taken Sunday leave under each of the four "leave with pay" statutes. Defendant notes that the different statutes contain slightly different wording. This argument is unpersuasive, however, because the Federal Circuit has explicitly held that the differences in wording among the leave-with-pay statutes are not significant. Lanehart, 818 F.2d at 1582.
Turning to Rule 23(b), plaintiffs primarily argue that the proposed class falls within Rule 23(b)(1)(A), which permits a class action if "the prosecution of separate actions by or against individual members of the class would create a risk of . . . inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class." Whether the proposed class meets this requirement presents a close question.
On the one hand, the government is required by practical circumstances to deal with all putative class members in the same way. See Newberg on Class Actions § 4.08 (2d ed. 1985); Robertson v. National Basketball Ass'n, 389 F. Supp. 867, 901 (S.D.N.Y. 1975). It would be problematic, as well as administratively unworkable, for federal employees' entitlement to Sunday premium pay to depend on the result of their individual litigation.
On the other hand, there is no genuine risk of "inconsistent or varying adjudications" on the question of liability, because the Federal Circuit has now ruled on the precise issue raised here. It is significant in this regard that appeals from District Courts as well as the Court of Federal Claims in federal compensation disputes go to the Court of Appeals for the Federal Circuit. As a result, the Armitage decision is binding as authority in all such cases.
There is some authority for certifying a Rule 23(b)(1)(A) class action to protect plaintiffs from "non-acquiescence," i.e., the government's failure to apply a holding government-wide, effectively forcing each individual plaintiff to litigate the issue to get relief. Duggan v. Bowen, 691 F. Supp. 1487, 1503 & n.22 (D.D.C. 1988). While this concern certainly appears to be implicated here, the approach does not find support in the literal language of Rule 23(b)(1)(A). That provision requires a risk of inconsistent adjudications. In the end, there is no such risk here.
In the alternative, plaintiffs propose that the class be certified under Rule 23(b)(3), which permits a suit to be maintained as a class action if "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
First, common questions of law do not "predominate" in this case. Rather, there is only a single common question: the government's liability for Sunday premium pay on days when employees take paid leave. That issue, moreover, has been resolved in another forum, the Court of Appeals for the Federal Circuit. The remaining issues -- whether each plaintiff was "regularly scheduled" to work on Sundays, whether the plaintiff took leave under one of the leave-with-pay statutes, and the amount of backpay to which he or she is entitled -- are all "questions affecting only individual members." In addition, a Rule 23(b)(3) class action requires "individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2). With a class as numerous as that proposed, the notification and opt-out procedures are likely to be extremely difficult to manage, a consideration expressly cited in the text of Rule 23(b)(3) as relevant to the appropriateness of class certification.
In light of all the circumstances, it would not be proper to certify the proposed class under either Rule 23(b)(1)(A) or Rule 23(b)(3).
* * * *
For the foregoing reasons, it is this 9th day of August, 1993, hereby
ORDERED: that plaintiffs' motion for partial summary judgment should be, and is hereby, GRANTED as to Count II and DENIED as to Count I; and it is further
ORDERED: that defendant's motion for summary judgment should be, and is hereby, GRANTED as to Count I and DENIED as to Count II; and it is further
ORDERED: that Count I is DISMISSED pursuant to Fed. R. Civ. P. 56; and it is further
DECLARED: that plaintiff Murphy is entitled to receive Sunday premium pay for hours regularly scheduled for work on Sunday, but which were not worked due to periods of authorized leave, from May 22, 1985; and it is further
ORDERED: that plaintiffs' motion for class certification as to Count I is DENIED as moot; and it is further
ORDERED: that plaintiffs' motion for class certification as to Count II is DENIED; and it is further
ORDERED: that counsel shall attend a status conference in this matter on September 17, 1993 at 9:30 A.M. in Courtroom No. 3.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE