Despite “Significant Differences” Between Rule 23 and RCFC 23 (Rules of the United States Court of Federal Claims), and Despite Rarity of Class Action Certification, Class Actions Are Not Disfavored in Court of Federal Claims
On March 31, 2006, a United States Court of Federal Claims certified a class action under Rules of the United States Court of Federal Claims (RCFC) 23. Filosa v. United States, 70 Fed.Cl. 609 (2006). Though RCFC 23 “is modeled largely” on class action certification under Rule 23, “‘there are significant differences.’” Id., at 610 (quoting RCFC 23, Rules Comm. Note). Though differences are outside the scope of this article. The ruling is noteworthy, however, because it represents only the second time that a class action has been certified by a Court of Federal Claims since RCFC 23 was “completely rewritten” in May 2002. Id. But while recognizing the rarity of the event, the court insisted, “class actions are not disfavored by the united States Court of Federal Claims.” Id., at 611 (citation omitted).
Filosa is a class action brought by nurse care managers employed by the United States Department of Veterans Affairs, Veterans Health Administration (VHA). Filosa, at 611. They provide services to veterans under the MHICM (Mental Health Intensive Case Management Service) Program, which requires that they “field calls that are received [from veterans] on weekends, holidays, evenings, or nights.” Id. at 612. The class action alleges that the nurses failed to receive overtime pay. The court’s opinion provides a detailed analysis of its consideration of numerosity, commonality, predominance, typicality, adequacy of representation, and superiority, and is well worth reading. Defense attorneys are reminded, however, that the discussion is under RCFC 23, not Rule 23. See Filosa, at 611 n.1 (summarizing some of the differences between the rules).