 463 F.3d 1314.

As it looks at the statutory scheme as a whole, the court notes that the federal

premium pay statutes include various tailored requirements for specific agencies and

certain types of employees. See 5 U.S.C.A. §§ 5545a (criminal investigators), 5545b

(firefighters), 5546a (Federal Aviation Administration and the Department of Defense).

In contrast, the Sunday premium pay section of the statute is broad in its language and

thus, its potential applicability to the workforce, 5 U.S.C.A. § 5546. The comparatively

unrestricted language of the Sunday premium pay statute leaves room for a variety of

staffing possibilities that could satisfy the “regularly scheduled” statutory requirement.

PGA Tour, Inc., 532 U.S. at 689.

Having determined that the statutory language “regularly scheduled” is broad and

not ambiguous, the court’s inquiry must not go further than the statute, but end here.

King, 135 S. Ct. at 2489; Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (citing

Burlington Northern R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461(1987); Rubin

v. United States, 449 U.S. 424, 430 (1981); TVA v. Hill, 437 U.S. 153, 187 (1978);

quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571(1982)) (“When we find

20

the terms of a statute unambiguous, judicial inquiry is complete except in rare and

exceptional circumstances … where the application of the statute as written will produce

a result ‘demonstrably at odds with the intentions of its drafters.’”). The court considers

next whether plaintiff and the proposed class satisfy the “regularly scheduled”

requirement of the statute.

3. Part-time Field Representatives Are “Regularly Scheduled”

The court understands that to be designated as part-time Field Representatives,

employees must have demonstrated a predictable pattern of hours worked and a sustained

practice of satisfactory performance to have been converted to – and to continue to work

on – a part-time schedule. Jt. Stip. ¶ 17. While working a part-time schedule, plaintiff

and the proposed class members have received, as a matter of routine, surveys that must

be completed prior to established deadlines. Jt. Stip. ¶¶ 16, 26. Plaintiff and the

proposed class members are normally assigned work in advance of the work week but

may set their own hourly schedules to complete their work. This is the usual and

customary way of arranging their work.

The successful completion of that work typically involves working Sunday

hours. Jt. Stip. ¶¶ 28-40; Traub Ex. 33. Defendant posits that – even if Field

Representatives are scheduled sporadically to work on Sundays – such instances still do

not meet the “regularly” test. Tr. 44 (Defendant argues that work scheduled in advance

by a supervisor is not enough; rather, it must be scheduled “regularly.”); Def.’s MSJ

Reply 2. But defendant misses the mark here. Many routine aspects of a Field

Representative’s position involve Sunday work. Jt. Stip. ¶¶ 28-40; Traub Ex. 33

(Historically, 19% of the CPS survey is completed on the first and second Sunday of CPS

week). And the Federal Circuit has found that the term “regularly scheduled” – as used

in the Sunday premium pay statute – does not “require[e] scheduling on every single

Sunday of each month… [r]ather, all that [“regularly scheduled”] requires is that the

scheduling be ‘regular’ as opposed to intermittent.” Armitage v. United States, 991 F.2d

746, 751 (Fed. Cir. 1993).

By performing their required nonovertime work as described, part-time Field

Representatives routinely complete their work within the time period fixed by the Census

Bureau. The court finds that this manner of setting hours and working is sufficient to

bring part-time Field Representatives within the ambit of “regularly scheduled” as

contemplated by the plain meaning of the statute and to render them eligible for Sunday

premium pay. Lamie, 540 U.S. at 534. This finding applies to plaintiff and to other part-

time Field Representatives who performed Sunday work.

Plaintiff’s motion for summary judgment is GRANTED. Defendant’s cross-

motion for summary judgment is DENIED. Part-time Field Representatives are eligible

21

to receive Sunday premium pay for the period of October 28, 2005 to the present and

going forward.

IV. Class Certification

A. Legal Standards

The court addressed the requirements to certify a class when plaintiff first moved

to do so in 2012.2 Gross v. United States, 106 Fed. Cl. 369 (2012). For the sake of

completeness, the court reviews the requirements here.

Pursuant to RCFC 23(a), 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.

RCFC 23(a)(1)-(4).

