Oztimurlenk, R.N. v. United States

In the United States Court of Federal Claims

No. 19-1715C

(Filed: October 20, 2022)

)

SENOL OZTIMURLENK, R.N., et al., )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

Jacob Y. Statman, Snider & Associates, LLC, Baltimore, MD, for Plaintiff. Of counsel was

Jason I. Weisbrot.

Liridona Sinani, Commercial Litigation Branch, Civil Division, United States Department

of Justice, Washington, D.C., for Defendant. With her on the briefs were Brian M. Boynton,

Acting Assistant Attorney General, Martin F. Hockey, Jr., Acting Director, and Elizabeth M.

Hosford, Assistant Director. Of counsel were Mark Frassinelli and Barbara Burke, Office of

General Counsel, United States Department of Veterans Affairs, Washington, D.C.

OPINION AND ORDER

SOLOMSON, Judge.

Plaintiffs, current and former nurses employed at the Northport Veterans Affairs

Medical Center in Northport, New York, have sued to recover overtime pay allegedly

owed for work performed outside regularly scheduled tours of duty. Pending before the

Court is Plaintiffs’ motion for class certification pursuant to Rule 23 of the Rules of the

Court of Federal Claims (“RCFC”). Defendant, the United States, acting by and through

the Department of Veterans Affairs (the “VA”), opposes the motion.

For the reasons set forth below, the Court DENIES Plaintiffs’ motion without

prejudice.

I. PROCEDURAL HISTORY

On November 5, 2019, Plaintiffs filed suit in this Court to recover overtime

compensation pursuant to 38 U.S.C. § 7453. ECF No. 1. On February 19, 2020, Plaintiffs

filed their first amended complaint. ECF No. 9. On May 26, 2020, the government filed

its answer. ECF No. 12. On September 22, 2020, with permission from the Court,

Plaintiffs filed their second amended complaint. ECF No. 18 (“Sec. Am. Compl.”). On

December 16, 2020, the government filed its answer to Plaintiffs’ second amended

complaint. ECF No. 21.

As detailed in the operative complaint and the parties’ joint preliminary status

report, Plaintiffs seek to litigate this case as a class action. Sec. Am. Compl. ¶¶ 1, 241;

ECF. No. 13-4. To that end, the parties engaged in class discovery from August 21, 2020,

to March 22, 2021. See ECF No. 15; Minute Order (Jan. 4, 2021); Minute Order (Feb. 11,

2021). On April 28, 2021, Plaintiffs filed a motion for class certification. ECF No. 27 (“Pl.

Mot.”). On June 25, 2021, the government filed its response brief. ECF No. 32 (“Def.

Resp.”). On August 9, 2021, Plaintiffs filed their reply brief. ECF No. 35 (“Pl. Reply”).

Plaintiffs’ motion for class certification proposes the following class definition:

All persons who are past or present licensed practical and/or

registered nurses employed by the VA, Northport Medical

Center in Northport, New York; and who since November 5,

2013, worked at least 15 minutes of their unpaid 30-minute

meal period performing patient care and clinical duties

without compensation.

Pl. Mot. at 6.

On December 20, 2021, the Court held oral argument on Plaintiffs’ pending

motion. See ECF No. 39 (“Tr.”).

II. JURISDICTION

In this case, the Plaintiffs assert claims for overtime back pay and other monetary

relief pursuant to 38 U.S.C. § 7453 and the Tucker Act, 28 U.S.C. § 1491(a). As in Mercier

v. United States, “[t]here is no dispute that this Court has jurisdiction over . . . the

complaint, which assert[s] claims for backpay and other monetary relief based on alleged

violations of 38 U.S.C. § 7453” because “[t]he statutory and regulatory provisions that

form the bases for [Plaintiffs’] claims are clearly ‘money-mandating,’ as they require the

VA ‘to pay employees certain amounts under certain circumstances.’” 114 Fed. Cl. 795,

799 (2014) (quoting Price v. Panetta, 674 F.3d 1335, 1339 (Fed. Cir. 2012)), rev’d in part on

other grounds, 786 F.3d 971 (Fed. Cir. 2015); see also Austin v. United States, 124 Fed. Cl. 410,

2

415 (2015) (citing Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)); Maine Cmty.

Health Options v. United States, -- U.S. --, 140 S. Ct. 1308, 1329 (2020) (discussing “money-

mandating provisions”). Accordingly, the Court concludes that it possesses jurisdiction

to decide Plaintiffs’ claims and its pending class certification motion.

III. LEGAL AND FACTUAL BACKGROUND

A. VA Nurse Pay: Law and Policies

Nurses (and other medical professionals) employed by the VA are exempt from

the overtime pay provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et

seq., and the Federal Employees Pay Act (FEPA), 5 U.S.C. § 5542, et seq. Instead, VA

nurses are compensated for hours worked in excess of defined limits pursuant to

overtime pay provisions of Title 38 of the United States Code.1 Specifically, nurses are

entitled to “additional pay” pursuant to 38 U.S.C. § 7453(e), which provides, in relevant

part:

(1) A nurse performing officially ordered or approved hours

of service in excess of 40 hours in an administrative

workweek, or in excess of eight consecutive hours, shall

receive overtime pay for each hour of such additional

service. The overtime rates shall be one and one-half

times such nurse’s hourly rate of basic pay.

(2) For the purposes of this subsection, overtime must be of

at least 15 minutes duration in a day to be creditable for

overtime pay.

38 U.S.C. § 7453(e) (emphasis added). Thus, a nurse is not entitled to any overtime pay

unless the overtime has been “officially ordered or approved.” Id.

The Federal Circuit has held that overtime work is compensable as “officially

ordered or approved” where the work has been “induced” — i.e., even if it was “not

expressly directed.” Mercier v. United States, 786 F.3d 971, 981–82 (Fed. Cir. 2015)

(reversing dismissal of claims for induced overtime). In Mercier, the Federal Circuit

1 “Concerned that the VA had been unable to attract qualified medical professionals under the

civil service system’s regulations and rates of pay, Congress enacted provisions specifically

relating to the hiring, promotion, pay, hours and conditions of employment, retirement, and

discipline of health care professionals employed by the [VA].” Am. Fed’n of Gov’t Emps. Local 3884

v. Fed. Lab. Rels. Auth., 930 F.2d 1315, 1318 (8th Cir. 1991). “The Title 38 system provides the

Secretary of the Department of Veterans Affairs . . . greater flexibility in hiring, firing and

compensating employees than otherwise available under the Title 5 system.” Curry v. United

States, 66 Fed. Cl. 593, 595 (2005).

3

interpreted 38 U.S.C. § 7453(e) without deferring to the VA’s view of the statute for the

simple reason that the agency had not issued any relevant formal regulatory

interpretation or informal guidance. Id. at 972 & n.1 (“[T]he agency has not enacted any

regulation interpreting the statute as mandating any particular procedure that must be

followed to qualify for overtime pay. . . . [T]he handbook . . . fails to describe any

procedure under which nurses’ overtime may be explicitly ordered or approved.”). In

concluding that a showing of inducement sufficed to obtain overtime pay, the Federal

Circuit distinguished the Title 38 overtime provision at issue here from the FLSA’s

requirements. 2 According to the Federal Circuit, “FLSA’s standard compensates

overtime work which the employer merely ‘knows or has reason to believe’ the employee

is performing, as well as overtime the employer induces.” Mercier, 786 F.3d at 981

(emphasis added) (citing 29 C.F.R. § 785.11 (2015)). In contrast, “the narrower phrase

‘ordered or approved’ [in Title 38] suggests that its coverage is not so broad as FLSA’s”;

management’s “mere knowledge” of overtime is insufficient for the purposes of 38 U.S.C.

§ 7453(e). Id. (first citing Doe v. United States, 372 F.3d 1347, 1361 (Fed. Cir. 2004); and then

citing Bilello v. United States, 174 Ct. Cl. 1253, 1257 (1966) (per curiam)). “Inducement” of

overtime, however, is sufficient to trigger the government’s liability. Id.

VA policies have operationalized 38 U.S.C. § 7453(e) and defined its terms. 3 An

“administrative workweek” is “[a] period of seven consecutive calendar days, which

coincide with the calendar week, Sunday through Saturday.” U.S. Dep’t of Veterans

Affs., Handbook 5011 pt. II, ch. 3 at II-25, II-31a, II-40 (2018) [hereinafter VA Handbook

5011]. Nurses have the option of working (1) a “traditional work schedule” (eight hours

per day, forty hours per week “with fixed starting and quitting times”), or (2) an

2 Mercier followed precedent that had interpreted identical statutory language (i.e., “officially

ordered or approved”) from the FEPA, 5 U.S.C. § 5542 et seq., as including inducement. Mercier,

786 F.3d at 980–82 (“[N]either this panel nor [another case’s] court could overrule Anderson’s

interpretation that inducement satisfies FEPA’s ‘officially ordered or approved’ requirement. . . .

We presume that Congress was aware of that existing interpretation of 5 U.S.C. § 5542 when it

enacted 38 U.S.C. § 7453, and that it intended for induced overtime to also be considered ‘ordered

or approved’ under the later statute.” (citing Anderson v. United States, 136 Ct. Cl. 365 (1956) (en

banc))).

3 The VA “has not issued a comprehensive set of regulations implementing the . . . personnel

provisions in [T]itle 38[;] [i]nstead, [the VA] has set forth its interpretation of the [T]itle 38

personnel provisions in the form of manuals, directives, and handbooks[.]” James v. Von

Zemenszky, 284 F.3d 1310, 1318–19 (Fed. Cir. 2002). These handbooks are “are akin to

‘interpretations contained in policy statements, agency manuals, and enforcement guidelines,’

[and] are not entitled to Chevron deference.” Von Zemenszky, 284 F.3d at 1319 (quoting Christensen

v. Harris Cnty., 529 U.S. 576, 587 (2000)). Rather, the VA handbooks are afforded the lesser

Skidmore deference “proportional to [their] ‘power to persuade.’” Id. (alteration in original)

(quoting United States v. Mead Corp., 533 U.S. 218, 235 (2001)) (referring to Skidmore v. Swift & Co.,

323 U.S. 134 (1944)).

4

“[a]lternative work schedule,” which “consists of either a flexible work schedule or

compressed work schedule.” Id. at II-31a.

In 2017, presumably in response to Mercier, 786 F.3d at 980–82, the VA revised its

Pay Administration handbook to implement 38 U.S.C. § 7453(e), as follows:

(1) Overtime resulting from either a solicitation initiated by

management or at the request of the employee is

considered to be voluntary overtime.

(2) Employees are authorized to work voluntary overtime

when the overtime has been approved either verbally or

in writing, in advance, by an appropriate management

official or his/her designee, as determined in accordance

with VA Handbook 5011 and local policy.

(3) When an employee has not requested authorization in

advance for overtime from an appropriate management

official or his designee, an employee may submit a

written request for after-the-fact authorization. The

written request should be submitted as soon as possible,

typically within the pay period when the voluntary

overtime was worked, to an appropriate management

official or his/her designee. In such cases, the decision

to authorize the overtime is at the discretion of

management. Employees who work overtime without

advance authorization are not guaranteed to ultimately

receive authorization or compensation for the overtime.

U.S. Dep’t of Veterans Affs., Handbook 5007 pt. V, ch. 2 at V-3 to -3a (2021) (cleaned up)

[hereinafter VA Handbook 5007]. 4

Accordingly, at least pursuant to the latest version of VA Handbook 5007, a nurse

employed by the VA may be entitled to overtime pay either where it is (a) pre-approved,

or (b) approved “after-the-fact.” There are three conditions for pre-approved overtime:

(1) the nurse must have worked more than forty hours in a single week or more than

eight consecutive hours; (2) the overtime work must have been officially ordered or

4 VA Handbook 5007 is online at: https://www.va.gov/vapubs/viewPublication.asp?Pub_ID

=1270&FType=2. The text of the referenced Handbook reflects numerous revisions (e.g., via

scattered bracket symbols not necessarily enclosing any text, sentences and phrases in various

colors, pages seemingly added after the fact between other pages, and a variety of revision dates,

depending upon the page). The Court nevertheless has quoted and cited the latest version of the

Handbook, removing extraneous symbols and notations in the process.

5

approved in writing or verbally in advance by a superior; and (3) the overtime work must

have lasted for at least 15 minutes. VA Handbook 5007 at V-3 to -3a; see also 38 U.S.C.

§ 7453(e). For “after-the-fact” approval, a nurse must submit a written request but such

approval is discretionary and “not guaranteed.” VA Handbook 5007 pt. V, ch. 2 at V-3a. 5

B. Plaintiffs’ Claims and Class Certification Motion

Plaintiffs allege they are current and former registered nurses or licensed practical

nurses employed by the VA at the Northport Veterans Affairs Medical Center in

Northport, New York, since November 5, 2013. Sec. Am. Compl. ¶¶ 1, 214, 241; Pl. Mot.

at 6–7. Plaintiffs were appointed to their positions pursuant to 38 U.S.C. §§ 7401(1)

and (3). 6 Sec. Am. Compl. ¶ 214; Pl. Mot. at 7. The crux of Plaintiffs’ allegations is that

they were “expected, required, and induced” to work without compensation “on a

recurring and involuntary basis . . . additional hours in excess of fifteen minutes in a

calendar day, in excess of forty (40) hours in an administrative workweek, in excess of

eight (8) consecutive hours in a workday, or in excess of their daily work requirements

. . . during their unpaid meal period to ensure that patient care was not compromised.”

Sec. Am. Compl. ¶¶ 223; Pl. Mot. at 7, 11 (“Their claims are limited to work performed

during their thirty-minute unpaid meal period.”).

According to Plaintiffs, the VA, “including nurse supervisors and/or other VA

personnel with the authority to order or approve overtime work and pay, had knowledge

that Plaintiffs . . . worked additional hours . . . providing clinical care.” Sec. Am. Compl.

¶ 223; Pl. Mot. at 14 (“Supervisors admitted that they had knowledge of nurses working

through meal periods.”). Plaintiffs further allege that the VA’s “expectation,

requirement, and inducement to work those additional hours” during their breaks

“constitute . . . order or approval for the additional hours worked.” Sec. Am. Compl.

5 Plaintiffs acknowledge the existence of VA Handbook 5007 but assert that the statute at issue

“does not require overtime order or approval to be in any particular form, and the VA has not

promulgated” any related procedures. Pl. Mot. at 8. Plaintiffs cite the Federal Circuit’s decision

in Mercier, but otherwise do not address the updated VA Handbook 5007 language upon which

the government relies. Accordingly, Plaintiffs assume that showing “inducement” is sufficient

to sustain their claims for all periods of time. Plaintiffs’ failure to address the updated VA

Handbook 5007 is notable particularly because Plaintiffs elsewhere acknowledge that VA

Handbook 5007 is entitled to deference. Pl. Mot. at 8 n.1 (citing Von Zemenszky, 284 F.3d at 1318–

19). Indeed, Plaintiffs themselves rely extensively on provisions from various VA handbooks.

See, e.g., Sec. Am. Comp. ¶¶ 216–20, 259–68 (citing VA Handbook 5007 and VA Handbook 5011

as “promulgat[ing] policies pertaining to Pay Administration for Title 38 employees”). As

explained infra, see sub-subsection IV.A.1.a, this Court for the purposes of the pending motion

need not resolve which Plaintiffs or claims, if any, are subject to the revised overtime guidance in

the current version of VA Handbook 5007.

6Registered nurses are covered by 38 U.S.C. § 7401(1). Licensed practical nurses are covered by

38 U.S.C. § 7401(3).

6

¶¶ 55, 253, 269. Plaintiffs claim that the VA’s “willful[] fail[ure] to pay” them for their

overtime work constitutes violations of 38 U.S.C. § 7453 and “VA regulations and

policies.” Sec. Am. Compl. ¶¶ 254, 255, 270, 271. In sum, Plaintiffs claim that they “have

been financially damaged . . . and are entitled to recover . . . relief that includes, but is not

limited to, any and all unpaid overtime back pay, and interest on such overtime back pay,

for all additional hours worked.” Sec. Am. Compl. ¶¶ 256, 272.

Plaintiffs now move to litigate their claims as a class action pursuant to RCFC 23.

Pl. Mot. at 6.

C. Class Action Certification Requirements in the Court of Federal Claims

Class action cases are “an exception to the usual rule that litigation is conducted

by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338, 348 (2011) (quotations omitted). Pursuant to RCFC 23, “[o]ne or more

members of a class may sue as representatives on behalf of all members” if they satisfy

certain requirements. RCFC 23(a). When requested via motion, the Court “must

determine by order whether to certify the action as a class action.” RCFC 23(c)(1)(A).

Such an order “must define the class and the class claims, issues, or defenses, and must

appoint class counsel.” RCFC 23(c)(1)(B). If a class is certified, the Court gives notice to

class members that, among other things, “the court will include in the class any member

who requests inclusion.” RCFC 23(c)(2)(B)(v) (emphasis added); see also RCFC

23(c)(2)(B)(iv) (“a class member may enter an appearance . . . if the member so desires”

(emphasis added)); Rules Committee Notes on RCFC 23, 2002 revision. In other words,

RCFC 23 provides for opt-in class actions only. The “objectives of the [RCFC] class action

procedure” include efficient and economical litigation. Bright v. United States, 603 F.3d

1273, 1285, 1288 (Fed. Cir. 2010) (citing cases); see RCFC 23(b)(3) (“A class action may be

maintained if . . . a class action is superior to other available methods for fairly and

efficiently adjudicating the controversy.”).

Before applying RCFC 23 to the facts of this case, the Court first reviews and

explains each of the Rule’s class certification requirements. In that regard,

“[c]ertification of an opt-in class pursuant to RCFC 23 requires several elements, often

summarized by this Court as the following: (1) numerosity, (2) commonality,

(3) typicality, (4) adequacy, and (5) superiority.” Horvath v. United States, 149 Fed. Cl.

735, 743 (2020) (citing Barnes v. United States, 68 Fed. Cl. 492 (2005)); see also Bright, 603

F.3d at 1278 n.2. Those requirements are defined, generally, as follows:

(i) numerosity — that the proposed class is so large that

joinder is impracticable; (ii) commonality — that there are

common questions of law or fact that predominate over

questions affecting individual prospective class members and

that the government has treated the prospective class

7

members similarly; (iii) typicality — that [the putative class

representative’s] claims are typical of the proposed class;

(iv) adequacy — that [the putative class representative’s] will

fairly represent the proposed class; and (v) superiority — that

a class action is the fairest and most efficient method of

resolving the suit.

Common Ground Healthcare Coop. v. United States, 137 Fed. Cl. 630, 637 (2018) (emphasis

added) (citing Toscano v. United States, 98 Fed. Cl. 152, 155 (2011)). RCFC 23(a) contains

the first four requirements, while RCFC 23(b)(3) contains not only the superiority

requirement, but also an additional predominance requirement. 7 The predominance

requirement necessitates that the Court consider whether “the questions of law or fact

common to class members predominate over any questions affecting only individual

members.” RCFC 23(b)(3) (emphasis added). Predominance is often analyzed

concomitantly with the commonality requirement. 8

To understand these requirements in practice, cases applying Rule 23 of the

Federal Rules of Civil Procedure (“FRCP”) are instructive. Lohmann v. United States, 154

Fed. Cl. 355, 361 (2021) (“RCFC 23, which borrowed criteria from its counterpart in the

Federal Rules of Civil Procedure (with some important distinctions), governs class

actions in this Court.”). The following table compares RCFC 23(a) and 23(b) to their FRCP

counterparts, in relevant part (differences are highlighted by bolded, italicized text in the

first column):

7 The numerosity requirement is contained in RCFC 23(a)(1). The commonality requirement is

contained in RCFC 23(a)(2) but is linked to predominance and superiority in RCFC 23(b)(3). The

typicality requirement is contained in RCFC 23(a)(3). The adequacy requirement is contained in

RCFC 23(a)(4).

8 See, e.g., Common Ground Healthcare, 137 Fed. Cl. at 638-40 (performing “predominance inquiry”

under commonality); Elec. Welfare Tr. Fund v. United States, 160 Fed. Cl. 462, 468 (2022)

(considering predominance under “[t]he commonality requirement of RCFC 23”); In re Upstream

Addicks & Barker (Tex.) Flood-Control Reservoirs, 157 Fed. Cl. 189, 198–99 (2021) (considering

RCFC 23(b)(3) predominance requirement under commonality); Horvath, 149 Fed. Cl. at 743

(citing Barnes, 68 Fed. Cl. 492, for the proposition that predominance is considered as part of

commonality); 1 William B. Rubenstein et al., Newburg and Rubenstein on Class Actions § 3:27 (6th

ed. 2022) [hereinafter 1 Rubenstein] (“[C]ourts will often treat the application of Rules 23(a)(2)

and 23(b)(3) together, though typically articulating a finding as to each prong.”).

8

RCFC 23 FRCP 23

(a) Prerequisites. One or more members (a) Prerequisites. One or more members

of a class may sue as representative of a class may sue or be sued as

parties on behalf of all members only representative parties on behalf of all

if: members only if:

(1) the class is so numerous that (1) the class is so numerous that

joinder of all members is joinder of all members is

impracticable; impracticable;

(2) there are questions of law or fact (2) there are questions of law or fact

common to the class; common to the class;

(3) the claims or defenses of the (3) the claims or defenses of the

representative parties are typical of representative parties are typical of

the claims or defenses of the class; the claims or defenses of the class;

and and

(4) the representative parties will fairly (4) the representative parties will fairly

and adequately protect the interests and adequately protect the interests

of the class. of the class.

(b) Class Actions Maintainable. (b) Types of Class Actions.

A class action may be maintained if A class action may be maintained if

RCFC 23(a) is satisfied and if: Rule 23(a) is satisfied and if:

(1) [not used]; (1) prosecuting separate actions by or

against individual class members

would create a risk of:

(A) inconsistent or varying

adjudications with respect to

individual class members that

would establish incompatible

standards of conduct for the

party opposing the class; or

(B) adjudications with respect to

individual class members that,

as a practical matter, would be

dispositive of the interests of

the other members not parties

to the individual adjudications

or would substantially impair

or impede their ability to

protect their interests;

9

(2) the United States has acted or (2) the party opposing the class has

refused to act on grounds generally acted or refused to act on grounds

applicable to the class; and that apply generally to the class, so

that final injunctive relief or

corresponding declaratory relief is

appropriate respecting the class as

a whole; or

(3) the court finds that the questions of (3) the court finds that the questions of

law or fact common to class law or fact common to class

members predominate over any members predominate over any

questions affecting only individual questions affecting only individual

members, and that a class action is members, and that a class action is

superior to other available methods superior to other available methods

for fairly and efficiently for fairly and efficiently

adjudicating the controversy. The adjudicating the controversy. The

matters pertinent to these findings matters pertinent to these findings

include: include:

(A) the class members’ interests in (A) the class members’ interests in

individually controlling the individually controlling the

prosecution of separate actions; prosecution or defense of

separate actions;

(B) the extent and nature of any (B) the extent and nature of any

litigation concerning the litigation concerning the

controversy already begun by controversy already begun by

class members; or against class members;

(C) [not used]; and (C) the desirability or undesirability

of concentrating the litigation of

the claims in the particular

forum; and

(D) the likely difficulties in (D) the likely difficulties in

managing a class action. managing a class action.

The above comparison demonstrates that RCFC 23 “is modeled largely on the

comparable FRCP.” Rules Committee Notes on RCFC 23, 2022 Revision. RCFC’s

numerosity, commonality, typicality, adequacy, superiority, and predominance

requirements all have nearly matching language in FRCP 23. Because “RCFC 23 is

patterned after [FRCP] 23 . . . , with the notable exception that RCFC 23 allows only opt-

in class actions . . . , case law analyzing FRCP 23 may be used to construe RCFC 23.”

Silver Buckle Mines, Inc. v. United States, 132 Fed. Cl. 77, 96 n.16 (2017) (citing Curry v.

United States, 81 Fed. Cl. 328, 331–32 & n.10 (2008)); see also Barnes, 68 Fed. Cl. at 494 &

n.1 (“Owing to the fact that the language of RCFC 23 and [FRCP] 23 is, in many regards,

identical, this opinion relies upon numerous decisions that have construed the relevant

portions of the latter rule.”). Accordingly, RCFC 23’s “threshold requirements” are

10

generally “applicable to all class actions.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

613–16 (1997) (applying FRCP 23).

On the other hand, “there are significant differences between [RCFC 23 and

FRCP 23].” Rules Committee Notes on RCFC 23, 2002 Revision. As illustrated above,

the text of RCFC 23(a) and 23(b) differ from their analogue in FRCP 23 in several

substantive ways. While FRCP 23 allows for a class consisting of plaintiffs or defendants, 9

RCFC 23 only allows for a class of plaintiffs, as the United States is always the defendant

in this Court. See RCFC 4(a) (regarding service of “a complaint on the United States”);

RCFC 10(a) (“complaint must name all the parties . . . with the United States designated

as the party defendant”). 10 Another key difference is that RCFC 23 “does not

accommodate, inter alia, the factual situations redressable through declaratory and

injunctive relief contemplated under FRCP 23(b)(1) and (b)(2)” because “the relief

available in this court is generally confined to individual money claims against the

United States.” Rules Committee Notes on RCFC 23, 2002 Revision (explaining that “the

situations justifying the use of a class action [in the Court of Federal Claims] are

correspondingly narrower than those addressed in FRCP 23”). 11 Finally, in contrast to

FRCP 23(b)’s disjunctive requirements, RCFC 23(b)’s requirements are conjunctive. 12

9 See FRCP 23(a) (“One or more members of a class may sue or be sued as representative parties[.]”

(emphasis added)); see also, e.g., Mary Kay Inc. v. Reibel, 327 F.R.D. 127, 129–31 (N.D. Tex. 2018)

(noting that “[f]ederal courts have . . . long permitted plaintiffs to move for certification of a

defendant class after suing a putative class representative” but rejecting defendant’s motion to

certify a defendant class); 2 William B. Rubenstein et al., Newburg and Rubenstein on Class Actions

§ 5:3 (6th ed. 2022) [hereinafter 2 Rubenstein] (“[D]efendant classes have been employed

irregularly but in a variety of situations.”).

10See RCFC 23(a) (“One or more members of a class may sue as representative parties[.]”);

RCFC 23(b)(2) (“[T]he United States has acted or refused to act on grounds generally applicable to

the class[.]” (emphasis added)).

11 This Court previously has explained that “[t]he . . . plain language of 28 U.S.C. § 1491(a)(2)

demonstrates that this Court lacks broad jurisdiction to issue equitable relief.” Sergent’s Mech.

Sys., Inc. v. United States, 157 Fed. Cl. 41, 47–48 (2021) (citing Kanemoto v. Reno, 41 F.3d 641, 644–

45 (Fed. Cir. 1994) (“The remedies available in [the Court of Federal Claims] extend only to those

affording monetary relief; the court cannot entertain claims for injunctive relief or specific

performance, except in narrowly defined, statutorily provided circumstances[.]”)). Thus, “[t]he

limiting language of 28 U.S.C. § 1491(a)(2) stands in stark contrast to that of 28 U.S.C. § 1491(b)(2),

which provides the Court with broad injunctive relief power, albeit with respect to a narrower

class of actions defined in § 1491(b).” Sergent’s Mech. Sys., 157 Fed. Cl. at 48 n.5 (“The type of

relief the Court may order thus varies depending on whether an action is brought pursuant to 28

U.S.C. § 1491(a) or § 1491(b).”).

12 As Horvath explains:

In requiring both that the defendant acted on generally applicable grounds and

that a question common to class members predominates, RCFC 23 is — by its terms

11

The most significant difference between the two rules, however, reaches beyond

RCFC 23(a) and 23(b) class certification requirements; it is that, as noted supra, “unlike

the FRCP, the [RCFC] contemplates only opt-in class certifications, not opt-out classes.”

Rules Committee Notes on RCFC 23, 2002 Revision. 13 Opt-out class actions are “viewed

as inappropriate here because of the need for specificity in money judgments against the

United States, and the fact that the court’s injunctive powers — the typical focus of an

opt-out class — are more limited than those of a district court.” Id. Because opt-in class

actions are fundamentally different from the opt-out class actions FRCP 23

contemplates, cases involving the latter rule must be applied with care in this Court.14

In any event, “Rule 23 does not set forth a mere pleading standard.” Dukes, 564

U.S. at 350; see also Jones v. United States, 118 Fed. Cl. 728, 733 (2014) (“In determining

whether [RCFC 23 requirements] . . . are met, the court must, where necessary, look

beyond the pleadings, and seek to develop an understanding of the relevant claims,

defenses, facts and substantive law.”). Rather, plaintiffs seeking class certification bear

the burden of affirmatively establishing that the RCFC 23 requirements are “in fact” met.

Dukes, 564 U.S. at 350. In determining whether Plaintiffs in this case have carried their

burden, the Court must conduct a “rigorous analysis” and thus must probe beyond the

pleadings to assess Plaintiffs’ showing and proffered evidence. Id. at 350–51. Indeed,

— more restrictive than its sister-rule, FRCP 23, which provides a disjunctive test:

it requires that a defendant act either on generally applicable grounds, or that

common legal or factual questions predominate for a class action to be maintained.

See FRCP 23(b)(2)–(3). This Court's rule is conjunctive, requiring both conditions.

149 Fed. Cl. at 745. In addition, the comparison table above also shows that RCFC 23(b)(3)(C)

differs from FRCP 23(b)(3)(C). While the latter is concerned with concentrating litigation in one

forum for efficiency purposes, that consideration is inapposite in this Court because, again, the

defendant is always the United States here. Moreover, at least for claims exceeding $10,000, this

Court typically has exclusive jurisdiction. 28 U.S.C. §§ 1346(a), 1491(a)(1).

13Bright, 603 F.3d at 1277 n.1 (Fed. Cir. 2010) (noting that “[u]nder the [RCFC], in order to become

a class member, an individual must affirmatively respond to a Rule 23(c)(2) notice to ‘opt in’ by

requesting inclusion in the action” while “[u]nder the [FRCP], all members of a class are included

in the action and are bound by the judgment unless they ‘opt out’ by affirmatively requesting

exclusion” (citing RCFC 23(c)(2)–(3) and FRCP 23(c)(2)–(3))); see also Silver Buckle Mines, 132 Fed.

Cl. at 101 (“Only one type of class action may be maintained in the Court of Federal Claims — an

opt-in class action.” (first citing RCFC 23(c)(2)(B)(iv)–(v); and then citing Rules Committee Notes

on RCFC 23, 2002 revision)).

14In Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985), the Supreme Court explained that the

“goals” of “[m]odern plaintiff class actions” include “permitting litigation of a suit involving

common questions when there are too many plaintiffs for proper joinder” and to “permit

plaintiffs to pool claims which would be uneconomical to litigate individually.” As this decision

will explain infra, see subsection III.C.1, the former consideration, for example, does not make

much sense in an opt-in class action.

12

Rule 23 requirements “must be proven by a preponderance of the evidence.” Marcus v.

BMW of N. Am., LLC, 687 F.3d 583, 595 (3d Cir. 2012); see also Common Ground Healthcare,

137 Fed. Cl. at 637 (“The class action’s proponent must satisfy each of the requirements

by a preponderance of the evidence.”). 15 “Mere speculation is insufficient.” 687 F.3d at

596. Because RCFC 23’s requirements are all stated in the conjunctive, the failure of

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

494.

At the end of the day, though, “[s]o long as this rigorous analysis is conducted, the

Court has wide discretion in deciding whether the requirements of RCFC 23 have been

satisfied.” Horvath, 149 Fed. Cl. at 743–44 (“Although RCFC 23 differs from FRCP 23 in

important respects, both use the same permissive (‘may’), not mandatory (‘shall’),

language in allowing a court to certify a class.”).

1. Numerosity [RCFC 23(a)(1)]

RCFC 23(a)(1) — the “numerosity” requirement — directs that we consider

whether a putative class is “so numerous that joinder of all members is impracticable.”

This requirement, at least in the opt-out class action context of FRCP 23, is supposed to

“promote[] three core objectives.” Marcus, 687 F.3d at 594–95.

First, the numerosity requirement helps to “ensure[] judicial economy. . . by

freeing federal courts from the onerous rule of compulsory joinder inherited from the

English Courts of Chancery and the law of equity.” Marcus, 687 F.3d at 594 (citing 1

William B. Rubenstein et al., Newburg on Class Actions § 1:12 (5th ed. 2011)). 16 In that

regard, courts “no longer have to conduct a single, administratively burdensome action

with all interested parties compelled to join and be present” and courts are “spar[ed] . . .

the burden of having to decide numerous, sufficiently similar individual actions seriatim.”

15Plaintiffs assert, contradictorily, that “[t]he party moving for class certification bears the burden

of proving, by a preponderance of the evidence, that each of these requirements are met” and that

“[a]t this juncture the trial court must assume the truth of the factual allegations in the

Complaint[.]” Pl. Mot. at 17 (citing Barnes, 68 Fed. Cl. at 495). Plaintiffs’ former statement is

correct; the latter is not. Notably, Barnes was decided more than five years before Dukes. This

Court relies on pre-Dukes decisions only to the extent they are consistent with Dukes and its

progeny. A number of courts “continue” to apply standards for class certification that predate

Dukes, 1 Rubenstein §§ 1:12, 3:11 (citing cases), but Dukes “clearly has heightened the scrutiny and

application” of at least some class certification requirements by demanding a “rigorous analysis.”

