CARSON, JR. v. USA

Filing 76

REPORTED OPINION. Granting in part and denying in part 71 MOTION to Approve Notice and Related Filings for Prospective Class Members. Status Report due by 5/31/2024. Signed by Judge Zachary N. Somers. (taw) Service on parties made.

In the United States Court of Federal Claims
No. 18-1902 C
(Filed: May 9, 2024)
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CARL ROBERT CARSON, JR.,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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MEMORANDUM OPINION AND ORDER
SOMERS, Judge.
Before the Court is Plaintiff’s motion to approve notice to prospective class members.
For the reasons that follow, Plaintiff’s motion is granted-in-part and denied-in-part.
BACKGROUND
On December 11, 2018, Plaintiff filed suit on behalf of himself and all similarly situated
Department of Veterans Affairs (“VA”) supervisory police officers who did not receive weekend
premium pay for work they performed between January 11, 2004, and July 13, 2014. ECF No. 1
at 1. On September 9, 2022, the Court denied the government’s motion to dismiss Plaintiff’s
complaint and granted Plaintiff’s motion for partial summary judgment. Carson v. United States,
161 Fed. Cl. 696, 711 (2022). In granting Plaintiff’s motion, the Court found the government
liable for back pay for the period from January 11, 2004, through July 13, 2014. Id. at 699.
Thereafter, the parties endeavored to resolve damages without the need for class certification.
ECF No. 48. Those efforts failed, and, on July 31, 2023, Plaintiff moved to certify a class of “all
GS-0083-005 Veterans’ Affairs police officers who (1) were employed by the Department of
Veteran’s Affairs (VA) for any period of time between January 11, 2004[,] and July 13, 2014, (2)
worked any weekend shift between January 11, 2004[,] and July 13, 2014[,] and (3) were not
paid weekend premium pay for those shifts.” ECF No. 65 at 1.
On December 20, 2023, the Court certified the class as defined above and instructed the
parties as follows:

In addition, no later than January 19, 2024, Plaintiff shall file a motion seeking the
Court’s approval of a proposed notice to prospective class members complying with
RCFC 23(c)(2)(B). Plaintiff shall include in his filing: the proposed notice, the
proposed opt-in notice form, the proposed plan for the distribution of the notice,
the proposed opt-in period, including the date by which potential members must
opt-in, and the proposed specific method by which the notice will be provided.
Plaintiff shall also indicate whether the government consents to the motion. If not,
the government shall file a response no later than February 9, 2024, and Plaintiff
shall file a reply to any such response by February 19, 2024.
Carson v. United States, No. 18-1902, 2023 WL 8812926 at *5 (Fed. Cl. Dec. 20, 2023).
As directed by the Court, Plaintiff filed his proposed notice, proposed opt-in form, and
the proposed method and deadline for opting into the class. ECF No. 71. Plaintiff informed the
Court that “Counsel for the United States has reviewed this Motion and its attachments and has
advised us that he does not object to the content of the proposed notices.” Id. at 1. The
government, however, does object to the proposed procedures. Id. Plaintiff’s proposed
procedures require the VA “to (1) create and maintain a class website and helpline; (2) prepare
and mail postcard notices to prospective class members; and (3) provide payment within one
month to prospective class members who opt in.” Id.
Plaintiff’s proposed procedure for distributing notice is as follows:
The VA will mail an abbreviated Postcard Notice to all 1,241 present and former
VA employees whom the VA has determined to be due back pay under the Court’s
liability decision. The Postcard Notice will direct the present or former VA
employee to a VA-created and maintained web site where more detailed
information can be found, including the online notice to class members. The
website will include instructions explaining how prospective class members can
opt-in to the class online, and will also let potential class members print an opt-in
form to be submitted via U.S. mail
ECF No. 71 at 7–8. Plaintiff argues that it is appropriate to require the VA to do this because “in
cases where liability has been established, courts have shifted the costs of providing notice to
prospective class members from the plaintiff to the defendant.” Id. at 8. Because the VA “has
maintained employment and contact information for the prospective class members for years and
liability against the VA has already been established[,]” Plaintiff argues the Court should shift
the cost to the government. Id. at 9. In response, the government argues that it is Plaintiff’s
burden “to mail an approved notice, or distribute notice by another method approved by the
Court, to each of the prospective class members, and to bear the cost of this undertaking.” ECF
No. 74 at 2 (internal citations omitted).
Finally, Plaintiff asserts that once the class opt-in period is over “the VA’s payroll system
should enable it to pay by direct deposit the back pay and interest to each prospective class
member who is currently employed by the agency within one month after it finalizes the proper
amount of back pay (plus interest) owed to each individual.” ECF No. 71 at 9. Similarly,
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Plaintiff contends that “the Department should be able to process and send checks to former
employees or their heirs within the same one-month period.” Id. at 10.
DISCUSSION
A.

