In the United States Court of Federal Claims
No. 18-l838
(Fiied; Aprii 5, 2019)
(NO'I` 'I`O BE PUBLISHED)
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DICHONI)RA BOWDEN, )
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Plaintiff, )
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v. )
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UNITED STATES, )
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Defendant. )
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Dichondra Bowden, pro se, Moreno Valley, CA.
lgor Helman, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With him on the briefs Were
Joseph H. Hunt, Assistant Attorney General, Civil Division, Robert E. Kirschrnan, Jr., Director,
and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C.
{)PINION AND ORDER
LETTOW, Senior Judge.
Plaintiff Dichondra Bowden Was for a number of years a certified nursing assistant
employed by the Department of Veterans Affairs (“VA”) at the Loma Linda VA Hospital in
California. She has filed suit seeking premium pay for work on nights and Weekends, invoking
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(1')), and the Bacl< Pay Act, 5 U.S.C. §
5596. Pending before the court is the government’s motion to dismiss Ms. Bowden’s complaint
for lack of jurisdiction Def.’s Mot. to Dismiss for Lack of lurisdiction (“Def.’s l\/lot.”), ECF
No. ll. Ms. Bowden has responded in opposition, see Pl.’s Mot. to Challenge Jurisdiction &
Request for Judgrnent (“Pl.’s Opp’n”), ECF No. 12, and defendant has filed a reply, Def.’s Reply
in Support of its Mot. to Disrniss for Lack of Jurisdiction (“Def.’s Reply”), ECF No. 13.
For the reasons stated in this opinion, the court concludes that Ms. Bowden’s complaint
falls outside the six-year statute of limitations for claims arising in this court Therefore, the
court lacks jurisdiction and the government’s motion to dismiss the complaint is GRANTED.
BACKGROUND
Ms. Bowden filed her complaint on November 19, 2018. ln her complaint, Ms. Bowden
represents that she worked for the VA as a certified nursing assistant from July l2, 2005 to
August 2, 2017. Compl. at l.f During her employment, Ms. Bowden alleges that she was
routinely “scheduled to work Saturday[s], and regularly work[ed] nights between the hours of 6
PM and 6 Al\/I and on weekends.” Compl. at l. She avers that despite working these
“undesirable hours” from July 6, 2005 to November ll, 2008, she never received any “premium
pay” pursuant to 38 U.S.C. § 7453(b) and (c). Compl. at 3.2 For relief, l\/ls. Bowden requests
813,106.48 in “unpaid accrued and accumulated back pay,” plus interestl Compl. at 3, 5.
l\/[s. Bowden contends that she was aware of the non-payment when it occurred and
“notiiied her [s]upervisor of the unexplained changes on plaintiffs leave and earning statement,
however the [d]epartrnent did not contact [] payroll.” Compl. at 3. Likely due to the
department’s alleged non~action, Ms. Bowden also claims she reached out to her union
representative for “assistance [] because it has recently come to my attention that l have not been
paid (Saturday [p]remium), since l began working in [J]uly 2005.” Compl. at 5 g Compl. Ex. 4a
at 5 (e-mail from Ms. Bowden to Dewanda l\/litchell on August 3 l, 2008). Extended
communications followed between Ms. Bowden, her union representative, and other employees
of the VA during 2008 before her union filed a formal grievance in 2009. See Compl. Ex. 4a at
8-14. The complaint provides no other communication from the VA to Ms. Bowden until she
was sent a copy of an e-rnail dated July 31, 2018 from a VA employee to another VA employee,
stating that “l\/ls. Bow[d]en is tentatively part of the Quimby law[]suit that is currently being
worked [out].” Compl. Ex. 4a at l2.3 But as the Quimby class action lawsuit settled in 2012, the
basis for or relevance of the VA’s e~mail on July 31, 2018 is not readily apparent See supra,
note 3.
fAs Ms. Bowden’s complaint is not numbered, references to the complaint will use the
assigned ECF page numbers
238 U.S.C. § 7453(b) requires that “[a] a nurse performing service, any part of which is
within the period commencing at 6 [PM] and ending at 6 [Al\/l], shall receive additional pay for
each hour of such service.” 38 U.S.C. § 7453(0) similarly requires that “[a] nurse performing
service, any part of which is within the period commencing at midnight Friday and ending at
midnight Sunday, shall receive additional pay for each hour of such service.”
3The “Quimby lawsuit” is a reference to an opt-in “class action lawsuit brought on behalf
of current and fenner employees of the [VA].” Quz'mby v. United States, 10’7 Fed. Cl. 126, 128
(2012). The case was settled in 2012 with a total settlement fund of nearly 874 million dollars
and over 45,000 verified eligible class members ld. at 128»29. According to a website
established by the class attorneys, “this case is closed to any new claims and to any new appeals;
final review of existing appeals will be completed by June 8, 2015.” See Qufmby v. Unitea'
Smres, Home, https://Www.vabackpay.comjDefault.aspx (last accessed March 29, 2019). The
court is unable to determine the extent of Ms. Bowden’s participation in the 2012 Quimby class
action. lt is not apparent Whether she opted-in to the litigation or if she received any funds from
the settlement The e-mail of July 3l, 2018, did state that Ms. Bowden may be entitled to some
premium pay as part of the settlement, and for the exact amount that she now seeks See Compl.
EX. 4a at 12.
2
Soon after Ms. Bowden filed her complaint in this court, however, appropriations to the
Department of Justice lapsed. See Order Granting [suspension of casej (Jan. 18, 2019), ECF No.
8. Once funding was restored and the case resumed, the government moved to dismiss Ms.
Bowden’s complaint on February 7, 2019, pursuant to RCFC 12(b)(1) for lack of jurisdiction
See generally Def.’s l\/lot. In the motion, the government argues that l\/ls. Bowden’s claim is
time barred because it is subject to the Tucker Act’s six-year statute of limitations ld. at 3-5.
Ms. Bowden responded in opposition to the government’s motion on March 14, 2019, arguing
that she had properly submitted “wage claims . . . to a joint grievance committee pursuant to the
provisions of [the pertinent] union’s collective-bargaining agreement.” Pl.’s Opp’n at 1. The
government’s reply emphasizes that “the limitations period under the FLSA is shorter than the
six-year period under 28 U.S.C. § 2501.” Def.’s Reply at 1 (emphasis in original).
STANDARDS FOR DECISION
Rule l Z(b) (l) - Lack of Sul)ject-Matler Jw'isclictlon
'l`he Tucker Act provides this court with jurisdiction over “any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 149l(a)(l). The
Tucl