7A Charles Alan Wright et al., Federal Practice and Procedure § 1763.1 (4th ed. 2022) [hereinafter 7A

Wright] (citing Dukes, 564 U.S. at 351, and other cases).

16See also 1 Rubenstein §§ 1:12, 3:11 (“Where many individuals have similar claims, there may be

a flood of litigation. . . . Yet the vast quantity of individual litigants makes joinder impracticable.

The class action solves this problem[.]” (citations omitted)). The opt-in class action, however,

does not eliminate the joinder problem.

13

Id. at 594–95. Second, RCFC 23(a)(1) “creates greater access to judicial relief, particularly

for those persons with claims that would be uneconomical to litigate individually.” Id.

(citing Phillips Petroleum Co., 472 U.S. at 809). 17 Third, the numerosity “rule prevents

putative class representatives and their counsel, when joinder can be easily

accomplished, from unnecessarily depriving members of a small class of their right to a

day in court to adjudicate their own claims.” Id. at 594–95 (citing 7A Charles Alan Wright

et al., Federal Practice and Procedure § 1762 (3d ed. 2005)); see 7A Wright § 1762.

In general, when deciding whether joinder would be impracticable, courts weigh

a long and hazy list of factors. One “non-exhaustive list” of factors includes: “judicial

economy, the claimants’ ability and motivation to litigate as joined plaintiffs, the financial

resources of class members, the geographic dispersion of class members, the ability to

identify future claimants, and whether the claims are for injunctive relief or for damages.”

In re Modafinil Antitrust Litig., 837 F.3d 238, 252–53 (3d Cir. 2016). These factors also may

include whether putative class plaintiffs do “not all resid[e] within a reasonable distance

of this court, or any other factor which would demonstrate substantial hardship arising

from their individual participation in th[e] suit.” Fewlass v. Allyn & Bacon, Inc., 83 F.R.D.

161, 165 (D. Mass. 1979). Such other factors include, for example, whether “potential class

members may be reluctant to personally appear and prosecute their claims because of

fears of reprisal from the defendant.” Id. 18 A putative class with a large number of

17See also In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 534 (3d Cir. 2004) (“[A] class action

facilitates spreading of the litigation costs among the numerous injured parties and encourages

private enforcement of the statutes.”); 1 Rubenstein § 3:11 (“Rule 23 enables litigation where it

might otherwise not occur because of the impracticality of individuals joining together to pool

their resources. It is not necessarily efficient for the litigation system itself to enable litigation in

this manner, but small-claims class actions serve social efficiency goals[.]”). Another line of cases

holds that “the size of the individual claims” should be considered as part of Rule 23(b)(3)’s

superiority requirement, rather than Rule 23(a)(1)’s numerosity requirement. Bell v. United States,

123 Fed. Cl. 390, 396–97 (2015) (first quoting Rules Committee Notes on FRCP 23, 1966 revision;

then citing Rasmuson v. United States, 91 Fed. Cl. 204, 216–17 (2010), Barnes, 68 Fed. Cl. at 499–500,

and other cases); see also 2 Rubenstein § 4:65 (“A primary purpose of class action lawsuits,

particularly money damages claims aggregated under [FRCP] 23(b)(3), is to enable the litigation

of claims that are worth too little money to be pursued individually.”). This Court is not

convinced that it must choose between numerosity and superiority when considering the size of

the individual claims. Class certification requires this Court to determine both that joinder is

impracticable under RCFC 23(a)(1) and that, as described infra, a class action is superior under

RCFC 23(b)(3). If the small size of individual claims makes joinder impracticable such that a class

action is superior, then that consideration is relevant to both requirements. See 7A Wright § 1762

(“The interrelationship of the numerosity prerequisite and some of the other class-action

requirements,” including those in 23(b)(3), “should be noted.”).

18See 7A Wright § 1762 (“[N]o single factor . . . automatically will satisfy Rule 23(a)(1). Rather, all

factors will be considered by the court in determining whether impracticability exists. . . . [S]ince

the question whether Rule 23(a)(1) has been satisfied depends on the facts of each case, the trial

court’s decision represents an exercise of discretion[.]” (footnotes omitted)); 5 James Wm. Moore,

14

plaintiffs is more likely to have a strong impracticability argument under some factors

than a putative class with a small number of plaintiffs. The precise size of the putative

class, standing alone, is not dispositive; rather the core question is whether “joinder of all

members is impracticable.” RCFC 23(a)(1). 19

To what extent any of those concerns make sense in the context of an opt-in class

action process remains to be seen — a subject the Court tackles in more detail below.

Impracticability of joinder itself is arguably a nonsensical question in an opt-in class

action, which may be viewed as nothing more than a permissive joinder procedure. See

Amchem Prods., Inc., 521 U.S. at 615 (explaining that “Rule 23(b)(3) ‘opt-out’ class actions

superseded the former ‘spurious’ class action, so characterized because it generally

functioned as a permissive joinder (‘opt-in’) device”). 20 Indeed, some numerosity

considerations that may apply to class certifications under FRCP 23 clearly should carry

less weight or are virtually irrelevant to class certifications in this Court. For example,

some courts, “[f]or purposes of establishing numerosity,” have viewed “smaller classes

[as] more readily certified when the relief sought is injunctive relief[.]” Young v. Pierce,

544 F. Supp. 1010, 1028 (E.D. Tex. 1982) (reasoning that the benefits of such relief “would

inure not only to the known class, but also to a future class of indefinite size”); see also,

e.g., Jackson v. Danberg, 240 F.R.D. 145, 147–48 (D. Del. 2007) (“[T]he numerosity

requirement has been relaxed in cases like this where injunctive and declaratory relief is

sought by the class.”); Modafinil, 837 F.3d at 253. That makes sense for an opt-out class

where, “[p]roperly considered, the plaintiff class [includes] . . . unknown future class

members.” Young, 544 F. Supp. at 1028. 21 In such a case, “[o]f course, joinder of such

persons is inherently impracticable.” Id. at 1028–29. In this Court, however, that

consideration makes littles sense because, generally, the available relief is monetary, not

injunctive, and the class members must opt in. 22 Similarly, plaintiffs’ geographic

Moore’s Federal Practice § 23:22 (3d ed. 2022) [hereinafter 5 Moore] (“Whether joinder of all class

members would be ‘impracticable’ has no fixed measuring criteria[.]”).

19See, e.g., 1 Rubenstein § 3:11–12 (“[T]he Rule’s core requirement [in FRCP 23(a)(1)] is that joinder

be impracticable. . . . [I]t is impossible to predict with certainty a ‘magic number’ that will satisfy

the Rule 23(a)(1) prerequisite in every case.”); 7A Wright § 1762 (“[C]aution should be exercised

in relying on a case as a precedent simply because it involves a class of a particular size. A variety

of factors . . . may contribute to the court’s decision under Rule 23(a)(1)[.]”).

20 The Court addresses this point infra, Section IV.B.

21 See also 5 Moore § 23.22[f] (“Class-action plaintiffs seeking injunctive or declaratory relief

frequently seek to define a class to include people who might be injured in the future. . . . [or

request a relief that] would benefit people not included in the class[.]”).

22On the other hand, even in district court where plaintiffs may seek injunctive relief, that does

not mean that plaintiffs “will have an easier time satisfying Rule 23(a)(1) than plaintiffs seeking

monetary damages.” Mielo v. Steak 'n Shake Operations, Inc., 897 F.3d 467, 486–87 (3d Cir. 2018).

To the contrary, “[w]hether a plaintiff seeks injunctive or monetary relief, [the] Rule 23(a)(1)

burden remains the same.” Id. Thus, “Modafinil simply . . . suggests that when a court is

15

dispersion (i.e., their distance from the court) seems irrelevant for the Court of Federal

Claims, which is one of just a few National Courts — so called because of their nationwide

jurisdiction. 23 Indeed, “[t]his Court has nationwide jurisdiction to hear cases and find

facts anywhere in the United States.” Marine Indus. Constr., LLC v. United States, 2021 WL

3619919, at *4 (Fed. Cl. July 23, 2021) (citing 28 U.S.C. § 173); see also 28 U.S.C. §§ 798(a),

2505 (“Any judge of the United States Court of Federal Claims may sit at any place within

the United States to take evidence and enter judgment.”).

While the “numerosity requirement” necessitates “that there be a legally definable

class that can be ascertained through reasonable effort[,] . . . the fact that plaintiffs do not

know the exact number of class members does not preclude the granting of class status.”

Jones, 118 Fed. Cl. at 733 n.2 (2014) (citing cases). 24 Several judges of this Court have held

that “[t]he number of potential class members is considered to be the most important

factor of the numerosity requirement.” Common Ground Healthcare, 137 Fed. Cl. at 638

(citing cases); Brown v. United States, 126 Fed. Cl. 571, 578 n.3 (2016) (indicating that the

Court of Federal Claims has found potential class sizes of 23, 25, 135, 150, and 152

determining whether [plaintiffs] ha[ve] satisfied [their] burden of establishing whether joinder

would be impracticable, the type of relief sought . . . may be one factor that a court takes into

consideration” but “[i]t will always be up to the [trial] court to explain how the form of relief has

impacted its analysis.” Id.

23 Charlson Realty Co. v. United States, 384 F.2d 434, 445 (Ct. Cl. 1967) (“The Court of Claims is a

national court and receives petitions from all parts of the country.”); King v. United States, 27 Ct.

Cl. 529, 537 (1892) (explaining that “the Court of Claims . . . is not a local but a national court with

jurisdiction throughout the United States”). The National Courts also include our appellate

tribunal (the Federal Circuit) as well as the Court of International Trade (“CIT”). See, e.g., South

Corp. v. United States, 690 F.2d 1368, 1371 (Fed. Cir. 1982) (“As a court of nationwide geographic

jurisdiction, created and chartered with the hope and intent that stability and uniformity would

be achieved in all fields of law within its substantive jurisdiction, we begin by adopting as a basic

foundation the jurisprudence of the two national courts which served not only as our

predecessors, but as outstanding contributors to the administration of justice for a combined total

of 199 years, the Court of Claims and the Court of Customs and Patent Appeals.”); Rhone Poulenc,

Inc. v. United States, 880 F.2d 401, 402 (Fed. Cir. 1989) (noting that the CIT “is a national court

under Article III of the Constitution”).

24But see Scott Dodson, An Opt-in Option for Class Actions, 115 Mich. L. Rev. 171, 191–92 (2016)

(“In the past, numerosity has not generally been a difficult criterion to satisfy. . . . But in today’s

age of stringent attention to the certification requirements, including the Supreme Court's

admonition that the class must offer ‘significant proof’ of compliance, a number of courts have

required proof of numerosity beyond what common sense might otherwise suggest.” (footnotes

omitted) (quoting Dukes, 564 U.S. at 353)); Mielo, 897 F.3d at 484 (“In recent years the numerosity

requirement has been given ‘real teeth.’” (quoting Robert H. Klonoff, The Decline of Class Actions,

90 Wash. U. L. Rev. 729, 768 (2013))).

16

members sufficient to satisfy the numerosity requirement).25 As indicated above,

however, the count of putative class plaintiffs does not determine per se whether the

proposed class checks the RCFC 23(a)(1) box. Fewlass, 83 F.R.D. at 165 (“The question of

whether joinder is impracticable is not strictly one of numbers[.]”). Rather, the count of

potential class members speaks to the practicability of joining all of them.

2. Commonality [RCFC 23(a)(2)] and Predominance [RCFC 23(b)(3)]

As in Dukes, the true “crux of this case is commonality — the rule requiring a

plaintiff to show that ‘there are questions of law or fact common to the class.’” 564 U.S. at

349 (quoting FRCP Rule 23(a)(2)). “Commonality requires the plaintiff to demonstrate

that the class members ‘have suffered the same injury’” such that the resulting claims

“depend upon a common contention . . . of such a nature that it is capable of classwide

resolution.” Id. at 349–50 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S.

147, 157 (1982)). A common contention is capable of classwide resolution where

“determination of its truth or falsity will resolve an issue that is central to the validity of

each one of the claims in one stroke.” Id. at 350.

Putative class members’ claims could have similarities but nevertheless fail to

qualify for class certification because they do not identify a central question that is

resolvable in one stroke. “[M]erely . . . suffer[ing] a violation of the same provision of

law” or “[r]eciting [common] questions is not sufficient.” Dukes, 564 U.S. at 349–50. For

example, Title VII of the Civil Rights Act 26 “can be violated in many ways” and, thus,

“[q]uite obviously, the mere claim by employees of the same company that they have

suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to

believe that all their claims can productively be litigated at once.” Id.; see Lohmann, 154

Fed. Cl. at 369 (“Merely alleging that proposed class members ‘have all suffered a

violation of the same provision of law,’ however, is not sufficient.” (quoting Dukes, 564

U.S. at 350)).

Dukes instructs that this Court must look beyond the assertions in the class motion

to see whether class action adjudication will provide a common answer to a central,

common question. In Dukes, the Supreme Court recognized that “proof of commonality

necessarily overlaps with respondents’ merits contention that Wal–Mart engages in a

pattern or practice of discrimination.” 564 U.S. at 352. That was the case “because, in

resolving an individual’s Title VII claim, the crux of the inquiry is ‘the reason for a

25See also 5 Moore § 23.22[b] (“[T]he most important factor is the absolute size of the proposed

class . . . . [A large class size] may, by itself, establish that joining all class members would be

impracticable.”); 7A Wright § 1762; cf. 1 Rubenstein § 3:12 (“[A] class of 40 or more members

raises a presumption of impracticability of joinder[.]”).

26Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 241, 253–66 (codified as amended

at 42 U.S.C. § 2000e et seq.).

17

particular employment decision[.]’” Id. (quoting Cooper v. Fed. Rsrv. Bank of Richmond, 467

U.S. 867, 876 (1984)). Because “respondents wish[ed] to sue about literally millions of

employment decisions at once,” the Supreme Court concluded that they were required

to demonstrate “some glue holding the alleged reasons for all those decisions together.”

Id. Otherwise, “it will be impossible to say that examination of all the class members’

claims for relief will produce a common answer to the crucial question why was I

disfavored.” Id. 27 The Dukes respondents pointed to just a single “corporate policy,” but

that policy established only that Wal-Mart “allow[ed] discretion by local supervisors over

employment matters” — which, “[o]n its face, of course, . . . is just the opposite of a

uniform employment practice that would provide the commonality needed for a class

action[.]” Dukes, 564 U.S. at 355 (emphasis omitted) (concluding that the policy was one

“against having uniform employment practices” (emphasis omitted)).

Thus, “[w]hat matters to class certification . . . is not the raising of common

‘questions’ — even in droves — but rather, the capacity of a class-wide proceeding to

generate common answers apt to drive the resolution of the litigation. Dissimilarities

within the proposed class are what have the potential to impede the generation of

common answers.” Dukes, 564 U.S. at 350 (second alteration in original) (quoting Richard

A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132

(2009)); see also, e.g., Howard v. Cook Cnty. Sheriff’s Off., 989 F.3d 587, 608–09 (7th Cir. 2021)

(noting a workplace was not “homogenous,” so the need to examine where each plaintiff

worked meant employer liability was not a common question). In other words,

“[c]ommonality requires that a proposed class action presents a common question that is

capable of a common legal answer.” Monk v. Wilkie, 978 F.3d 1273, 1277 (Fed. Cir. 2020)

(emphasis omitted). At the class certification stage, a court need not decide what the

common answer is, but the movant(s) must show that a common answer is possible. See

Dukes, 564 U.S. at 359.28

On top of RCFC 23(a)(2)’s requirement for a common answer to a common

question, RCFC 23(b)(3) requires the Court to look across the full set of material questions

the proposed class action raises to determine whether the common issues predominate.

Thus, pursuant to RCFC 23(b)(3), the Court must “find[] that the questions of law or fact

common to class members predominate over any questions affecting only individual

27See also Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (“Merits questions

may be considered to the extent — but only to the extent — that they are relevant to determining

whether the Rule 23 prerequisites for class certification are satisfied.” (citing Dukes, 564 U.S. at

351 n.6)).

28After Dukes, some courts have continued to certify a class so long as there is “[e]ven a single

[common] question,” see 1 Rubenstein § 3:20 (alterations in original) (quoting Dukes, 564 U.S. at

359), but that part of the opinion was quoting and responding to a comment from the dissent, see

Dukes, 564 U.S. at 359 (quoting 564 U.S. at 376 n.9 (Ginsburg, J., dissenting)).