Legal Standard

Rule 23 of the Rules of the United States Court of Federal Claims (“RCFC”) governs
class actions. RCFC 23(c)(2)(B) requires that “the court [] direct to class members the best
notice that is practicable under the circumstances, including individual notice to all members
who can be identified through reasonable effort.” Although “there are not rigid rules for
providing class notice, the chosen notice must fairly appraise the class members of the [class
certification] and the options open to them in connection with the proceeding.” Silver Buckle
Mines, Inc. v. United States, No. 13-476, 2024 WL 659948 at *2 (Fed. Cl. Feb. 16, 2024) (citing
Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 113-14 (2d Cir. 2005)). Moreover, “[t]o
be adequate, the notice must be understandable to the average class member.” Id.; see also
RCFC 23(c)(2)(B) (“The notice must clearly and concisely state in plain, easily understood
language [the required content].”). In addition, RCFC 23 governs the resolution of a class
action, providing that “[t]he claims, issues, or defenses of a certified class may be settled,
voluntarily dismissed, or compromised only with the court’s approval.” RCFC 23(e) (emphasis
added). When a “proposal would bind class members, the court may approve it only after a
hearing and only on finding that it is fair, reasonable, and adequate[.]” RCFC 23(e)(2).
B.

The Court approves the proposed notice and the proposed opt-in notice form

Pursuant to the Court’s previous order, Plaintiff proposed notice, an opt-in notice form, a
plan for the distribution of the notice, an opt-in period, including the date by which potential
members must opt-in, and a specific method by which the notice will be provided. See generally
ECF No. 71; see also Ex.’s 1–3. As Plaintiff stated, “the parties have agreed on [Plaintiff]’s
proposal for the wording of the notice, the use of postcards for abbreviated notice, the use of a
website for providing more information, and the process for opting into the class.” ECF No. 75
at 1. The Court has independently reviewed the contents of the proposed notice and
accompanying documents, and they are approved subject to the changes discussed in subsections
C and D of this opinion.
C.

The Court declines to shift the burden of paying for and managing the notice from
Plaintiff to the government

The Court declines to require the government to assume Plaintiff’s burden of managing
the notice process. Generally, “a representative plaintiff is expected to bear the cost of notice to
the class as part of the ‘burden of financing his own suit.’” Barnes v. United States, 72 Fed. Cl.
6, 7 (2006) (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178–79 (1974)). Even though
there ordinarily “‘is no warrant for shifting the cost of the representative plaintiff’s performance
of these tasks to the defendant,’ the court, in its discretion, may order a defendant to ‘perform
one of the tasks necessary to send notice, such as identification,’ where the defendant can do so
with greater efficiency or less expense than the plaintiff.” Id. at 7–8 (quoting Oppenheimer
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Fund, Inc. v. Sanders, 437 U.S. 340, 350, 354–56 (1978)). However, “courts must not stray too
far from the principle underlying [Eisen] that the representative plaintiff should bear all costs
relating to the sending of notice because it is he who seeks to maintain the suit as a class action.”
Oppenheimer Fund, Inc., 437 U.S. at 359. Plaintiff cites a variety of cases to support his
proposition that “in cases where liability has been established, courts have shifted the costs of
providing notice to prospective class members from the plaintiff to the defendant.” ECF No. 71
at 8 (citing cases). According to Plaintiff, because liability has been established in this case, it is
appropriate to require the government to carry the burden of paying for and notifying the
prospective class by “establish[ing] a website and helpline for the class action and mail[ing]
Postcard Notices to each prospective class member.” Id.
Despite Plaintiff’s urging, there are at least three reasons the Court will not deviate from
the general rule that requires a plaintiff to carry the “burden of financing his own suit.” Eisen,
417 U.S. at 178–79. First, Plaintiff asks the Court not only to require the government to pay for
the cost of the notice but also to require the government to manage the process of providing
notice to the class. Plaintiff, though, provides no binding precedent to support his position.
Plaintiff is correct that “in cases where liability has been established, courts have shifted the
costs of providing notice to prospective class members from the plaintiff to the defendant.” ECF
No. 71 at 8 (emphasis added). However, Plaintiff seeks not just to shift cost of notice but rather
seeks to require the government to establish a website, mail approved notice postcards, and
maintain a helpline to facilitate notice to the prospective class. Id. at 6. Plaintiff’s request is
easily distinguishable from his cited authority. For example, in Catlett v. Missouri Highway and
Transp. Com’n., the district court ordered the Missouri Highway Commission to bear the cost of
mailing the notices, the cost of publishing the notice in newspapers, and had to “establish a fund
in the amount of $300.00 to pay for telephone costs incurred in the process of locating class
members. Plaintiff’s counsel are to render an itemized accounting for the disbursement from this
fund . . . .” 589 F. Supp. 949, 952. (W.D. Mo. 1984). As requested by Plaintiff, the government
here would not be merely reimbursing the costs of the notice provisions but rather fronting the
costs and the manpower required to provide notice to the prospective class members. Moreover,
Plaintiff offers no evidence to support a finding that the government is in a position in which it
could do these tasks with “with greater efficiency or less expense than the plaintiff.” Barnes, 72
Fed. Cl. at 8. Rather, all Plaintiff offers is that the government “has maintained employment and
contact information for the prospective class members for years . . . .” ECF No. 71 at 9.
Second, only one of the cases cited by Plaintiff involves transferring costs to the federal
government in a suit brought under the Tucker Act. That case, Barnes v. United States, is easily
distinguishable. In Barnes, Judge Allegra required the government to bear the cost of identifying
potential class members because “defendant [was] in sole possession of the relevant employment
records . . . [and] it [was] uniquely position[ed] to [identify potential class members.]” Id. at 9.
The government has already identified potential class members and shared that list with Plaintiff
and the Court. See ECF No. 65-1–9. Thus, unlike the situation in Barnes, Plaintiff has the
requisite information needed to provide the notice. Moreover, Plaintiff asks the Court to require
the government to carry the more substantial burden of creating a website and a helpline, mailing
notices to all potential class members, and collecting all the responses to facilitate a settlement.
See generally ECF No. 71. This is a far cry from the identification required in Barnes; it is more
akin to requiring the government to do Plaintiff’s job for him. Unlike in Barnes, Plaintiff has not
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established that the government is in a position in which it can do these tasks more efficiently
than Plaintiff. Even in Hartman v. Wick, in which the district court required the federal
government to bear the full expenses of notifying the potential class and undertake the burden of
notifying the entire potential class, the class action discrimination claim was brought against an
official of the United States Information Agency—not the federal government directly. 678 F.
Supp. 312, 329–331 (D.D.C. 1988). This is the only case cited by Plaintiff in which any
substantive burden is shifted from the plaintiff to a federal defendant. But the Court declines to
follow the Hartman burden shifting because it is unclear that doing so would result in a more
efficient form of notice and settlement. For instance, if the Court were to shift the burden, it
likely would require the government to engage with a contractor to create the website and
telephone helpline and distribute the postcard notice. It is unclear to the Court how requiring the
government to engage a contractor, presumably through either a sole source award or a
competitive procurement (that would then be potentially subjected to a challenge at the
Government Accountability Office or this Court), would be more efficient than Plaintiff and
class counsel (both private parties) engaging a contractor to do the same tasks.
Finally, in reply, Plaintiff concludes that “[b]ecause the VA has offered no good reasons
it should not—as the liable party—bear the responsibility for the tasks and costs for providing
[Plaintiff]’ proposed notice, [the motion] should be granted.” ECF No. 75 at 4–5. This argument
turns Plaintiff’s requested deviation from the general rule on its head—it is Plaintiff, not the
government, who holds the burden to convince the Court to shift the cost. See Bakov v.
Consolidated World Travel, Inc., 68 F.4th 1053, 1059 (“This does not mean that costs must be
shifted when liability has been found; the ultimate decision rests in the district court’s
discretion.”). As the government points out, Plaintiff “seeks to foist the burden and
responsibility of managing the tasks of class action notice upon the Government, which is
properly his to bear.” ECF No. 74 at 1. Even if the Plaintiff was correct that the Court could
shift both the cost and the actual management of the notice distribution to the government, the
choice to do so still lies within the discretion of the Court. See Bakov, 68 F.4th at 1059. In short,
while Plaintiff may have established that the Court can shift the cost, he has failed to establish
that it should.
The Court chooses to exercise its discretion and will apply the general rule. Therefore,
the notice and the proposed procedure must be modified to comport with this decision. The
notice shall no longer list the VA’s Mailing Address as it does in Exhibit 2 and Exhibit 3.
Plaintiff shall collect these notices and manage the website and helpline. In keeping this burden
with Plaintiff, the Court believes that it will result in “the best notice that is practicable under the
circumstances[.]” RCFC 23(c)(2)(B).
D.