A class action may be maintained if RCFC 23(a) is satisfied and if:

(1) [not used]; (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 begun by class

members; (C) [not used]; and (D) the likely difficulties in managing a class

action.

2

Plaintiff sought to bring a class action pursuant to RCFC 23. Gross v. United

States, 106 Fed. Cl. 369 (2012). However, plaintiff was unable to meet all of the

requirements set forth in RCFC 23, specifically the numerosity and superiority

requirements. Id. at 385. Additionally, plaintiff failed to satisfy the elements of

commonality and adequacy of representation. Id.

22

RCFC 23(b)(1)-(3). The requirements of RCFC 23 have been described more concisely

as: (i) numerosity, (ii) commonality, (iii) typicality, (iv) adequacy, and (v) superiority.

Barnes v. United States, 68 Fed. Cl. 492, 494 (2005).

The proponent of a class action must satisfy each of the requirements by a

preponderance of the evidence. Bell v. United States, 123 Fed. Cl. 390, 395 (2015); see

also Gross, 106 Fed. Cl. at 373 (citing Messner v. Northshore Univ. Health Sys., 669

F.3d 802, 811 (7th Cir. 2012)). Because the “requirements are in the conjunctive,” the

“failure to satisfy any one of them is fatal to class certification.” Barnes, 68 Fed. Cl. at

494.

B. Discussion

Informed by its earlier decision denying plaintiff’s motion for class certification,

the court considers whether plaintiff satisfies the requirements for class certification.

When the court first addressed this issue in 2012, it found a deficiency in plaintiff’s

proposed class definition:

The definition fashioned by plaintiff is self-executing–it implies that

individuals who opt into the class have already satisfied all of the

requirements of the Sunday premium pay statute and leaves no room for

doubt that those individuals are entitled to join the class and are entitled to

recovery. However, satisfaction of the statutory requirements is an issue that

the court must decide during proceedings on the merits, not during the initial

stage of class certification.

Gross, 106 Fed. Cl. at 373-74.

Thus, the court exercised its discretion and modified the proposed class definition

to include all “part-time Field Representatives and Senior Field Representatives

employed by the Census Bureau from May 26, 2003, to the present who performed

nonovertime work on a Sunday and did not receive Sunday premium pay for that work

under 5 U.S.C. § 5546(a).” Id. at 374; but see amended definition section II.C, supra

(changing accrual date from May 26, 2003 to October 28, 2005). The court then

analyzed whether plaintiff had met the requirements for maintaining a class action. Id. at

373 (citations omitted). The court concluded that plaintiff had not satisfied the

numerosity requirement, the superiority requirement, the predominance component of the

commonality requirement, and the second element of the adequacy requirement.4

4

The court opined that plaintiff likely would satisfy the numerosity and adequacy

requirements upon renewing the motion for class certification. Gross, 106 Fed. Cl. at 377

n.6, 383 n.12.

23

Plaintiff has renewed his motion for class certification and has addressed each

RCFC 23 requirement that the court initially found not to have been met. Pl.’s Renewed

Mot. Defendant opposes plaintiff’s renewed motion to certify a class based on its

interpretation of “a regularly scheduled 8-hour period of service.” Def.’s Opp’n.

The court has interpreted the phrase “a regularly scheduled 8-hour period of

service” in the context of the parties’ summary judgment briefing in plaintiff’s favor. See

section III infra. Thus, the court turns now to evaluate whether plaintiff presently

satisfies the requirements that he did not when he first sought class certification.

1. Numerosity

To prevail on his motion for class certification, plaintiff must satisfy the

numerosity requirement. RCFC 23(a)(1) specifies that a class action is appropriate only

if “the class is so numerous that joinder of all members is impracticable[.]” There is no

set number of potential class members that must exist before a court can certify a class.

Instead, the court must look to the facts of the case. Gen. Tel. Co. of the Nw., Inc. v.

EEOC, 446 U.S. 318, 330 (1980). In particular, the court must consider the number of

potential class members, the geographic dispersal of the potential class members, and the

size of each potential class member's claim. King v. United States, 84 Fed. Cl. 120, 123–

24 (2015); accord Jaynes v. United States, 69 Fed. Cl. 450, 454 (2006).