18

members” (emphasis added). Senior Judge Firestone succinctly explained the

predominance requirement as follows:

The Supreme Court . . . has established the standards to be

applied in determining whether common questions

predominate. In Comcast Corp. v. Behrend, the Court held that

in order to establish that common questions of law or fact

predominate over individual questions, a party must show

“that damages are capable of measurement on a classwide

basis.” Otherwise, “[q]uestions of individual damage

calculations will inevitably overwhelm questions common to

the class.” In Tyson Foods, Inc. v. Bouaphakeo, the Supreme

Court explained that “the predominance inquiry asks

whether the common, aggregation-enabling, issues in the case

are more prevalent or important than the non-common,

aggregation-defeating, individual issues.”

Colonial Chevrolet Co. v. United States, 2016 WL 11641741, at *3 (Fed. Cl. Apr. 6, 2016)

(citations omitted) (first quoting Comcast Corp. v. Behrend, 569 U.S. 27, 34–35 (2013); and

then quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 452–53 (2016)); see also Amchem

Prods., 521 U.S. at 623 & n.18 (explaining that the “predominance inquiry tests whether

proposed classes are sufficiently cohesive to warrant adjudication by representation”).

In performing a predominance analysis, courts must “give careful scrutiny to the

relation between common and individual questions in a case.” Tyson Foods, 577 U.S. at

453; see also Amgen, 568 U.S. at 467–68 (noting that the requirement of predominance is

not satisfied if “individual questions . . . overwhelm questions common to the class”).

“An individual question is one where members of a proposed class will need to present

evidence that varies from member to member, while a common question is one where

the same evidence will suffice for each member[.]” Tyson Foods, 577 U.S. at 453 (internal

quotation marks omitted); see also Sellers v. Rushmore Loan Mgmt. Servs., LLC, 941 F.3d

1031, 1040 (11th Cir. 2019) (“[C]ertification is inappropriate when ‘after adjudication of

the classwide issues, plaintiffs must still introduce a great deal of individualized proof or

argue a number of individualized legal points to establish most or all of the elements of

their individualized claims.’” (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir.

2004), abrogated on other grounds by Cherry v. Dometic Corp., 983 F.3d 1296 (11th Cir. 2021))).

The predominance consideration “is a qualitative rather than a quantitative

concept” and “[i]t is not determined simply by counting noses: that is, determining

whether there are more common issues or more individual issues, regardless of relative

importance.” Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). “If resolving a

common issue will not greatly simplify the litigation to judgment or settlement of claims

of hundred [sic] or thousands of claimants, the complications, the unwieldiness, the

19

delay, and the danger that class treatment would expose the defendant or defendants to

settlement-forcing risk are not costs worth incurring.” Parko, 739 F.3d at 1085.

Although the predominance requirement is found in RCFC 23(b), the issue is

tightly correlated with the commonality issue of RCFC 23(a)(2) as noted above. 29 Indeed,

the commonality requirement may be viewed as “subsumed by the predominance

requirement.” Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d 141, 148 (3d Cir. 2008)

(internal quotation marks omitted); see also In re Warfarin Sodium Antitrust Litig., 391 F.3d

516, 528 (3d Cir. 2004) (“We have previously noted that the Rule 23(b)(3) predominance

requirement, which is far more demanding, incorporates the Rule 23(a) commonality

requirement.”); Parko, 739 F.3d at 1085 (“Predominance of issues common to all class

members, like the other requirements for certification of a suit as a class action, goes to

the efficiency of a class action as an alternative to individual suits.”). Even if this Court

does not go so far as to say predominance swallows commonality, “[t]he commonality

and predominance requirements are closely linked[,]” . . . [and] the Rule 23(b)(3)

predominance requirement is ‘far more demanding than the commonality requirement’

found in Rule 23(a).” Ferreras v. Am. Airlines, Inc., 946 F.3d 178, 185 (3d Cir. 2019) (internal

quotation marks omitted) (quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305,

311 (3d Cir. 2008)); see also Comcast Corp., 569 U.S. at 34 (“If anything, Rule 23(b)(3)’s

predominance criterion is even more demanding than Rule 23(a).” (citing Amchem Prods.,

521 U.S. at 623–24)). That means, of course, that “[i]f the commonality requirement

cannot be met, then the more stringent predominance requirement obviously cannot be

met either.” Ferreras, 946 F.3d at 185 (citing Amchem Prods., 521 U.S. at 623–24).

3. Typicality [RCFC 23(a)(3)] & Adequacy [RCFC 23(a)(4)]

While the above-discussed class certification requirements examine the putative

class and its claims as a whole, the typicality and adequacy requirements instead focus

on the proposed representative parties and their claims. 30 A failure to satisfy

commonality, for example, suggests the proposed class has a fundamental defect likely

rooted in the nature of the claims and their required proof. Failure to satisfy typicality or

adequacy, in some circumstances, may mean only that a proposed class needs to revise

its selected representatives. Nevertheless, satisfying commonality will likely dispose of

the typicality requirement as well. And, if a proposed class satisfies commonality (i.e.,

the link across putative class members) and typicality (i.e., the link between proposed

class representatives and putative class members), then the proponents of the class

probably satisfy adequacy. The Supreme Court has explained the close relationship

between commonality, typicality, and adequacy:

29 See supra note 8.

30 RCFC 23(a)(3)–(4) (requiring that “the claims or defenses of the representative parties are typical

. . . of the class . . . and the representative parties will fairly and adequately protect the interests of

the class” (emphasis added)); 1 Rubenstein § 3:18.

20

The commonality and typicality requirements of Rule 23(a)

tend to merge. Both serve as guideposts for determining

whether under the particular circumstances maintenance of a

class action is economical and whether the named plaintiff’s

claim and the class claims are so interrelated that the interests

of the class members will be fairly and adequately protected

in their absence. Those requirements therefore also tend to

merge with the adequacy-of-representation requirement,

although the latter requirement also raises concerns about the

competency of class counsel and conflicts of interest.

Dukes, 564 U.S. 350 n.5 (quoting Falcon, 457 U.S. at 157–158 n.13); see also In re Whirlpool

Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 852–53 (6th Cir. 2013) (“Th[e]

[typicality] requirement insures [sic] that the representatives’ interests are aligned with

the interests of the represented class members so that, by pursuing their own interests,

the class representatives also advocate the interests of the class members.”).

A typicality analysis therefore resembles a commonality analysis except with a

focus on the representative parties. The claims of the representative and class members

must “aris[e] from the same governmental action and [be] premised upon a common

theory of recovery.” Geneva Rock Prods., Inc. v. United States, 100 Fed. Cl. 778, 790 (2011)

(named plaintiff’s claim had the same “essential characteristics” as class members’ claims

because both the named plaintiff and other class members owned property affected by

the government’s notice and both alleged that the notice effected a taking of their

property); see also Y&J Props., Ltd. v. United States, 134 Fed. Cl. 465, 468 (2017) (“The key

to the typicality element is whether all class members are challenging the same conduct

and relying on the same legal theories.”). While “typicality does not require identicalness

of claims,” Lohmann, 154 Fed. Cl. at 371 (citing Barnes, 68 Fed. Cl. at 498), it does require

that “each class member’s claim arises from the same course of events, and each class

member makes similar legal arguments to prove the defendant’s liability.” Lohmann, 154

Fed. Cl. at 371 (quoting Gross v. United States, 106 Fed. Cl. 369, 381 (2012)).

The adequacy requirement continues the class certification inquiry into whether

“the named plaintiffs are appropriate representatives of the class whose claims they wish

to litigate.” Dukes, 564 U.S. at 349. RCFC 23(a)(4) requires that “the representative parties

will fairly and adequately protect the interests of the class.” Thus, a “class representative

must be part of the class and ‘possess the same interest and suffer the same injury’ as the

class members.” Amchem Prods., 521 U.S. at 625–26 (quoting E. Tex. Motor Freight Sys., Inc.

v. Rodriguez, 431 U.S. 395, 403 (1977), and discussing FRCP 23(a)(4) specifically). The

“adequacy inquiry” then has the purpose of “uncover[ing] conflicts of interest between

named parties and the class they seek to represent.” Id. (citing Falcon, 457 U.S. at 157–

158, n.13). Adequacy of representation is measured by two standards. In re Drexel

21

Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992). “First, class counsel must be

‘qualified, experienced and generally able’ to conduct the litigation. Second, the class

members must not have interests that are ‘antagonistic’ to one another.” Id. (quoting

Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968)); see also In re Upstream Addicks

& Barker, 157 Fed. Cl. at 200 (“Adequacy asks both whether proposed class counsel is

qualified and capable of representing the class and whether conflicts exist between the

putative class representatives and the remaining class members.” (citing Geneva Rock

Prods., 100 Fed. Cl. at 790)). 31

As with numerosity, RCFC’s typicality and adequacy requirements do not

translate well from the parallel FRCP requirements. In particular, the opt-in nature of

this Court’s class actions means the protection of, and fairness to, absent class members

is not a concern for the obvious reason that absent class members are not bound by any

judgment. Silver Buckle Mines, 132 Fed. Cl. at 101 (“It is well settled that in an opt-in class

action, only those parties who affirmatively choose to join the class are bound by the

outcome. Accordingly, a party that chooses not to participate in a class action in the Court

of Federal Claims does not lose any legal rights as a result of that decision; whatever

happens in the class action has no bearing on parties who do not participate.” (citations

omitted)). This Court still must consider, however, alongside the other requirements,

“whether the representative plaintiff’s claim is typical of the putative class members’

claims.” Horvath, 149 Fed. Cl. at 749 (citing Curry, 81 Fed. Cl. at 335–36).

4. Superiority [RCFC 23(b)(3)]

“In the superiority analysis, a court determines whether a class action is the best

vehicle for the litigation of the plaintiffs’ claims.” Cole v. Gene by Gene, Ltd., 322 F.R.D.

500, 507–08 (D. Alaska 2017), aff’d, 735 F. App’x 368 (9th Cir. 2018). RCFC 23(b)(3) directs

us to evaluate the following factors: (1) “the class members’ interests in individually

controlling the prosecution of separate actions,” RCFC 23(b)(3)(A); (2) “the extent and

nature of any [already-pending] litigation concerning the controversy,” RCFC 23(b)(3)(B);

and (3) “the likely difficulties in managing a class action,” RCFC 23(b)(3)(D). 32

31 In truth, “commonality and typicality tend to merge with the requirement of adequate

representation, although the latter factor also brings into play any concerns about the competency

of class counsel and any conflicts of interest that may exist.” In re Whirlpool, 722 F.3d at 852–53

(citing Dukes, 131 S. Ct. at 2551 n.5); cf. Dodson, supra note 24, at 193 (“[O]pt-in membership is

itself sufficiently probative that adequacy generally should be more easily satisfied in an opt-in

class[.]”). The Court has no concerns with proposed class counsel and no party has identified any

potential conflicts of interest.

32The Supreme Court has instructed that these factors should be employed for both “the

predominance and superiority criteria.” Amchem Prods., 521 U.S. at 613–16.

22

The United States Court of Appeals for the Sixth Circuit has helpfully explained

the superiority inquiry as follows:

To determine whether a class action is the superior method

for fair and efficient adjudication, the district court should

consider the difficulties of managing a class action. The

district court should also compare other means of disposing

of the suit to determine if a class action is sufficiently effective

to justify the expenditure of the judicial time and energy that

is necessary to adjudicate a class action . . . . Additionally, the

court should consider the value of individual damage

awards, as small awards weigh in favor of class suits.

Pipefitters Loc. 636 Ins. Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618, 630–31 (6th Cir.

2011) (citations and internal quotation marks omitted); see also In re Whirlpool, 722 F.3d at

861 (“Use of the class method is warranted particularly because class members are not

likely to file individual actions — the cost of litigation would dwarf any potential

recovery.”). Courts also consider, of course, the non-exhaustive factors set forth in Rule

23(b)(3) itself. Colonial Chevrolet Co., 2016 WL 11641741, at *5 (citing RCFC 23(b)(3)(A)–

(D)); Amchem Prods., 521 U.S. at 615–16.

Where “issues of causation and damages are highly individualized,” a case

“would not be well-served by a class action.” Robertson v. Monsanto Co., 287 F. App’x 354,

362 (5th Cir. 2008) (per curiam). The question of damages may make a case particularly

“ill-suited for class-wide adjudication.” Id. In Steering Committee v. Exxon Mobil Corp.,

461 F.3d 598, 602 (5th Cir. 2006), for example, the United States Court of Appeals for the

Fifth Circuit explained that damages claims arising out of a single incident were

nevertheless not well-suited for a class action where such damages were “not subject to

any sort of formulaic calculation[,]” since “each individual plaintiff suffered different

alleged periods and magnitudes of exposure and suffered different alleged symptoms as

a result.” Where “each class member has to litigate numerous and substantial separate

issues to establish his or her right to recover individually, a class action is not ‘superior.’”

Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1192 (9th Cir. 2001) (finding “formidable

complexities . . . inherent in” the case’s claims meant the plaintiff did not “persuade” the

Court of class action’s superiority); see, e.g., Schmidtberger v. W. Refin. Retail, LLC, 2021 WL

5024714, at *27 (C.D. Cal. Sept. 28, 2021) (rejecting certification in part because “the class

members would be required to ‘establish the reason for their missed breaks’ and would

‘face the inevitable delay imposed by waiting for the resolution of [possibly] thousands

of individual factual claims in the class action’” (alteration in original) (quoting Brown v.

Fed. Express, 249 F.R.D. 580, 587–88 (C.D. Cal. 2008))); Vargas v. Quest Diagnostics Clinical

Labs., 2021 WL 5989958, at *10 (C.D. Cal. Dec. 2, 2021).

23

IV. DISCUSSION — THE COURT DENIES PLAINTIFFS’ MOTION TO CERTIFY

THE PROPOSED CLASS

To resolve the pending class certification motion, this Court primarily focuses on

the RCFC 23 requirements of commonality, predominance, and typicality. 33 The Court

then considers superiority and numerosity, particularly with regard to how those class

certification requirements apply in the context of an opt-in class action. In analyzing the

class certification requirements as applied to the claims and facts in this case, this Court

follows the Dukes “rigorous analysis” standard.

Plaintiffs contend — citing Barnes, 68 Fed. Cl. at 495 — that “the trial court must

assume the truth of the factual allegations in the Complaint” for the purposes of their

class certification motion and RCFC 23. Pl. Mot. at 17; see also Pl. Reply at 3–4 (“[T]his

Court should assume the truth of the facts alleged in the complaint, and provided in

Plaintiff’s Motion[.]”). Plaintiffs are correct that, in Barnes, Judge Allegra wrote that in

“apply[ing] the requirements of RCFC 23, . . . the court must assume the truth of the

factual assertions contained in the complaint.” Barnes, 68 Fed. Cl. at 495 (citing E. Tex.

Motor Freight, 431 U.S. at 405–06). The undersigned is unsure of what, precisely, Judge

Allegra meant, as East Texas Motor Freight does not appear to express such a view. 34 In

any event, the Supreme Court has thoroughly rejected the contention that a party seeking

class certification is relieved of proving with record evidence that class certification is

warranted: “Rule 23 does not set forth a mere pleading standard. A party seeking class

certification must affirmatively demonstrate his compliance with the Rule — that is, he

must be prepared to prove that there are in fact sufficiently numerous parties, common

questions of law or fact, etc.” Dukes, 564 U.S. at 350–52 (quoting and discussing Falcon,

457 U.S. at 160–61); see also Parko, 739 F.3d at 1085 (holding that “[m]ere assertion by class

counsel that common issues predominate is not enough” and that a court must receive

and consider evidence before deciding class certification). Following Dukes, this issue

really isn’t up for debate, as Plaintiffs all but conceded at oral argument. Tr. 34:12–14 (“I

think we have to provide evidence which demonstrates the preponderance of a class

existing.”). 35

33Dodson, supra note 24, at 194 (explaining that “[o]pt-in classes do not inherently support” the

commonality, predominance, or typicality requirements).

34East Texas Motor Freight concerned the presentation of evidence supporting class requirements

during trial. 431 U.S. at 403. The Supreme Court held that certification was not warranted based

on the evidence. Id. at 403–05 (“In short, the trial court proceedings made clear that [proposed

class representatives] were not members of the class” and would not protect class interests.).

Moreover, the plaintiffs in that case had not even moved for class certification at trial, which was

one of the central reasons the Supreme Court reached its conclusion. Id. at 405. East Texas Motor

Freight has no bearing on the present case.