The Court rejects the payment deadline put forth by Plaintiff

Finally, Plaintiff states that “[b]y July 1, 2024, the Department of Veterans’ Affairs will
pay each eligible person who has timely opted into the class the amount shown on the list of
1,241 eligible present and former employees, plus interest at the rates shown on the OMB web
site.” ECF No. 71 at 6. The government has not challenged this deadline but the Court rejects
imposing such a deadline on the government because this lawsuit is now proceeding as a class
action. As such, RCFC 23 governs the proceedings in this court. RCFC 23(e) states that “[t]he
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claims, issues, or defenses of a certified class—or a class proposed to be certified for purposes of
settlement—may be settled, voluntarily dismissed, or compromised only with the court’s
approval.” Furthermore, “[i]f the proposal would bind class members, the court may approve it
only after a hearing and only on finding that it is fair, reasonable, and adequate[.]” RCFC
23(e)(2). As the payment of back pay would bind class members, the Court’s rules require it to
hold a hearing to determine whether any settlement is fair, reasonable, and adequate. Id. As
such, the Court rejects the temporal requirement that Plaintiff has attempted to place on the
payment of back pay and interest. Once the notification process is complete, the class is
identified, and a settlement is proposed, the Court will review the proposed settlement to ensure
that it is “fair, reasonable, and adequate[.]” Id. To do anything else would be inconsistent with
the Court’s rules.
CONCLUSION
Plaintiff’s Motion to Approve Notice and Related Filings for Prospective Class Members
is GRANTED-IN-PART and DENIED-IN-PART. The parties shall file a joint status report
attaching the provisionally approved notice, subject to the changes outlined above, on or before
May 31, 2024.
IT IS SO ORDERED.

s/ Zachary N. Somers
ZACHARY N. SOMERS
Judge

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