In the United States Court of Federal Claims

No. 18-l838

(Fiied; Aprii 5, 2019)

(NO'I` 'I`O BE PUBLISHED)

***$********$*$*$*$*$$*$*$$**$$***

)

DICHONI)RA BOWDEN, )

)

Plaintiff, )

)

v. )

)

UNITED STATES, )

)

Defendant. )

)

**$***$****$$$****$****$*$***$****

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<er Act does not, however, provide substantive rights Um'rea’ States v. Testcm, 424 U.S. 392,
398 (1976). To establish this court’s jurisdiction under the Tucker Act, “a plaintiff must identify
a separate source of substantive law that creates the right to money damages.” Fisher v. United
Stares, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing United States v.
Mitchell, 463 U.S. 206, 216 (1983); Testan, 424 U.S. at 398). Claims for back pay under the
Back Pay Act are money-mandating 5 U.S.C. § 5596(b); see also Testan, 424 U.S. at 404;
Worthington v. United States, 168 F.3d 24, 26 (Fed. Cir. 1999). So too are claims made by
federal employees under the FLSA. See 29 U.S.C. §§ 203(e)(2)(A), 216(b); see also Abbey v.
Unitecl States, 745 F.3d 1363, 1368-69 (Fed. Cir. 2014); Bz'llings v. Um'led Srates, 322 F.3d 1328,
1332-33 (Fed. Cir. 2003); Zumerling v. Devine, 769 F.2d 745, 748-49 (Fed. Cir. 1985).

A claim in this court is “barred unless the petition thereon is filed within six years after
such claim first accrues.” 28 U.S.C. § 2501. The six-year statute of limitations specified in
Section 2501 is jurisdictional, John R. Sand & Gravel Co. v. Un.iled States, 552 U.S. 130, 133-36
(2008), and is not susceptible to equitable tolling or any of the other doctrines that would excuse
an untimely claim, icl. at 133-34. “Courts created by statute can have no jurisdiction hut such as
the statute confers.” Christianson v. Colf lndus. Operaling Cor'p., 486 U.S. 800, 818 (1988)
(quoting Sheldon v. Sill, 49 U.S. (8 How.) 441, 499 (1850)).

l\/[s. Bowden, as plaintiff, must establish jurisdiction by a preponderance of the evidence.
Trusred Integration, Inc. v. United Stafes, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Reynolds
v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). When ruling on the
government’s motion to dismiss for lack of jurisdiction, the court must “accept as true all
undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor
of the plaintif .” Id. (citing Henke v. Unitecl States, 60 F.3d 795, 797 (Fed. Cir. 1995)). Yet,
“[i]f a court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of
law.” Gmy v. Um'ted States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCarclle, 74 U.S. (7
Wall.) 506, 514 (1868); Thoen v. Unirecl Stares, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); RCFC

 

l2(h)(3) (“lf the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”).

ANALYSIS
A. Ms. Bowden ’s Claim is Outside the Six Year Sfarure ofLimitaIions

The alleged conduct giving rise to l\/ls. Bowden’s complaint occurred between the years
of 2005 and 2008. See Compl. at 3. During this three-year period, l\/Is. Bowden claims she
Worked numerous night and weekend shifts as a certified nursing assistant for the VA. Compl. at
1, 3. According to l\/ls. Bowden, working these undesirable shifts should have entitled her to
premium pay under 38 U.S.C. § 7453. Compl. at 1, 3. Ms. Bowden contends that she was not
paid the premium for these shifts and therefore seeks compensation under the Back Pay Act.
Compl. at 3 (citing 5 U.S.C. § 5596).

In the circumstances, the court does not have jurisdiction over Ms. Bowden’s claim under
the Back Pay Act. lndeed, even if the court takes all of Ms. Bowden’s contentions as true, it still
could not provide the relief that Ms. Bowden seeks. The last of the alleged violations of the
Back Pay Act occurred on November 11, 2008. Compl. at 3. But 28 U.S.C. § 2501 requires that
“{e]very claim of which the United Court of Fedcral Claims has jurisdiction shall be barred
unless the petition thereon is filed within six years after such claim first accrues.”

Claims accrue “as soon as all events have occurred that are necessary to enable the
plaintiff to bring suit, i.e. , when ‘all events have occurred to fix the [g]overnment’s alleged
liability, entitling the claimant to demand payment and sue here for h[er] money.”’ Marfinez v.
United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) (quoting Noger Elec. Co. v.
United States, 368 F.2d 847, 851 (Ct. Cl. 1966)) (other citations omitted). Back pay claims,
however, are “considered to be ‘continuing’ in nature, accruing anew each time a payment is
due.” Acker' v. United Stales, 23 Cl. Ct. 803, 804 (1991) (quotation and citation omitted). In
other words, although a plaintiffs claim accrues (1`. e. allows the plaintiff to file suit) after each
non-payment of entitled pay, every new time the plaintiff is not paid the earned pay “refreshes”
the claim. Consequently, the statute of limitations starts its run from the most recent non-
payment of earned wages. See Jones v. United Stafes, 113 Fed. Cl. 39, 41 (“Under [28 U.S.C. §
2501], plaintiffs’ claims for Sunday premium pay accrued each time payment was due,
regardless of whether plaintiffs knew that they were entitled to seek these premiums.”) (citing
Oceanic Steamship Co. v. United States, 165 Ct. Cl. 2l7, 255 (1964)) (other citations omitted).

in this case, I\/Is. Bowden would have had to have filed her complaint by November 11,
2014, for this court to have jurisdiction But as Ms. Bowden filed her complaint over five years
after November 11, 2014, it is well outside of the statute of limitations and therefore outside the
court’s jurisdiction See, e.g., John R. Scmol & Gravel Co., 552 U.S. at 133-36.4

l\/Is. Bowden’s claims are also not subject to equitable tolling or any other doctrine that
would excuse the five-year delay. E.g., Jolm R. Sana' & Gravel Co., 552 U.S. at 136. 'l`he Back

 

4l\/ls. Bowden’s FLSA claim is subject to a shorter two-year statute of limitation, see 29
U.S.C. § 255(a), except for willful violations, which are subject to a three-year limitations
period, icl, Accordingly, l\/Is. Bowden’s claim is untimely under the FLSA as well.

 

Pay Act “plainly does not serve to alter or extend the statute of limitations established by [28
U.S.C. § 2501}.” Jones, 113 Fed. Cl. at 42. Thus, in short, Ms. Bowden’s claim is outside of the
statute of limitations and cannot be saved by any equitable doctrine or the money-mandating
statutes she cites.

'l`he time for l\/ls. Bowden to file suit against the government was within the six-year
period following the final accrual of her claim, i.e. , any time before November 11, 2014. Ms.
Bowden also could have sought relief by opting-in to the Quimby lawsuit that settled tens of
thousands of nearly identical claims against the VA in 2012.5 As l\/ls. Bowden did not comply
with the former, and the court is unable to determine the extent of her participation in the latter,
her complaint must be dismissed for lack of jurisdiction pursuant to RCFC 12(b)(1).

While the court is not without sympathy for Ms. Bowden, it is bound by the jurisdictional
limitations prescribed by Congress. Statutes of limitations are designed to ensure the prompt and
just adjudication of disputes and to balance competing interests See Jolm R. Sand & Gravel Co. ,
552 U.S. at 133. And although the application of a statute of limitations may seem unfair on an
individual level, these laws “seek . . . to achieve [aj broader system [ofj related goal[s], such as
facilitating the administration of claims, limiting the scope of a governmental waiver of
sovereign immunity, or promoting judicial efficacy.” Id. (citations omitted).

CONCLUSION
For the reasons stated, the court finds it does not have jurisdiction over l\/ls. Bowden’s
claims. Therefore, the government’s motion to dismiss is GRANTED. 'l`he Clerk shall enter
judgment accordingly.(’

No costs.

lt is so ORDERE]).

CharlesVF.' Lettow
Senior ludge

 

5The court is unable to retrieve the 58,000+ list of names of individuals who opted-in to
the Quimby class action to determine if Ms. Bowden opted-in. Apparently, 58,479 individuals
sought to opt-in, but only 44,019 worked hours that made them eligible. See Quiml)y, 107 Fed.
Cl. at 129 & n.3. 'l`he remaining 14,460 individuals were given the opportunity to establish their
eligibility to the Class Action Administration by producing documentation to justify their
entitlement Id. at 129 n.3. ln all events, that case is now closed. See supra, at 2 n.3.

6"l`he court requests that the Clerk provide a copy of this opinion and order to class
counsel in Quz`mby, lra M. Lechner, Washington, D.C.

5

 