35See, e.g., In re E.I. duPont de Nemours & Co. C-8 Personal Injury Litig., 2022 WL 4149090, at *6 (6th

Cir. Sept. 9, 2022) (“[T]he Supreme Court has explained that certification requires a rigorous

24

A. Plaintiffs’ Motion Fails to Demonstrate Commonality, Predominance, and

Typicality

1. Commonality

Plaintiffs assert, as they must, that “there are . . . basic questions of law and fact

that apply to the entire [putative] class.” Pl. Mot. at 20; see also Pl. Reply at 4. According

to Plaintiffs, the three basic questions are: (1) “[w]hether the class member nurses

performed their duties during their unpaid meal period”; (2) “[w]hether the VA induced

nurse class members to perform these duties during their unpaid meal period due to VA

policies, patient health and safety concerns, and professional responsibility requirements”; and

(3) “[w]hether the VA failed to properly compensate class members under 38 U.S.C.

§ 7453.” Pl. Mot. at 20 (emphasis added); see also Pl. Reply at 4 (summarizing questions).

This decision refers to those questions, respectively, as Class Question 1, Class

Question 2, and Class Question 3. 36

To understand why Plaintiffs’ motion is deficient, we must first understand the

nature of not only Plaintiffs’ claims for compensation, but also the evidence the parties

analysis to ensure that the requirements of Rule 23 are met, and that a party seeking to maintain

a class action must satisfy through evidentiary proof at least one of the provisions of Rule 23(b).”

(cleaned up)); Baker v. State Farm Mut. Auto. Ins. Co., 2022 WL 3452469, at *2 (11th Cir. Aug. 18,

2022) (“A court may only certify a class action if the moving party fulfills, via evidentiary proof,

all the requirements set forth in Federal Rule of Civil Procedure 23(a), as well as at least one of

the requirements under Rule 23(b).” (citing Comcast Corp., 569 U.S. at 33)); Kurtz v. Costco Wholesale

Corp., 768 F. App’x 39, 40 (2d Cir. 2019) (“This requirement of proof applies to all requirements of

Rule 23 — including the predominance requirement described above.”); Lohmann, 154 Fed. Cl. at

361–62 (explaining that “Plaintiffs bear the burden of affirmatively establishing that the RCFC 23

requirements are ‘in fact’ met” and that “the Court must conduct a ‘rigorous analysis’ and may

probe beyond the pleadings to assess Plaintiffs’ showing” (emphasis omitted in original) (first

citing Dukes, 564 U.S. at 350–51; and then citing Fisher v. United States, 69 Fed. Cl. 193, 197 (2006)).

Even Judge Allegra in Barnes acknowledged that “Plaintiffs bear the burden of establishing that

the action satisfies the[ RCFC 23] requirements.” Barnes, 68 Fed. Cl. at 495 (citing Amchem Prods.,

521 U.S. at 613–14); see also Crawley v. United States, 2021 WL 252838, at *3 (Fed. Cl. Jan. 25, 2021);

Mercier v. United States, 138 Fed. Cl. 265, 270 (2018) (“The plaintiff bears the burden of establishing

these requirements.” (citing Fisher, 69 Fed. Cl. at 197)).

36 Class Question 3 essentially summarizes, and is subsumed within, the first two questions

together. If nurses worked unpaid through their meal periods (Class Question 1), and they were

induced to do so (Class Question 2), the resulting overtime may be compensable. Then, by

definition, the nurses may not have been paid properly (Class Question 3). Accordingly, Class

Question 3 depends entirely upon the resolution of Class Questions 1 and 2. Because Class

Question 3 does not add anything to the class certification discussion, this Court does not address

it further.

25

summarize in their respective filings. 37 Dukes, 564 U.S. at 351 (“rigorous analysis” of Rule

23 compliance “will entail some overlap with the merits of the plaintiff’s underlying

claim”).

a. For the Purposes of Plaintiffs’ Pending Motion for Class Certification, this

Court Assumes Mercier’s Interpretation of 38 U.S.C. § 7453(e) Applies to

Plaintiffs’ Claims

As explained supra, Plaintiffs claims are based on 38 U.S.C. § 7453(e), which

provides overtime compensation for “[a] nurse performing officially ordered or approved

hours of service in excess of 40 hours in an administrative workweek, or in excess of eight

consecutive hours[.]” (emphasis added). The Federal Circuit has held that overtime work

is “officially ordered or approved” — and thus qualifies for compensation — where

employees have been “induced” to work such overtime. Mercier, 786 F.3d 981–82. In

2017, however, after the Federal Circuit decided Mercier, the VA updated Handbook 5007

to provide that employees are authorized to work overtime only (1) “when the overtime

has been approved either verbally or in writing, in advance, by an appropriate

management official[,]” or (2) employees “submit a written request for after-the-fact

authorization” for overtime. VA Handbook 5007 pt. V, ch. 2 at V-3a (emphasis added)

(providing that “the decision to authorize [after-the-fact] overtime is at the discretion of

management”).

Because Plaintiffs’ proposed class includes nurses employed at the Northport

Veterans Affairs Medical Center in Northport, New York, since November 5, 2013, a

preliminary question for the proposed class’s commonality analysis is whether Plaintiffs

may ultimately support their claims with evidence of mere inducement, as per Mercier,

or must Plaintiffs prove express approval, as per updated VA Handbook 5007. For the

purposes of the pending class certification motion and this Court’s commonality analysis,

we assume without deciding that the more permissive “inducement” standard from

Mercier applies, notwithstanding that VA Handbook 5007 may be entitled to deference

(at least for overtime claims since the relevant updates took effect). 38

37 See Pl. Mot. at 11–15 (purporting to summarize evidence that “[n]urses are [i]nduced to [w]ork

[t]hrough their [u]npaid [m]eal [p]eriods” and that “[m]anagement is [a]ware that [n]urses” are

doing so).

38See, e.g., Boyer v. United States, 159 Fed. Cl. 387, 411 n.15 (2022) (discussing deference to VA

handbooks and other informal guidance). As discussed supra, the statute at issue in both Mercier

and this case (38 U.S.C. § 7453) “does not require the official order or approval to be in any

particular form,” yet at the time Mercier was decided the VA had “not enacted any regulation

interpreting the statute as mandating any particular procedure that must be followed to qualify

for overtime pay.” Mercier, 786 F.3d at 972 & n.1 (explaining that “[t]he handbook is an informal

agency interpretation and is entitled to deference only ‘proportional to [its] power to persuade.’”

26

As discussed below, however, Plaintiffs’ evidence does not demonstrate that even

bare inducement is resolvable on a classwide basis. Moreover, regardless of the proper

test for compensable overtime pursuant to 38 U.S.C. § 7453(e), Plaintiffs have not shown

that any of the critical class certification questions Plaintiffs have posed are answerable

on a classwide basis. With respect to Class Question 1, there is no way to resolve on a

classwide basis whether an individual nurse worked overtime at all. And, even if that

were not the case, questions of damages — how long each nurse worked overtime —

would overwhelm any common question. Similarly, Class Question 2 litigation (i.e., to

answer whether the VA induced overtime work) will require overwhelmingly

individualized testimony from each opt-in plaintiff. Such individualized evidence is so

central to Class Question 2 that it is not a common question, let alone one that satisfies

predominance; thus, class certification is not warranted pursuant to RCFC 23.

b. Plaintiffs Lack a Commonly Answerable Central Question

The devil is in the details of the evidentiary record. Those details, examples of

which are addressed below, demonstrate that Plaintiffs have not satisfied RCFC 23’s

commonality requirement that the class claims share a central issue that can be resolved

all at once with a common answer. Dukes 564 U.S. at 350 (holding that plaintiffs must

show that their claims “depend upon a common contention” and “[t]hat common

contention, moreover, must be of such a nature that it is capable of classwide

resolution — which means that determination of its truth or falsity will resolve an issue

that is central to the validity of each one of the claims in one stroke” (emphasis added)).

Plaintiffs rely upon the depositions of the four proposed class representatives:

Kim Macklin (see ECF No. 27-8 (deposition transcript) (“Macklin Tr.”)); Nicholas Orlando

(see ECF No. 27-10 (deposition transcript) (“Orlando Tr.”)); Renee Lupo (see ECF No. 27-

11 (deposition transcript) (“Lupo Tr.”)); and Richard Walters (see ECF No. 27-13

(deposition transcript) (“Walters Tr.”)). See Pl. Mot. at 15–16 (describing “[p]roposed

[c]lass [r]epresentatives”). 39 Accordingly, the Court focuses its attention primarily on

those class representatives for the purposes of the pending motion. The record evidence

illustrates wide variation among the proposed class members, severely undercutting

Plaintiffs’ response to the government’s commonality attack.

(internal quotation marks omitted) (quoting Von Zemenszky, 284 F.3d at 1319)). That is no longer

the case given the updates to VA Handbook 5007.

Plaintiffs misspell “Macklin” as “Mackin.” Compare Pl. Mot. at 16 with Sec. Am. Compl. at 11;

39

Macklin Tr. 1:10; ECF No. 27-16 at 21 (Plaintiffs’ Exhibit P). The government repeated this

misspelling. Def. Resp. at 1, 13.

27

Class Question 1

Each deposition includes a discussion of how frequently the representative nurse

worked through meals. Nurse Macklin testified that she “cannot provide any specific

dates when [she] missed . . . meal periods,” and “cannot provide the approximate amount

of time or the percentages of time [of] any particular year when [she] missed . . . meal

periods.” Macklin Tr. 6–12. Nurses Lupo and Orlando were more definitive about how

often they worked through a meal period, but their estimates differed. Lupo Tr. 77:17–

20, 79:2–5, 79:13–22, 80:1–22, 81:1–12 (“Four out of my five shifts I would say on

average. . . . Because again, I don’t have a set schedule, so I have to write down my

schedule. But no, I don’t have any of those calendars [before December 2020.]”); Orlando

Tr. 14:10–18 (“I can’t quantify [the instances of work performed during ostensible meal

breaks]. You’re talking eight years of time. . . . [T]wo times per week and four weeks in

a month, so eight times per month, at least.”). Nurse Walters testified that his lunch

breaks are “constantly interrupted.” Walters Tr. 37:1–22, 42:4–7, 45:15–18 (explaining that

“[t]here is a rare day that somebody does not interrupt your lunch” and “about 50 percent

of the time [he] get[s] interrupted during [his] lunch break” but that the facts and

circumstances of such interruptions vary).

The following colloquy during oral argument illustrates Plaintiffs’ evidentiary

problem:

THE COURT: . . . You have the burden to show that

[Plaintiffs] worked through their lunch break. You are going

to have to show that for each individual opt-in member, aren’t

you?

[PLAINTIFFS’ COUNSEL]: Eventually, yes, but this Court

can make broad-brush determinations that allow us to ease

those inquiries.

Tr. 40:23–25, 41:1–3 (emphasis added). What this Court is looking for, however, is

evidence that we “can make broad-brush determinations” that actually answer the critical

class questions Plaintiffs identify in their motion, see Pl. Mot. at 20. What Plaintiffs appear

to admit here is that there is no avoiding a plethora of individual inquiries for each opt-

in plaintiff, including for Class Question 1. 40

40Nor, for that matter, can Plaintiffs avoid individualized proof to determine the length of any

uncompensated work during meal breaks. Def. Resp. at 21; see also Comcast Corp., 569 U.S. at 34

(“Questions of individual damage calculations will inevitably overwhelm questions common to

the class.”); Saunooke v. United States, 8 Cl. Ct. 327, 330–31 (1985) (concluding that a tax refund

case “is particularly ill-suited for class certification” where, “[t]o prevail each individual must not

only establish the error in his particular assessment, but also the correct amount of taxes” and

that given “the burden of proof in the court with respect to damages, it is virtually impossible in

a class action to achieve the individualized results demanded”).

28

Class Question 2

Even if the evidence were capable of answering Class Question 1, that would not

answer Class Question 2, which is the class certification question at the core of Plaintiffs’

claims against the VA: “whether the VA induced such work,” Pl. Reply at 4 (emphasis

added). Put differently, the central, and more difficult, question here is not whether a

particular nurse worked through a meal period without compensation, but rather why a

nurse did so. Moreover, in terms of class certification, as noted supra, “[w]hat matters to

class certification . . . is not the raising of common ‘questions’ — even in droves — but

rather, the capacity of a class-wide proceeding to generate common answers apt to drive

the resolution of the litigation.” Dukes, 564 U.S. at 350 (second alteration in original)

(quoting Nagareda, supra text accompanying note 28, at 132). Although the Court

searched the record for indications that Plaintiffs’ reasons for mealtime work are capable

of common answers, there are few, if any, such signs to be found. Indeed, the section of

Plaintiffs’ motion discussing commonality, Pl. Mot. at 20–21, does not span even two

pages, does not begin to suggest possible common answers to the common questions

posed, and certainly does not proffer specific evidence in support of such answers that

withstand a “rigorous analysis,” Dukes, 564 U.S. at 351.

The question of why Plaintiffs allegedly worked overtime is the crux of their

compensation claims. In that regard, even assuming (for now) that Plaintiffs are correct

that Mercier’s more lenient “inducement” standard applies to their overtime claims, the

Court again notes that management’s mere knowledge or awareness of employees’

working through unpaid breaks is insufficient. Mercier, 786 F.3d at 981 (citing Bilello, 174

Ct. Cl. at 1257). Senior Judge Bruggink helpfully elucidated this point in a recent decision:

To constitute order or approval by inducement, however, an

employer must have more than “mere knowledge” that an

employee is working overtime hours. An employer’s “tacit

expectation” that employees work overtime is similarly

insufficient to constitute inducement. Where courts have

found more than a “tacit expectation,” employers either

expressly communicated their expectation of extended hours,

scheduled additional hours of work outside of the regular

workweek, or issued rules and regulations that had the

“practical effect” of requiring overtime hours. These

requirements reflect the fact that [the] “ordered or approved”

standard provides for narrower coverage than the “suffer or

permit” standard of overtime under the FLSA.

Coyner v. United States, -- Fed. Cl. --, 2022 WL 4008086, at *5 (Fed. Cl. Sept. 2, 2022)

(citations omitted); see also Mercier, 786 F.3d at 974 (“Where there was ‘more than only a

tacit expectation’ but less than an express directive to work overtime, the court asked

29

whether the overtime was ‘induced.’” (internal quotation marks omitted) (quoting Baylor

v. United States, 198 Ct. Cl. 331, 359–60 (1972))).

With that in mind, the Court concludes that most of the evidence upon which

Plaintiffs rely is not remotely probative of inducement, nor does it demonstrate that the

inducement question is answerable in one stroke for the entire class.

The reasons nurses proffered for their mealtime work varied widely. Consistent

with Plaintiffs’ central contention in support of their class certification motion,

Mr. Orlando and Mr. Walters appeared to blame missed breaks on staffing levels.

Orlando Tr. 18:21–22, 19:1; Walters Tr. 76:18–22, 97:1–11 (“There have been instances over

the past years where we have been told that we could not leave the hospital because they

were short staffed.”). But mere “instances over the past years” hardly provides evidence

for a common practice or policy supporting the existence of a class. Walters Tr. 97:1–11.

Mr. Orlando also pointed generically to “the culture” of any hospital, Orlando Tr. 23:7–

18, but he testified that various staffing issues are responsible for his not taking meal

breaks, see Orlando Tr. 23:16–22, 24:1.

Nurse Lupo was even more equivocal, testifying that she sometimes does not take

her full break because she “feel[s] guilty” but that “no one[]” is “telling [her] that [she]

ha[s] to get up and help patients” or “cannot take more than a 15-minute break or lunch

break.” Lupo Tr. 40:14–15; 41:8–13. Indeed, Ms. Lupo expressly admitted that she works

through her breaks because she “feel[s] like [she is] burdening the other nurses” and that

her reasons for working through the breaks are varied. Lupo Tr. 41:13–14, 21–22 (“There

are so many situations.”). Again, the fact that Ms. Lupo was sometimes “the only RN”

on duty and did not take a break — because, in that case, she “physically cannot leave

the unit” — is not sufficient to support class certification. Lupo Tr. 77:4–16. Put more

generally, the fact that staffing levels, on occasion, may have contributed to a nurse’s

having worked through a meal break would still require each and every plaintiff to testify

about the particular working conditions giving rise to a claimed overtime period.

There is also variability in how Plaintiffs responded to working through meals.

While Mr. Orlando “understood that [he] can get overtime for missed meal periods,” he

rarely requested overtime and suggested that it was not induced. Orlando Tr. 15–22

(testifying that despite having worked several times per month during meal periods since

2014, he “only requested overtime just 20 times” because “[i]t’s just what we do”).

Mr. Walters, meanwhile, testified that he “would not stay unless [he] was paid overtime”

and believes he was paid. Walters Tr. 76:17–22, 77:1. Thus, Mr. Walters may not even be

within the proposed class.