The court earlier found that plaintiff had not satisfied this requirement because he

had no “reliable estimate of the number of individuals who might become members of

plaintiff’s proposed class,” and the court could not determine “whether the number of

proposed class members [was] sufficiently numerous to render joinder impracticable.”

Gross, 106 Fed. Cl. at 377.

The number of potential class members is viewed as the most important factor of

the numerosity requirement. Id.; see generally 5 Moore, supra, at ¶ 23.22[1][b]. While a

putative class representative need not provide the precise number of prospective class

members, speculation will not suffice. King, 84 Fed. Cl. at 124 (a potential class of

greater than 40 individuals generally will meet the first prong of RCFC 23(a)). Plaintiff,

through discovery, has established that there are more than 3,000 potential class

members. Pl.’s Renewed Mot. 26. The potential class members are numerous.

Also bearing on numerosity – and, thus, the impracticability of joinder – is the

location of the potential class members. Joinder is less practicable when potential class

members are dispersed geographically. Id. at 124–25. The court previously noted that

the geographic dispersal of the potential class members made joinder less practicable.

Gross, 106 Fed. Cl. at 377. Plaintiff now has established that the potential class members

are located in several regions across the country. Indeed, joinder of such a large,

geographically widespread group of claims would not be practical.

24

When plaintiff first moved for certification, the court noted that plaintiff had not

presented any evidence regarding the size of the individual claims. Gross, 106 Fed. Cl. at

377. The size of prospective class members' individual claims is relevant to the

numerosity inquiry because in circumstances where there are numerous prospective

claimants with small claims, a class action allows those individuals to pursue their claims

without incurring litigation costs that would overwhelm their potential recoveries. King,

84 Fed. Cl. at 125; cf. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (noting

that although class certification is not prohibited when numerous potential class members

have large claims, the current class action scheme is aimed at vindicating the rights of

individuals with small claims). With more information after discovery, plaintiff indicates

that the likely size of the individual claims is relatively small. Pl.’s Renewed Mot. 26.

Using the highest yearly average individual claim of $608.00 and multiplying that by an

average tenure of 3.75 years, plaintiff calculates an average yield of $2,280.00 per

potential class member. As such, legal action by individual prospective plaintiffs would

be economically impractical. Id. at 26-27.

The court finds that the number of proposed class members is sufficiently

numerous and geographically dispersed to render joinder impracticable, and each

potential class member’s claim is too modest to pursue independently. Thus, the

numerosity requirement is satisfied.

2. Commonality: Predominance

A determination about commonality involves three inquiries: (1) whether there are

factual or legal issues common to the proposed class, RCFC 23(a)(2); (2) whether there

are common issues that predominate, RCFC 23(b)(3); and (3) whether the government

acted or refused to act on grounds applicable to the entire proposed class, RCFC 23(b)(2).

In analyzing whether the commonality requirement has been satisfied, “the court must,

where necessary, look beyond the pleadings, and seek to develop an understanding of the

relevant claims, defenses, facts and substantive law.” Barnes, 68 Fed. Cl. at 494.

The court must identify a common legal issue and then determine whether that

issue predominates over the issues that are not common to the class. This predominance

inquiry “tests whether proposed classes are sufficiently cohesive to warrant adjudication

by representation” and “is far more demanding” an inquiry than the initial common-issue

question. Amchem Prods., Inc., 521 U.S. at 623–24. Common issues – which apply to

each member of the class – are deemed to predominate over individual issues – for which

each member of the class must present particular evidence – if such issues “are more

substantial than the issues subject only to individualized proof.” Jaynes, 69 Fed. Cl. at

457 (quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)).

25

Plaintiff previously established two of the three components to show

commonality. First, plaintiff showed that the potential class members shared a common

legal issue: the determination of what constitutes a “regularly scheduled 8-hour period of

service” under the Sunday premium pay statute. Gross, 106 Fed. Cl. at 378-79. Second,

plaintiff showed that potential class members were treated similarly by the government.