Accordingly, even among the proposed class representatives, the testimony varies

regarding everything from whether a particular nurse worked through an unpaid break

or why other nurses may have done so. Where “[r]esolution of one [p]laintiff’s claim will

30

not impact the others’ claims,” the “claims lack commonality and the Court must deny

class certification.” Varnes v. Home Depot USA, Inc., 2014 WL 12622462, *4 (M.D. Fl. July

11, 2014). As was the case in Varnes, Plaintiffs’ claims here “require individual and

independent evaluations of the circumstances surrounding each alleged incidence.” Id.;

see also Former Emps. of IBM Corp. v. Chao, 292 Fed. App’x 902, 908–09 (Fed. Cir. 2008)

(affirming denial of class certification where “evidence presented by Appellants fails to

support a finding of commonality” even where they claimed “that all potential class

members are subject to the same overarching legal issue”); Lohmann, 154 Fed. Cl. at 370

(denying class certification where plaintiffs’ claims would “likely require” a host of

“individualized assessment[s]”). Contrary to Plaintiffs’ counsel’s assertion, there simply

is no classwide evidence (even amongst the proposed representative plaintiffs) that

employees are “working overtime because, if they don’t, patients are going to die.” Tr.

11:4–8.

Testimony from yet other putative class members — i.e., those not designated as

proposed class representatives — is even more all over the map. See Def. Resp. at 16–17

(describing deposition testimony). The Court agrees with the government that such

testimony “highlights the tremendous variation in the circumstances and frequency with

which [employees] experience missed or interrupted meal breaks” and, in other cases,

“demonstrates inherent inconsistencies between the class members’ claims, or lack

thereof.” Id. at 16. On this front, the Court fully credits the government’s argument for

two reasons: (1) the Court’s independent review of the evidentiary record leads the Court

to conclude that the government is correct; and (2) Plaintiffs’ reply brief is utterly devoid

of quite literally any response to the many pages of specific testimony the government’s

response brief marshaled in support of its position. Given Plaintiffs’ failure to respond

to the government’s specific arguments and cited evidence, the Court has little choice but

to the side with the government. See, e.g., Seventh Dimension, LLC v. United States, 161 Fed.

Cl. 110, 129 (2022) (“Undeveloped or perfunctory arguments . . . may be deemed forfeited

or waived.”); Aeling v. Saul, 2020 WL 7768407, at *9 (D.N.J. Dec. 30, 2020) (“The Court will

not hunt through the record to find evidence to support Plaintiff’s position.”). 41

41 See also Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 1379 n.2 (Fed.

Cir. 2020) (noting that arguments made “in passing” are not considered fully developed and are

waived), cert. denied, -- U.S. --, 142 S. Ct. 82 (2021); Monsanto Co. v. Scruggs, 459 F.3d 1328, 1341

(Fed. Cir. 2006) (concluding that undeveloped arguments are “deemed waived”); Olaplex, Inc. v.

L’Oréal USA, Inc., 855 F. App’x 701, 712 (Fed. Cir. 2021) (“If the record contains more evidence

than [the court] ha[s] identified, [and the parties] ha[ve] not brought such additional evidence to

[the court’s] attention, [the court] need not sift the extensive record for it on [its] own.”); United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argument,’ [is] really nothing more

than an assertion, [and] does not preserve a claim[,] [e]specially not when the brief presents a

passel of other arguments . . . . Judges are not like pigs, hunting for truffles buried in briefs.”

(citation omitted)); DeJonghe v. City of Dearborn Heights, 2021 WL 4894613, at *8 (E.D. Mich. Oct.

20, 2021) (“Because the Court cannot develop Plaintiff’s arguments sua sponte, Plaintiff's challenge

is waived.”).

31

The bottom line is that the government is correct that “[t]o determine whether a

particular nurse was induced to work [overtime] on a particular day” — and for how

long — “the Court will be required to engage in[] an individual analysis” that “is not

subject to classwide proof.” Def. Resp. at 23 (citing Cole v. CRST Van Expedited, Inc., 842

F. App’x 162, 163 (9th Cir. 2021)); see also Monk, 978 F.3d at 1277 (concurring “that the rule

of ‘commonality’ requires that a proposed class action presents a common question that

is capable of a common legal answer” (citing Dukes, 564 U.S. at 350–52)). Alleging non-

conclusory facts supporting a finding of inducement may be sufficient to survive a

motion to dismiss, as in Mercier, but it is not sufficient to meet the commonality test as

the Supreme Court has explained it. That test requires Plaintiffs to support its motion

with specific evidence, not mere allegations.

Plaintiffs’ motion does not reconcile the disparate evidence and instead relies on

allegations. Plaintiffs assert that their class certification motion should be granted based

upon an assortment of contentions they argue are related to inducement:

• Nurses worked overtimed because “it’s part of the culture in the ER and the

hospital to provide the best patient care — sometimes, as a result of staffing

levels”;

• “[M]eal period breaks were rare when working on weekend shifts”;

• “Many did not even know that they were entitled to be compensated for

working through their meal periods”;

• “Nurses . . . never or rarely asked for overtime pay or compensation for

working through their unpaid meal periods.”

Pl. Mot. at 12 (emphasis added) (citing record evidence); see also, e.g., id. at 14

(“Supervisors admitted that they had knowledge of nurses working through meal

periods.”). None of those assertions, however — even assuming the cited record

evidence actually supports them — come close to suggesting any sort of classwide

inducement pursuant to 38 U.S.C. § 7453(e) that explains why nurses worked during

breaks.

Each of the above examples encounters a fatal stumbling block. The concession

that staffing levels “sometimes” played a role in nurses working during unpaid breaks

necessarily means that a case-by-case analysis of staffing levels will be required. The fact

that “meal period breaks were rare” in certain instances only begs the question whether a

particular nurse was induced to worked through the meal period in those specific

instances. That is because the mere fact that a nurse (or many nurses) worked through a

meal period does not shed any light on why such work occurred. Even if nurses were not

informed of the circumstances that entitled them to overtime pay, that does not show why

32

they may have worked overtime in any particular case to begin with, nor does it show

that they did so. The same is true for nurses who allegedly did not claim overtime pay

after working during meal periods; indeed, a nurse might have not claimed overtime

because it was not induced and, thus, not compensable.

The Court agrees that some of the Plaintiffs’ other assertions may be relevant to a

claim of induced overtime. For example, Plaintiffs point to evidence that some “nurses

worked through their meal periods because the units were too busy and/or they could

not obtain relief to cover their patient care or clinical duties.” Pl. Mot. at 12 (citing record

evidence). Similarly, “[m]any . . . Plaintiffs notified their supervisors that they had to

work through their meal periods” but the managers would respond “too bad.” Id. at 13

(emphasis added). Indeed, Plaintiffs all but concede that this specific type of alleged

inducement (i.e., that working conditions necessitated the overtime) — and not those

catalogued above — represent the backbone of Plaintiffs’ case:

Plaintiffs claim that there was a widespread practice of nurses

working through their unpaid meal periods to provide patient

care and perform clinical duties because the VA was understaffed,

units were busy and there was not a well-followed process to

provide coverage to nurses so as to allow them to take their

meal breaks.

Pl. Mot. at 21 (emphasis added) (summarizing theory of the case); see also id. at 22

(“[C]ommon to all class members, regardless of individual differences that may exist, is

whether the nature of the work performed is such that a failure to perform the induced

duties can result in possible patient harm, malpractice, and professional licensing and

certification revocation.”).

While Plaintiffs’ working theory of inducement due to staffing levels generally

makes sense, this Court agrees with the government that “[t]he proposed representatives’

testimony was replete with vagueness, in that no plaintiff was able to identify when, how

often, or for how long they performed work during their meal breaks” and that “their

testimony contains tremendous variation in the circumstances and frequency with which

they experience missed or interrupted meal breaks.” Def. Resp. at 9; see also id. at 9–16

(summarizing deposition testimony). More significantly, the Court agrees with the

government that “[t]he nurses testified to different reasons for working through his or

her meal break.” Id. at 22 (discussing deposition testimony). That means that each and

every Plaintiff — whether a named representative, or of the opt-in variety — will have to

prove entitlement to overtime based, at a minimum, on a totality of the circumstances

(and, thus, different facts) to support a finding of inducement. The government is correct

that “[t]o determine whether a particular nurse was induced to work [overtime] on a

particular day, the Court will be required to engage in an individualized analysis” and

“thus, this question is not subject to classwide proof.” Def. Resp. at 23. Simply put, this

33

Court discerns no difference between the inducement claims here and the discrimination

claims at issue in Dukes that failed the commonality requirement. 564 U.S. at 350.

Again, none of this is to say that Plaintiffs failed to provide some evidence that, at

least at times, there were staffing shortages at the hospital in question. But although

“Plaintiffs claim that there was a widespread practice of nurses working through their

unpaid meal periods . . . because the VA was understaffed,” Pl. Mot. at 21, Plaintiffs never

explain how they will avoid having to show that each and every claimed period of

overtime — for each and every opt-in plaintiff — was induced based on the particular

working conditions. While evidence regarding staffing shortages may be consistent

with — and, indeed, provide support for — a legal conclusion of inducement, evidence of

understaffing does not translate to inducement per se. Such evidence of understaffing

alone does not yield common answers sufficient for this Court to certify the proposed

class. Dukes, 564 U.S. at 352. This Court agrees that “[a] question is not ‘common to the

class’ merely because the same evidence is relevant” to different plaintiff’s claims. In re

Lincoln Nat’l 2017 COI Rate Litig., -- F. Supp. 3d --, 2022 WL 4091426, at *10 (E.D. Pa. Aug.

9, 2022) (quoting Allen v. Ollie’s Bargain Outlet, Inc., 37 F.4th 890, 900–01 (3d Cir. 2022)).

“Instead, evidence must be likely to ‘produce a common answer.’” Id. (quoting Allen, 37

F.4d at 901).

To support a conclusion that understaffing induced uncompensated work,

Plaintiffs must ultimately prove a link between a policy of understaffing and specific

working conditions such that there is a demonstrable causal link from those working

conditions to the performance of the claimed uncompensated work. Plaintiffs provided

no such evidence or even an explanation for how that will be demonstrated. In the

context of this case, for example, this Court has no difficulty imagining instances where

a nurse does additional, productive work, but where it is neither medically nor even

administratively necessary. Awarding overtime in such circumstances — i.e., based

solely on some broad, general finding about staffing shortages — would essentially

eliminate the government’s discretion regarding when to pay overtime (and to whom).

Employees cannot be permitted to unliterally decide when overtime should be paid by

working overtime whenever they want merely because they believe it is somehow

necessary. In other words, generalized evidence of understaffing is simply an insufficient

basis upon which to sustain a class action in this case. Each case and period of claimed

overtime will have to be examined individually, looking at the totality of the

circumstances of the working conditions that allegedly induced the putative overtime.

Here is a thought experiment to illustrate the Court’s point. Let’s assume that, for

a given nursing unit, there are 10 hours of productive work to be completed in a single

day, but only one nurse is on staff working an eight-hour shift. The government has three

choices: (1) hire another nurse to complete the two additional hours of work; (2) pay the

staffed nurse overtime for two additional hours; or (3) accept that two hours of work will

not be completed. Now, if that additional two hours of work is non-essential (e.g.,

34

paperwork that is not time-sensitive, tidying up) — or would merely be helpful to the

next nurse on duty — it is obvious to the Court that the lone nurse on staff cannot force

the government to pay overtime by voluntarily opting to perform the additional two

hours of work and then claiming that the work was induced. Even if the nurse admirably

is just trying to be productive and helpful, and there is work to be done, that does not

equate to inducement.

On the other hand, if the additional two hours of work may be the difference

between life and death for a patient or if professional obligations were to require the

nurse to remain at his or her station — e.g., there is no nurse to take over the shift after

eight hours — such understaffing may well constitute inducement. That is particularly

true where the additional work is performed with the full knowledge of management.

But what the Court’s hypothetical demonstrates is that claims of induced overtime due

to understaffing involve a fact-specific, totality-of-the-circumstances inquiry. In other

words, generalized understaffing does not translate per se into a viable overtime claim for

any and all additional work performed by an employee. Neither understaffing nor

management knowledge — in isolation or combination — necessarily equates to

inducement of overtime work. Coyner, 2022 WL 4008086, at *5 (holding that “order or

approval by inducement” requires “more than ‘mere knowledge’ that an employee is

working overtime” and that “[a]n employer’s ‘tacit expectation’ . . . is similarly

insufficient”). In that regard, the undersigned agrees with Senior Judge Firestone that

this Court should not find commonality where liability does not “turn[] on . . . [a]

common factor” and where, as here, “[t]he proof related to [other liability] factors will

vary for each plaintiff.” Colonial Chevrolet Co., 2016 WL 11641741, at *5 (discussing

commonality and predominance together).

The decision of the United States Court of Appeals for the Third Circuit in Ferreras

v. American Airlines, Inc., 946 F.3d 178, further illustrates why this Court rejects Plaintiffs’

motion here. In that case, employees of American Airlines alleged violations of “the New

Jersey Wage and Hour Law . . . because the airline’s timekeeping system defaults to

paying employees based on their work schedules, even if they work additional hours

outside of their shifts and in excess of 40 hours per week.” 946 F.3d at 180. The employees

brought their claims as a putative class action and moved for class certification. Id.

Although the district court determined that all of Rule 23’s class certification

requirements were met, the Third Circuit reversed, agreeing with the airline that the trial

court “did not conduct a rigorous analysis and that several of the requirements of Rule

23, including commonality and predominance, were not met.” Id. The appellate court

agreed that the case could not “proceed as a class action because determining when each

employee was actually working will necessarily require individualized inquiries.” Id.

In so holding, the Third Circuit described how the facts in Ferreras did not support

a class action because commonality was not satisfied. In particular, the court of appeals

explained that “plaintiffs will still need to go through the process of proving that each

35

individual employee worked overtime and is thus entitled to additional compensation,

regardless of any common evidence.” Ferreras, 946 F.3d at 185–86 (explaining that “[e]ven

if one of the [plaintiff] groups was affected by . . . [an overarching] policy, that would not

drive the resolution of the litigation on a classwide basis”). The same sort of problems

that plagued the class certification motion in Ferreras apply with equal, if not more, force

to Plaintiffs’ motion in this case because “whether each individual plaintiff was entitled

to overtime that they did not receive” is not subject to a “common answer[]” but rather

involves an “inquiry [that] mandates an individualized review of each particular class

member to determine if overtime is due.” Velasquez v. Digit. Page, Inc., 303 F.R.D. 435,

442–43 (E.D.N.Y. 2014); see also Horvath, 149 Fed. Cl. at 745–46 (“linking [pay] claims

together in a class action requires that the underpayment be based on grounds generally

applicable to all prospective class members”); Gross, 106 Fed. Cl. at 379 (holding that

whether a proposed class of agency employees had a “common” question about Sunday

premium pay depended on whether their entitlement to the pay could be proven by

reference to “generalized proof” of Sunday hours worked or only by individualized

inquiry into the Sunday-scheduling practices of each plaintiff’s region and the type of

Sunday work each plaintiff performed). 42

Thus, Plaintiffs’ case here is fundamentally different from one involving claims

that turn, for example, on the proper classification of a specific group of employees as a

matter of law. Take a case where “Plaintiffs claim Defendants misclassified all survey

crew members as independent contractors during a three-year period.” Bradbury v.

Transglobal Servs., LLC, 2018 WL 3603078, at *4 (W.D. Tex. June 16, 2018). In such a case,

“[t]he questions addressed . . . are collective and not fundamentally personal — (1) the

type of work performed by survey crew members; (2) the hours worked and

compensation provided to survey crew members; and (3) Defendants’ classification of

the survey crew members as independent contractors.” Id. In other words, a class action

is appropriate where “[t]he fundamental inquiry is whether Plaintiffs show ‘some

identifiable facts or legal nexus [that] bind the claims so that hearing the cases together

promotes judicial efficiency.’” Id. (second alteration in original) (quoting McKnight v. D.

42 See also Custodio v. Frontera Produce Ltd., 2009 WL 10713875, at *3 (S.D. Tex. Dec. 29, 2009)

(“Commonality also does not exist. . . . Here, the question of whether [defendant] required an

employee to stay on-site ‘off the clock’ and effectively work without pay on any given occasion

is unique to each plaintiff.”); Black v. United States, 24 Cl. Ct. 471, 478 (1991) (“In this case, distinct

individual determinations must be made regarding the degree of disability, type of disability,

diagnosis by physicians and amount of compensation, if any, to be paid to each potential

claimant. Potential claimants would surely have been diagnosed at different time periods by

different physicians for different reasons. Thus, it is patently clear that the plaintiff’s averments

here lack the requisite and singular question of fact for class certification.”); Ray v. Motel 6

Operating, Ltd. P’ship, 1996 WL 938231, at *4 (D. Minn. Mar. 18, 1996) (“The evidence does not

indicate that all the Plaintiffs sustained injury from one unlawful [overtime] policy.”).

36

Hous., Inc., 756 F. Supp. 2d 794, 801 (S.D. Tex. 2010)). Here, in contrast, the claims are

“fundamentally personal,” id., and thus class certification is not warranted.

Plaintiffs’ Second Amended Complaint itself provides yet further support for the

Court’s view that determining whether the VA induced nurses to work during meal

breaks is not a common question across the proposed class for which there is a common

evidentiary answer. Plaintiffs allege that “Defendant’s knowledge of the additional hours

worked by Plaintiffs . . . on a recurring and involuntary basis . . . and Defendant’s

expectation, requirement, and inducement to work those additional hours[,] constitute

Defendant’s order or approval for the additional hours worked.” Sec. Am. Compl. ¶ 253

(emphasis added).

The fact that Plaintiffs feel the need to blend vastly different concepts — i.e., the

agency’s knowledge, expectation, and requirement — to support their overtime claims

reflects the conundrum Plaintiffs face and the flaw in their pending motion. As the settled

law makes clear, knowledge does not equate to an order or approval. Nor does the fact

that a plaintiff may have worked overtime on a recurring basis permit the Court to infer

inducement. Nor does a government manager’s expectation, standing alone, equate to

inducement, order, or approval. Rather, the critical words in the above-quoted allegation

are “involuntary” and “requirement.” Sec. Am. Compl. ¶ 253. The Court agrees that

“[i]nvoluntary” or “require[d]” overtime would answer the mail. But, as the Court

demonstrated above, staffing shortages alone — i.e., without further context and

explanation — cannot show that any particular alleged overtime work was

“involuntary,” “require[d],” or “induce[d].” Id. As in Dukes, this Court concludes that

“[a] similar failure of inference arises here.” Dukes, 564 U.S. at 356; see also In re Lincoln

Nat’l, 2022 WL 4091426, at *9 (concluding that even “[r]elevant common evidence does

not automatically generate a common answer”).

Plaintiffs’ reply brief also demonstrates the class motion’s commonality

deficiencies. Plaintiffs assert that “[a]s alleged and proven, the VA engaged in a

[(1)] systemic failure to properly compensate class members [(2)] based on a hospital-

wide practice or policy that affects all of the putative class members.” Pl. Reply at 4–5.

Plaintiffs do not cite any record evidence for that bald assertion, but let’s break it down

anyhow. The first part of the assertion — that there has been a “systemic failure to

properly compensate class members” — is nothing more than a question-beginning

hypothesis that restates Plaintiffs’ overall claim that they are entitled to overtime pay.

The second part of the assertion — that there is a “hospital-wide practice or policy that

affects all of the putative class members” — begs the additional question: What is that

“hospital-wide practice or policy”? 43 Plaintiffs’ reply brief does not identify one by name

or substance.

43Notably, Plaintiffs themselves distinguish between the hospital’s alleged “policy and practice

of inducing work . . . and not providing adequate staffing and support.” Pl. Resp. at 5. There is

37

Now, perhaps Plaintiffs mean that “inducement through staffing levels”

constitutes a “practice or policy.” In that regard, this Court once again reiterates its

general agreement that hospital conditions may well be relevant to a particular

employee’s claim of inducement. But that premise does not lead inexorably to class

certification. For class certification purposes, the inducement question must be capable

of being addressed with a common answer. Dukes, 564 U.S. at 345. Indeed, Plaintiffs

agree that “the common question has to be capable of a common answer that would then

resolve the issue for the entire class.” Tr. 7:12–15. And while perhaps there are situations

where common answers (about inducement via staffing levels) are possible such that a

proposed class satisfies commonality, the evidence upon which Plaintiffs rely does not

support such a conclusion here. Cf. Smith v. United States, 156 Fed. Cl. 471, 483 (2021)

(rejecting plaintiff’s “mistaken[]” reliance “on cases certifying collective actions where

plaintiffs alleged that an employer’s explicit policies violated the FLSA” and rejecting

certification of collective action where an “individualized inquiry” was required).

Indeed, “inducement through staffing levels” is akin to the class certification argument,

rejected in Dukes, that Wal-Mart’s “‘strong corporate culture’ made it ‘vulnerable to

gender bias.’” In re Rail Freight Fuel Surcharge Antitrust Litig. — MDL No. 1869, 934 F.3d

619, 627 (D.C. Cir. 2019) (quoting Dukes, 564 U.S. at 354 (quotation marks omitted in

original)). As in Dukes, the evidence upon which Plaintiffs rely in this case is “insufficient

to prove that injury could be established on a class-wide basis[.]” Id.

If Plaintiffs are referring to some other “practice or policy,” what is it? How did it

“affect[]” Plaintiffs or other potential class members? Plaintiffs do not answer those

questions. Instead, Plaintiffs argue that “[t]he [common] questions are subject to

common proof because it is the Northport facility’s policies and practices in inducing

such work that is the central question.” Pl. Reply at 5. But that is just more of the same

ipse dixit. Again, Plaintiffs cite no record evidence or explanation for the assertion that

this Court can answer the inducement question across the proposed class.

In this case, there simply is no “evidence that defendant engaged in a common

course of conduct directed at all the plaintiffs” or that “there is a common unlawful policy

that that has injured the class as a whole.” 7A Wright § 1763.1. In any event, the mere

“allegation of a common policy . . . is insufficient to convert their case into a class action.”

Palazon v. Fla. Dep’t of Corr., 2006 WL 8433863, *2 (S.D. Fl. Aug. 18, 2006) (“Plaintiffs’

claims are simply too individual-specific to show a common cause of action.”). Nor is the

fact that Plaintiffs are “all . . . suing the same Defendants under the same legal theory”

sufficient to grant class certification. Id. at *3 (citing Kerr v. City of W. Palm Beach, 875 F.2d

1546, 1558 (11th Cir. 1989)); cf. Elizabeth M. v. Montenez, 458 F.3d 779, 787 (8th Cir. 2006)

no evidence, however, of any policy or practice and, again, “not providing adequate staffing and

support” does not equate, per se, to inducement. The fact that some individuals or groups of

nurses may have had a practice of working through unpaid breaks is, manifestly, not the same as

the agency or management imposing (or inducing) such a practice.

38

(“The presence of a common legal theory does not establish typicality when proof of a

violation requires individualized inquiry.”).

In sum, class actions exist primarily to allow for efficient and economical litigation,

Bright, 603 F.3d at 1285, 1288, but such benefits are achieved only if the claims are bound

together with core questions that are capable of a common answer, see Dukes, 564 U.S. at

349–50. While from a distance the claims of the proposed class in this case share general

similarities, they do not meet the rigorous analysis Dukes mandates. To the contrary, the

claims at issue raise a thicket of individualized questions that do not comport with a

proper class action pursuant to RCFC 23.44

2. Predominance and Typicality

For all of the above reasons, 45 this Court holds that Plaintiffs’ motion also fails the

“far more demanding” predominance requirement. Amchem Prods., 521 U.S. at 624; see

also Tyson Foods, Inc., 577 U.S. at 467 (quoting Comcast Corp., 569 U.S. at 34). “To

demonstrate predominance under Rule 23(b)(3), we must analyze ‘whether a prima facie

showing of liability can be proved by common evidence or whether this showing varies

from [class] member to [class] member.’” Webb v. Exxon Mobil Corp., 856 F.3d 1150, 1156–

57 (8th Cir. 2017) (alterations in original) (quoting Day v. Celadon Trucking Servs., Inc., 827

F.3d 817, 833 (8th Cir. 2016), and explaining that “individualized issues” of liability and

damages were “considerations, unique to each class member’s property, [that]

complicate[d] class-wide resolution” to the point that “[t]oo many individual issues

predominate over common ones”). At a minimum, Plaintiffs must demonstrate “the

substantiality of the ‘generalized proof’ required to resolve certain issues . . . or the logical

outgrowth of a challenge to a ‘system-wide failure.’” Lohmann, 154 Fed. Cl. at 370

(quoting Curry, 81 Fed. Cl. at 334).

Here, the “seemingly common question of ‘is this employee due overtime?’”

would require a “detailed, highly individualized inquiry” that “would have to be

computed for each class member” in this case, as explained supra. Velasquez, 303 F.R.D.

at 442–43. Given that the nature of evidence in this case will necessarily vary across

Plaintiffs, “there are no common answers to common questions here” nor do they

predominate; accordingly, “the claims are not appropriate for class certification.” Id.

44 Plaintiffs agree that “there are going to be individual inquiries here” and that “[t]his is not a

situation where the Court can look at this and say . . . it’s yes or no and everyone is in or out.” Tr.

14:12–15; see also Tr. 14:12–25, 15:1–13, 18:5–25, 19:1–25, 20:1–18 (“[W]e envision a situation in

which . . . liability is determined by chunks.”). Plaintiffs concede that they have not sought any

subclass certifications pursuant to RCFC 23(c)(5). Tr. 15:10–23.

45The Court recognizes that its commonality analysis (i.e., whether a common question exists)

touched upon predominance (i.e., the balance between common and individual questions)

already.

39

(citing Enriquez v. Cherry Hill Mkt. Corp., 993 F. Supp. 2d 229, 235 (E.D.N.Y. 2013) (no

commonality and class certification denied for a class of supermarket workers whose

entitlement to overtime required an individualized examination of how much each

employee worked and was paid during a given week)). Indeed, Plaintiffs concede that

“[t]he common answer” they propose would relate to the question “was there a situation

in which induced overtime could exist.” Tr. 20:15–17 (emphasis added). But even if the

evidence shows that the proposed class would satisfy commonality and that working

conditions were such that “induced overtime could exist,” a conclusion on whether

induced overtime did exist for each nurse requires inquiry into individualized material

facts. In that scenario assuming there is a common question on working conditions, the

record does not suggest that resolving whether overtime could exist would predominate

over individual questions and “greatly simplify the litigation,” Parko, 739 F.3d at 1085.

The Third Circuit’s Ferreras decision once again proves instructive. Distinguishing

that case’s uncompensated work claims from those that would support class certification,

the Third Circuit observed:

The District Court cited Tyson Foods, Inc. v. Bouaphakeo, to

support its conclusion that individualized variations should

not defeat class certification. But that case is clearly

distinguishable. In Tyson Foods, the class consisted of

employees at a pork processing plant who were not

compensated for the time spent donning and doffing the

protective equipment they had to wear at work. The issue

before the Supreme Court was whether representative

evidence could be used to prove the amount of time spent

donning and doffing, even though individual employees took

different amounts of time to perform those tasks. There was,

however, no dispute about what the activity was that Tyson

and the employees were arguing over. It was the same for

everyone — donning and doffing protective gear. The record

evidence here, on the other hand, demonstrates that

employees were not always working while clocked in and

there was substantial variability in what they were doing,

even if some of it could be called work. Accordingly, this case

is unlike Tysons Foods, and the employees would need

individualized, not representative, evidence to prove their

case. Thus, predominance cannot be established.

Ferreras, 946 F.3d at 186–87 (3d Cir. 2019) (citations omitted) (discussing Tyson Foods, 577

U.S. 442).

40

Measuring damages here similarly presents an insurmountable obstacle to class

certification in this case. Comcast Corp., 569 U.S. at 34 (rejecting class proponents’

methodology for calculating classwide damages where the absence of such a

methodology meant “[q]uestions of individual damage calculations will inevitably

overwhelm questions common to the class”); see also Cole, 322 F.R.D. at 507. In Cole, the

district court denied class certification where the plaintiff did “not propose[] any method

for measuring . . . damages” such that “[a] trial within a trial would likely ensue for each

class member seeking actual damages so as to establish . . . the extent of [plaintiff’s] injury

as it relates to [defendant’s] liability.” Id. As in Cole, Plaintiffs here “do[] not need to

show that each [of their] damages are identical,” but they “must establish a means for

measuring damages on a classwide basis that is traceable to [defendant’s] conduct.” Id.

Plaintiffs have “failed to present any such method” here. Id. This Court recognizes that,

post-Comcast, a number of lower courts have limited Comcast to its facts, 46 but this Court

is convinced that where, as here, individualized damages questions would overwhelm

any possible common liability question, class certification should be denied. The

Supreme Court’s directive, in that regard, is unambiguous. See Comcast, 569 U.S. at 34

(explaining that the Court’s conclusion “turns on straightforward application of class-

certification principles” and not “substantive antitrust law”).

This Court concludes that the putative class representatives’ claims are typical of

the broader putative class only in the most general sense that they involve overtime

claims based on alleged work performed during unpaid breaks. That level of generality,

however, is not sufficient to overcome Plaintiffs’ failure to demonstrate commonality and

predominance. 47

46See, e.g., In re Whirlpool, 722 F.3d at 861 (holding Comcast “has limited application” where

“determinations on liability and damages have been bifurcated” (citation omitted)); Giles v. St.

Charles Health Sys., Inc., 294 F.R.D. 585, 594 (D. Or. 2013) (“[N]othing in Comcast indicates that this

presumption [about damages’ measurement] is applicable to wage and hour claims under federal

and state law.”).

47 Typicality and adequacy requirements make little to no sense in an opt-in class action.

Elizabeth K. Spahn, Resurrecting the Spurious Class: Opting-in to the Age Discrimination in

Employment Act and the Equal Pay Act Through the Fair Labor Standards Act, 71 Geo. L. J. 119, 146

(1982) (“The major policy served by the typicality and adequacy of representation requirements

is to protect absent class members . . . . In [an opt-in] class action[], however, the concern with

protection of absent class members is not applicable because the only class members bound by

the judgment are present, having opted-in . . . . To tack on the adequacy . . . and typicality

requirements is simply redundant.”); id. at 149 (“Except for the common question of law or fact

criterion, which permits the court to determine whether a class action would promote judicial

efficiency, the requirements of [FRCP] 23(a) class actions should not apply to opt-in cases.”).

Regardless, as previously noted, this Court has no concern with the adequacy requirement as it

relates to class counsel’s qualifications or the risk of conflicts among proposed class members.

See supra subsection III.C.3 & note 31. This Court doubts very much whether adequacy concerns

make sense in an opt-in class action, where plaintiffs are only bound by the result if they elect to

41

B. The Plaintiffs Have Not Met Their Burden to Demonstrate Numerosity or

Superiority

The Court, at the risk of repeating itself, notes once again what the numerosity and

superiority requirements demand. The numerosity requirement calls for this Court to

assess whether proceeding via “joinder is impracticable,” and the superiority

requirement directs the Court to assess whether a class action “is the fairest and most

efficient method of resolving the suit.” Common Ground Healthcare, 137 Fed. Cl. at 637; see

RCFC 23(a)(1), (b)(3). The two questions are related; each question requires the Court to

compare a class action approach with viable alternatives (i.e., is joinder impracticable,

and would class action be better than joinder or separate litigation). Even where a

theoretical group of plaintiffs can practicably use joinder to pursue litigation together,

such a proceeding may not be superior to a class action proceeding. In that regard, this

Court agrees with the United States Court of Appeals for the Seventh Circuit that what a

court ultimately must decide is whether a class action makes the most sense as a litigation

vehicle given the particular claims at issue:

The purpose of class action litigation is to avoid repeated

litigation of the same issue and to facilitate prosecution of

claims that any one individual might not otherwise bring on

her own. The [trial] court’s task . . . [is] to determine if the

plaintiffs[] presented a scenario in which judicial efficiency

would be served by allowing their claims to proceed en masse

through the medium of a class action rather than through

individual litigation.

Chicago Tchrs. Union, Loc. No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426, 433 (7th Cir.

2015) (acknowledging that “[o]ur analysis is not free-form, but rather has been carefully

scripted by [FRCP 23]”).

The difficulty, from this Court’s perspective, is that usual numerosity and

superiority considerations seem to be almost completely inapposite in an opt-in class

action framework. That is because an opt-in class action itself “resembles permissive

joinder in that it requires affirmative action on the part of every potential plaintiff.”

Buchan v. United States, 27 Fed. Cl. 222, 223 (1992) (explaining that an opt-in class action

“allows each of the unnamed members of the class the opportunity to appear and include

themselves in the suit if each is willing to assume the risks of the suit”). Indeed, “‘opt-

out’ class actions” — available in district court pursuant to FRCP 23 — “superseded the

former ‘spurious’ class action [in 1966], so characterized because it generally functioned

enter the case. In other words, in an opt-in class action — by definition — there are no absent

parties with which a court need be concerned. The Court does not address these considerations

further.