Id. at 380. However, plaintiff did not establish, to the court’s satisfaction, the third

component, specifically, that the common legal issue predominated over issues that were

not common to the proposed class. Id. at 379-80. The court remarked:

In this case, each putative class member must establish (1) what constitutes

a “regularly scheduled 8-hour period of service”; (2) whether he or she

performed nonovertime work on a Sunday after May 26, 2003, “during a

regularly scheduled 8-hour period of service”; and (3) the amount of Sunday

premium pay to which he or she is entitled. [R]esolution of the first issue

can be accomplished on a classwide basis. However, it has yet to be

determined whether generalized proof is sufficient to resolve the second

issue. The types of proof necessary to establish whether a part-time field

employee performed Sunday work “during a regularly scheduled 8-hour

period of service” depends on how that phrase is defined; depending on the

definition, the proposed class may rely on generalized evidence, or each part-

time field employee may need to present individualized evidence based on

his or her particular circumstances. In other words, the extent of the

individualized inquiries that will be needed in this case is currently unknown.

Id. at 379.

But, the court found that plaintiff had satisfied the typicality requirement. The

court stated that “the claims of each potential class member arise from the same course of

action: the Census Bureau’s failure to pay them Sunday premium pay” and that “all of

the potential class members would make a similar legal argument regarding their

entitlement to Sunday premium pay: that they performed nonovertime work on Sundays

‘during a regularly scheduled 8-hour period of service . . .’” Gross, 106 Fed. Cl. at 381.

In support of his renewed motion, plaintiff asserts that the resolution of each

putative class member’s claim hinges upon one predominate question of law: the

eligibility of part-time Field Representatives to receive Sunday premium pay. Pl.’s

Renewed Mot. 30-32. Defendant responds that plaintiff cannot meet the predominance

element of the commonality requirement because the “court would need to make

numerous, fact-intensive individualized inquiries regarding whether each individual

worked on each Sunday during a ‘regularly scheduled period of work’ taking into

account their job title, their assigned regions and their assigned surveys.” Def.’s Resp.

17.

26

The court now has found that the proposed class may rely on generalized evidence

to prove whether part-time Field Representatives performed nonovertime work on a

Sunday after May 26, 2003, “during a regularly scheduled 8-hour period of service.” See

section III, supra. Thus, an individualized inquiry into each class member’s unique

scheduling circumstances is not necessary. The commonality requirement is satisfied

because plaintiff has demonstrated that a common legal issue predominates over issues

not common to the proposed class.

3. Adequacy

In addition to establishing numerosity, commonality, and typicality, a putative

class representative must establish that he or she will “fairly and adequately protect the

interests of the class.” RCFC 23(a)(4). There are two components to the adequacy

requirement. The first involves an examination of whether conflicts exist between the

putative class representative and the remainder of the proposed class; and the second

involves an assessment of the qualifications and capabilities of proposed class counsel.

Amchem Prods., Inc., 521 U.S. at 625–26 & n. 20; Gen. Tel. Co. of the Sw. v. Falcon,

457 U.S. 147, 157 n. 13 (1982); E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S.

395, 404–05 (1977).

With respect to the first component of the adequacy requirement, the court

previously found that plaintiff had established that his interests were not in conflict with

the interests of the other potential class members. Gross, 106 Fed. Cl. at 381-82. But,

plaintiff failed – at that time – to satisfy the second component of the adequacy prong

because he had not presented evidence about the size of – and the resources available to –

the respective law firms of the proposed class counsel. Id. at 382-83.

The second component of the adequacy requirement focuses on the experience and

competence of proposed class counsel. Before appointing class counsel, the court must

satisfy itself that the appointment of plaintiff's counsel as class counsel would be in the

best interests of the class. RCFC 23(g)(2). In assessing the qualifications and

capabilities of proposed class counsel, the court “may consider any other matter pertinent

to counsel's ability to fairly and adequately represent the interests of the class[,]” RCFC

23(g)(1)(B). The court may look to:

(i) the work counsel has done in identifying or investigating potential

claims in the action;

(ii) counsel's experience in handling class actions, other complex

litigation, and the types of claims asserted in the action;

(iii) counsel's knowledge of the applicable law; and

(iv) the resources that counsel will commit to representing the class[.]

27

RCFC 23(g)(1)(A).

When plaintiff first sought certification of the class, the court found plaintiff’s

counsel to be experienced and knowledgeable. But the court had insufficient evidence

about the resources that counsel could commit to representing the class. Gross, 106 Fed.

Cl. at 382-83. The court anticipated that plaintiff would “have little difficulty in

establishing the adequacy of his attorneys’ resources if he provide[d] the required

information” at such time as he renewed his motion. Gross, 106 Fed. Cl. at 383, n. 12.

The court now considers the evidence before it.

Arlene F. Boop is plaintiff's attorney of record. She is assisted by her partner,

Daniel L. Alterman, and a partner with the law firm of Traub & Traub, P.C., Doris G.

Traub. Plaintiff submitted declarations from Ms. Boop and Ms. Traub with his renewed

motion about the qualifications of, and the resources available to, his counsel. Boop

Supp’l Decl., ECF No. 43-6; Traub Supp’l Decl., ECF No. 43-2. As explained in the

declarations, the firm of Alterman & Boop LLP is comprised of two partners, an

associate, and one paralegal. Boop Supp’l Decl. ¶ 7; Savits Supp’l Decl. ¶1, ECF No. 43-

7. In addition to its own staff – as assisted by Ms. Traub – the firm has identified a large

number of well-qualified candidates available to work on a project by project basis

should the need for more staff arise. Boop Supp’l Decl. ¶ 7-10; Tr. 114. The firm also

has a number of long established credit lines and loan guarantees to cover any unforeseen

costs of litigation. Id.

Defendant challenges the adequacy of plaintiff’s counsel, arguing that a “small

firm” such as that of plaintiff’s counsel “would be hard-pressed to manage a class action

of over 3,000 potential members located throughout the country.” Def.’s Resp. 18-19,

ECF No. 49. In support of its argument defendant looks to the case of Walter v.

Palisades Collection, LLC, Civ. Action No. 06-378, 2010 WL 308978 (E.D. Pa. Jan. 26,

2010). Id.

In Walter, the proposed counsel were a father and daughter in a two partner firm.

The father had been disbarred, and the daughter had been reprimanded for assisting her

father with the unlicensed practice of law. Pl.’s Reply. 14; Tr. 114-15. The firm was

admonished for a “history of dilatoriness” in its handling of the proposed class action.

Id.; Walter, 2010 WL 308978, at *11. The court in Walter found counsel to be

inadequate to represent the proposed class based on facts other than firm size – to include

proposed counsel’s own admission that the firm might have trouble handling the action.

Walter, 2010 WL 308978, at *10-11 (“The Court's decision is arrived at with a heavy

heart.”).

Plaintiff contends, and the court agrees, that this example of the inability of a two-

attorney firm to represent a nationwide class is distinguishable from the facts here.

Plaintiff explains that to date, his counsel has completed three years of voluminous

28

discovery, has negotiated a stipulation of facts, has performed data analysis, has prepared

various filings, and has argued several motions. In so doing, counsel had demonstrated

both the ability and the resource capacity to represent the proposed class. Pl.’s Renewed

Mot. 35; Tr. 113-14. Plaintiff maintains that the size of the firm alone is not a

determinative component of adequacy and points, as support, to the appointment of a sole

practitioner in Jones v. United States, to serve as class counsel. Pl.’s Reply 15 (citing

Jones v. United States, 118 Fed. Cl. 728, 734 (2014)).

Plaintiff has shown, by preponderant evidence, that his counsel can represent the

proposed class adequately, and thus, the adequacy requirement is satisfied.

4. Superiority

Under Rule 23, a class action must be “superior to other available methods for

fairly and efficiently adjudicating the controversy.” RCFC 23(b)(3). A prospective class

representative satisfies this requirement by showing that “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.” Amchem Prods., Inc., 521 U.S. at 615 (quoting FRCP 23 Advisory

Committee Note (1966 Amendment)). In assessing the superiority factor, the court is

“essentially” conducting “a cost/benefit analysis, weighing any potential problems with

the manageability or fairness of a class action against the benefits to the system and [to]

the individual members likely to be derived from maintaining such an action.” Barnes v.