42

as a permissive joinder (‘opt-in’) device.” Amchem Prods., 521 U.S. at 615 (first citing 7A

Charles Alan Wright et al., Federal Practice and Procedure § 1753 (2d ed. 1986); and then

citing Advisory Committee Notes on FRCP 23, 1966 amendment). 48 Moreover,

permissive joinder itself requires some level of commonality. 49 In short, the comparisons

between permissive joinder and opt-in class actions are impossible to ignore. Even their

respective purposes appear to be largely the same. Swan v. Ray, 293 F.3d 1252, 1253 (11th

Cir. 2002) (per curiam) (explaining that the central purpose of Rule 20 [joinder] is “to

promote trial convenience and expedite the resolution of disputes, thereby eliminating

unnecessary lawsuits.” (quotation omitted)). The undersigned is not the first judge of

this Court to recognize this problem of applying numerosity and superiority to opt-in

class actions. As Judge Lettow noted, “[n]umerosity as a criterion is somewhat of an

anomaly for an opt-in class action” where “each participating member of the class must

act affirmatively to participate, which amounts to joinder in pragmatic terms.” Haggart

v. United States, 89 Fed. Cl. 523, 530 (2011).

Given the similarities between permissive joinder and an opt-in class action, the

Court does not see how numerosity or superiority weigh in favor of either Plaintiffs or

48 Compare Kainz v. Anheuser-Busch, Inc., 194 F.2d 737, 743 (7th Cir. 1952) (“[I]nasmuch as [then-

operative] Rule 23(a)(3) [governing opt-in class actions] is, in its essence, a permissive joinder rule

rather than a rule defining a recognizable class, it is obvious that the two rules” — i.e., FRCP 20(a)

on joinder and FRCP 23(a)(3) — “are, as to the intents and purposes involved here, equivalents.

Everything we have said as to one applies with equal force to the other.”); Carroll v. Associated

Musicians of Greater N.Y., 206 F. Supp. 462, 469–70 (S.D.N.Y. 1962) (“The ‘spurious class suit’ is

merely a device for permissive joinder” and serves as “an invitation to the members of the

affected class to join in the action. If they do not so join they cannot be bound by the result.”

(quoting Mutation Mink Breeders Assn. v. Lou Nierenberg Corp., 23 F.R.D. 155, 162 (S.D.N.Y. 1959))),

aff’d, 316 F.2d 574 (2d Cir. 1963); with Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 519 (2d Cir.

2020) (“In 1966, Rule 23 was amended to resemble its modern form, including for the first time

Rule 23(a)’s requirements of commonality, typicality, numerosity, and adequacy, and Rule

23(b)(3)’s requirements of predominance and superiority. Along with these revisions, the drafters

also omitted the opt-in requirement contained in the former ‘spurious’ class action device and

replaced it with Rule 23(b)(3)’s opt-out requirement.” (citations omitted)), cert. dismissed, 142 S.

Ct. 639 (2021) (mem.).

49Lowery v. Ala. Power Co., 483 F.3d 1184, 1202 n.46 (11th Cir. 2007) (noting that the requirement

that “plaintiffs’ claims involve common questions of law or fact” is “shared by traditional class

actions” pursuant to FRCP 23 and “permissive joinder under [FRCP] 20(a)”); Lee v. Cook Cnty.,

635 F.3d 969, 971–72 (7th Cir. 2011) (noting that “[m]ultiple plaintiffs are free to join their claims

in a single suit when ‘any question of law or fact common to all plaintiffs will arise in the action’”

but that “[t]he common question need not predominate” because “that’s a requirement for class

actions, not for permissive joinder” (quoting FRCP 20(a)(1)(B))); see also United Mine Workers of

Am. v. Gibbs, 383 U.S. 715, 724 (1966) (“Under the Rules, the impulse is toward entertaining the

broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties

and remedies is strongly encouraged.”).

43

the government, at least in this particular case. 50 Cf. Zachman v. Erwin, 186 F. Supp. 681,

689–90 (S.D. Tex. 1959) (“Actually, the court does not see what advantage plaintiffs seek

to gain by maintaining a class action under [the former, opt-in] Rule 23(a)(3), since a

judgment would only bind the original parties and intervenors and since, as will be

shown, there is no jurisdictional advantage to be gained.”). 51 Just as in a permissive

joinder case (known as a “spurious” class action under prior versions of the FRCP), each

plaintiff in this case — whether named, representative, or opt-in — will ultimately have

to demonstrate entitlement to a specific money judgment even if the class were certified.

Athas v. Day, 186 F. Supp. 385, 389 (D. Colo. 1960) (“[E]ach party to a spurious class action

must stand or fall on his own allegations and evidence in support thereof.”).

Perhaps the Court might be inclined to assess both numerosity and superiority

differently if proceeding via class action would (a) create some efficiencies (e.g., in

discovery), 52 or (b) allow the pooling of claims that would otherwise be uneconomical to

litigate. But, to the extent that the point of a class action here would be simply to generate

a court-ordered notice to prospective plaintiffs, this Court’s view is that, in general, “Rule

23 should not be used as a device to enable client solicitation.” Escott v. BarChris Const.

Corp., 283 F. Supp. 643, 706 (S.D.N.Y. 1968) (internal quotation marks omitted) (quoting

Cherner v. Transitron Elec. Corp., 201 F. Supp. 934, 936 (D. Mass. 1962)); see also Flanigan v.

Am. Fin. Sys. of Ga., Inc., 72 F.R.D. 563, 563 (M.D. Ga. 1976) (“Rule 23 should not be used

as a device to enable client solicitation.” (internal citation and quotation marks omitted)).

“This is not the purpose of a class action, in which the representative parties litigate

50Although the government “do[es] not dispute that [P]laintiffs have met the numerosity . . .

requirement[],” Def. Resp. at 20 n.11, a proposed class merits certification “only if” it satisfies all

of Rule 23’s requirements, RCFC 23(a). See supra notes 15, 35, and accompanying text; see also

Dukes, 564 U.S. at 350. The Court agrees that the size of the putative class here generally satisfies

RCFC 23’s numerosity requirement — see Pl Mot. at 18 (arguing that “[g]enerally, more than 40

proposed class members satisfies the numerosity requirement”) — but the various numerical

thresholds courts have relied upon are not dispositive per se and only make sense in opt-out class

actions, where a certified class means the named or representative plaintiffs are able to avoid

difficulties associated with joining other parties. As explained, infra, opt-in class actions may still

encounter such difficulties.

51 But cf. Leist v. Shawano Cnty., 91 F.R.D. 64, 67 (E.D. Wis. 1981) (considering whether any

“individual class member has a financial stake likely to provide the incentive for individual

litigation”).

52 Cf. Kutzback v. LMS Intellibound, LLC, 2020 WL 1317345, at *9 (W.D. Tenn. Mar. 17, 2020)

(observing that, under the FLSA, “[s]ome federal courts have held that defendants can seek

individualized discovery as to each opt-in plaintiff, while other courts have limited discovery to

a representative sample” (footnotes omitted)).

44

common issues on behalf of . . . class members.” Maenner v. St. Paul Fire & Marine Ins.

Co., 127 F.R.D. 488, 491 (W.D. Mich. 1989). 53

Here, Plaintiffs have not explained why “a class action would achieve economies

of time, effort, and expenses” or “promote uniformity.” Pl. Mot. at 27 (quoting Barnes, 68

Fed. Cl. at 499). Plaintiffs assert that “joinder of potentially several hundred class

members . . . under RCFC 23(a) is impractical,” and thus urge that “the superiority

analysis should be limited to a comparison between the benefits of individual litigation

versus those of a class action.” Pl. Mot. 28. Given the Court’s analysis above, it is easy to

understand why Plaintiffs seek to avoid a comparison to joinder — there is little

articulable difference between joinder and an opt-in class action (with the exception of

the court-ordered notice pursuant to RCFC 23(c)(2)). Moreover, in the same breath that

Plaintiffs urge this Court to find that the proposed class action is superior to other

methods of resolving the claims at issue, Plaintiffs acknowledge that there are already

“200 plus named Plaintiffs.” Id. 54 This fact undercuts the notion that joinder here is

impracticable; Plaintiffs and their counsel seem to have had no difficulty gathering

would-be litigants. See Bell, 123 Fed. Cl. at 407–08 (rejecting class certification where

“joinder is an available option” and where “[p]laintiffs declined to address . . . the

circumstance in which additional plaintiffs might join the existing action”).

With respect to the pooling of uneconomic claims, a class action could provide

benefits that alternative approaches cannot. “Modern plaintiff class actions” — in

addition to “permitting litigation of a suit involving common questions when there are

53Cf. Robertson, 287 F. App’x at 363 (considering whether there is anything “to be gained from

invoking the notice requirements associated with [class actions that satisfy] Rule 23(b)(3), which

are designed to identify and notify class members who are unaware of the suit”).

54It is far from clear to this Court or the parties whether opt-in plaintiffs have the status of named

party plaintiffs or not (e.g., for discovery purposes). Tr 20:19–25, 21:1–16, 25:2–14, 55:16–25, 56:1–

17; McCoy v. Elkhart Prods. Corp., 2021 WL 5015625, at *1 n.1 (W.D. Ark. Oct. 28, 2021) (noting that

the FLSA, 29 U.S.C. § 216(b), “is clear that a similarly situated employee who opts in to a collective

action is joined as ‘a party plaintiff’” and that a “collective action is merely a more efficient

mechanism to effect permissive joinder of parties than requiring the complaint to be amended by

adding an employee’s name to the docket and their individual allegations to the complaint every

time an employee opts in”); but see Kutzback, 2020 WL 1317345, at *9 (“While it is true that Opt-In

Plaintiffs are ‘party plaintiffs’ as they affirmatively consented to opt into the class, Defendants are

incorrect in stating that all opt-in plaintiffs are subject to full discovery.” (citations omitted));

Fischer v. Fed. Express Corp., 42 F.4th 366, 376–77 (3d Cir. 2022) (explaining that the opt-out “Rule

23(a) [class action] explicitly contemplates the named plaintiff or defendant acting as a

‘representative part[y],’” FRCP 23(a), but observing that “[i]n contrast, an opt-in plaintiff under

[the FLSA] becomes a ‘party plaintiff’” (quoting 29 U.S.C. § 216(b)). By defining FLSA opt-in

plaintiffs as “party plaintiffs,” the statute indicates “opt-in plaintiffs should have the same status

in relation to the claims of the lawsuit as do the named plaintiffs.” Prickett v. DeKalb Cnty., 349

F.3d 1294, 1297 (11th Cir. 2003) (per curiam).

45

too many plaintiffs for proper joinder” — “also may permit the plaintiffs to pool claims

which would be uneconomical to litigate individually.” Phillips Petroleum Co., 472 U.S. at

808–09 (“For example, this lawsuit involves claims averaging about $100 per plaintiff;

most of the plaintiffs would have no realistic day in court if a class action were not

available.”). The problem here is that Plaintiffs made no effort to argue that this

consideration weighs in favor of granting their class certification motion. Pl. Reply at 7

(acknowledging that “Plaintiffs did not address [this] one factor” but arguing that their

omission “does not disprove superiority”). The Court will not make this argument for

the Plaintiffs any more than it will make arguments for the government. WaveLink, Inc.

v. United States, 154 Fed. Cl. 245, 289 (2021) (“[T]he Court will not make this argument for

the government[.]”).

In sum, this Court concludes that Plaintiffs have not carried their burden on

numerosity or superiority, although neither factor clearly favors the government.

V. NEXT STEPS

For the government, this may well turn out to be a case of “be careful what you

wish for” — the fact that the government prevails (for now 55) hardly makes this case’s

management any easier. For example, the government must now decide whether to

pursue a motion to sever some (or all) of the already named plaintiffs and/or to oppose

the joinder of further plaintiffs. And that raises yet a further difficult question: whether

proceeding with perhaps several dozen or hundreds of individual cases would make

everyone’s work easier or harder. The way forward is by no means obvious to this Court.

Accordingly, the parties shall meet-and-confer and submit a joint status report

regarding how this case should proceed. In particular, the parties must provide a

comprehensive case management plan, addressing:

1. how the claims of Plaintiffs who already have joined this case will proceed,

including whether the Court should utilize a bellwether-type approach; 56

55 As noted below, Plaintiffs’ motion is denied without prejudice. See, e.g., Smith v. United States,

156 Fed. Cl. 471, 476 (2021) (denying “Plaintiff’s request for nationwide conditional certification

. . . without prejudice”); Crawley, 2021 WL 252838, at *11.

56 In re Upstream Addicks & Barker, 157 Fed. Cl. at 194, 201–02 (discussing the parties’ “bellwether

approach” in the context of a class action certification motion); 3rd Eye Surveillance, LLC v. United

States, 155 Fed. Cl. 355, 362 (2021) (“The sprawling nature of this case and numerous prior

discovery disputes previously led the court to limit discovery to eleven potential infringing

systems that will serve as bellwethers for further proceedings.” (internal quotation marks

omitted)); Ideker Farms, Inc. v. United States, 151 Fed. Cl. 560, 567 (2020) (discussing “bellwether”

approach); Mississippi v. United States, 2020 WL 837939, at *2 (Fed. Cl. Feb. 20, 2020) (“[T]he parties

are encouraged to consider the procedures employed to adjudicate similar complex, multi-

46

2. how discovery on the merits will be conducted; 57

3. whether, despite having denied Plaintiffs’ motion to certify a class, this Court

nevertheless should facilitate the joinder of additional plaintiffs; 58 and

4. a proposed schedule to resolve this case.

Should the evidence ultimately show that class resolution may be possible for

particular groups of nurses, Plaintiffs may be granted leave to renew their motion for

class certification at a future date.

plaintiff takings cases such as Ideker Farms v. United States, No. 14-183, and In Re Addicks and Barker

(Texas) Flood-Control Reservoirs, No. 17-3000, including the bifurcation of the liability and damages

portions of the cases as well as the selection of representative (or ‘bellwether’) plaintiffs.”); Henry

Hous. Ltd. P’ship v. United States, 121 Fed. Cl. 537, 539 (2015) (explaining that “the court selected

four of the cases to serve as bellwether actions that might represent most of the factual variations

within the larger group, and which when resolved might provide a template for disposition of all

the cases”).

57In an opt-out class action, “[u]nlike a defendant in a normal civil suit, an absent class-action

plaintiff is not required to do anything.” Phillips Petroleum Co., 472 U.S. at 810. But, in an opt-in

class action, there are no absent plaintiffs. This implies, of course, that an opt-in class action

permits discovery from all plaintiffs who join the suit. Cf. McPhail v. First Command Fin. Plan.,

Inc., 251 F.R.D. 514, 517 (S.D. Cal. 2008) (explaining that “a defendant who propounds discovery

upon absent class members requires those members to take some affirmative action to remain in

the class, ‘effectively creating an ‘opt in’ requirement which is inconsistent with the ‘opt out’

provisions of Rule 23’” (quoting On the House Syndication, Inc. v. Fed. Express Corp., 203 F.R.D. 452,

456 (S.D. Cal. 2001))); Carrera v. Bayer Corp., 727 F.3d 300, 307 (3d Cir. 2013) (“A defendant in a

class action has a due process right to raise individual challenges and defenses to claims, and a

class action cannot be certified in a way that eviscerates this right or masks individual issues.”).

58 See RCFC 14(b); RCFC 16(b)(3); RCFC 16(c)(2)(L); RCFC 83(b); Hoffmann-La Roche Inc. v. Sperling,

493 U.S. 165, 170–74 (1989) (explaining that “[c]ourt authorization of notice serves the legitimate

goal of avoiding a multiplicity of duplicative suits” in the context of the Age Discrimination in

Employment Act of 1967, 29 U.S.C. § 621 et seq., and cautioning that “[i]n exercising the

discretionary authority to oversee the notice-giving process, courts must be scrupulous to respect

judicial neutrality”); Doe No. 1 v. United States, 148 Fed. Cl. 437, 439–40 (2020) (discussing

Hoffmann-La Roche in the context of the FLSA and holding that “ a court-facilitated notice process

is both a permissible and effective means of providing plaintiffs with the ability to communicate

with prospective party-plaintiffs in order to assemble a proposed collective action”); cf. United

States v. Cook, 795 F.2d 987, 993 (Fed. Cir. 1986) (discussing trial court’s “ordering production of

names and addresses of potential class members to facilitate notifying them of a pending FLSA

action”); Valte v. United States, 155 Fed. Cl. 561, 573–74 (2021) (discussing Hoffmann-La Roche and

“good case management practices” pursuant to RCFC 83(b) and 16(b)); Swales v. KLLM Transp.

Servs., LLC, 985 F.3d 430, 443 (5th Cir. 2021) (“The bottom line is that the district court has broad,

litigation-management discretion here.”); In re EMC Corp., 677 F.3d 1351 (Fed. Cir. 2012)

(addressing joinder and severance pursuant to FRCP 20).

47

VI. CONCLUSION

For all of the above reasons, Plaintiffs’ motion to certify a class action is, hereby,

DENIED, without prejudice. The parties shall file the joint status report ordered herein

on or before November 21, 2022.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

48