United States, 68 Fed. Cl. 492, 499 (2005). In evaluating superiority, the court considers

the following: (1) “the class members’ interests in individually controlling the

prosecution of separate actions;” (2) “the extent and nature of any litigation concerning

the controversy already begun by class members;” and (3) “the likely difficulties in

managing a class action.” RCFC 23(b)(3).

When plaintiff first sought class certification, he failed to prove that a class action

was superior to other methods for adjudicating claims for Sunday premium pay. Gross,

106 Fed. Cl. at 383-84. The court stated that it was not “possible to ascertain the

difficulties in managing a class in this case” because “a necessary threshold issue–how to

determine eligibility for Sunday premium pay–ha[d] not been resolved . . . .” Id. at 384.

But, the court observed that plaintiff satisfactorily had addressed the second factor – that

there was no existing prior litigation that would prevent this case from proceeding as a

class. Id.

As to the first component of the superiority requirement, the court considers

“whether the class members would pursue their individual claims if the class were not

certified.” Fisher v. United States, 69 Fed. Cl. 193, 205 (2006). The Supreme Court

stated that, “[w]here it is not economically feasible to obtain relief within the traditional

framework of a multiplicity of small individual suits for damages, aggrieved persons may

29

be without any effective redress unless they may employ the class-action device.”

Deposit Guar. Nat'l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 339 (1980); Curry v.

United States, 81 Fed. Cl. 328, 338 (2008) (noting that “one of the main justifications for

class actions” is the existence of numerous claims that “are too small to justify being

brought individually”).

Through discovery, plaintiff now has established that the individual claims of the

putative class members are modest in amount. Because the claims, on average, are less

than $2300 per class member, they are unlikely to be pursued outside of a class action.

Pl.’s Renewed Mot. 27.

As to the third component, that is “the likely difficulties in managing a class

action,” the court must consider “the whole range of practical problems that [might]

render the class action format inappropriate for a particular suit.” Eisen v. Carlisle &

Jacquelin, 417 U.S. 156, 164 (1974). Over the last few years, this court has certified

several classes in civilian pay cases. See, e.g., King, 84 Fed. Cl. at 120; Curry, 81 Fed.

Cl. at 328; Barnes, 68 Fed. Cl. at 499. Moreover, because the earlier raised concern

about a potential class member’s eligibility for Sunday premium pay has been resolved

and can be determined on a classwide basis, the court can perform a cost/benefit analysis

of class certification.

Plaintiff has indicated that the process of identifying eligible claimants and

determining the claim amounts is a straightforward matter of examining the payroll

information obtained through discovery. Pl.’s Renewed Mot. 39; Savits Supp’l Decl.;

Savits Exs. 1-13; Tr. 102-07. Thus, the small value of the individual claims, and the

availability of generalized evidence are factors that tip in favor of certifying the class.

Plaintiff has shown that a class action is superior to other methods for fairly and

efficiently adjudicating the Census Bureau field employees’ Sunday premium pay claims.

Because plaintiff has met his outstanding burden of proof as to numerosity,

commonality, adequacy, and superiority, the motion for class certification is GRANTED.

V. Conclusion

For the foregoing reasons, defendant’s motion for partial dismissal is GRANTED,

plaintiff’s claims for Sunday premium pay that pre-date October 28, 2005 are

DISMISSED, plaintiff’s motion for summary judgment is GRANTED, defendant’s

cross-motion for summary judgment is DENIED, and plaintiff’s motion for class

certification is GRANTED.

Consistent with the findings set forth above, the class is defined to include all:

part-time Field Representatives and Senior Field Representatives employed by the

Census Bureau – from October 28, 2005 to the present – who performed nonovertime

30

work on a Sunday and did not receive Sunday premium pay for that work under 5 U.S.C.

§ 5546(a).

The court appoints Arlene F. Boop as class counsel joined by Doris G. Traub and

Daniel L. Alterman who may serve in the role “of counsel.”

On or before December 5, 2016, the parties shall file a joint status report

proposing a plan to satisfy the notice requirements of Rule 23(c)(2) and addressing

further notice proceedings.

IT IS SO ORDERED.

s/ Patricia Campbell-Smith

PATRICIA CAMPBELL-SMITH

Chief Judge

31