This lawsuit is about whether the VA violated federal pay statutes by failing to pay a supplemental lump-sum payment to former VA employees after an annual COLA increase or other pay increase went into effect during the period of the former employee’s unused annual leave (projecting forward from the date of retirement, separation, or death the number of days of unused annual leave). The Plaintiffs in the lawsuit claim that the VA did not include in a supplemental lump-sum payment for unused annual leave the pay increase that the employee would have earned if he or she had remained a VA employee for the period of their unused annual leave since April 7, 1993.
(As a separate matter, this lawsuit also applies to former VA employees who retired, separated, or died between April 7, 1993 and September 30, 1997 who were paid Sunday premium pay in the pay period immediately before they retired, separated, or died.)
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In a class action lawsuit, one or more people called “Class Representatives” (in this case, several retired employees of the VA) sue on behalf of other employees who have similar claims. The former employees who “opt-in” are called a “Class,” or “Class Members.” The people who sued – and all Class Members like them – are the “Plaintiffs.” The United States is called “Defendant.” In a class action in the United States Court of Federal Claims in Washington, D.C., one Court resolves the issues for all Class Members who choose to join the lawsuit.
The Court decided that this lawsuit can be a class action and move towards a trial because it meets the requirements of Rule 23 of the Rules of the United States Court of Federal Claims, which governs class actions in the United States Court of Federal Claims. Specifically, the Court found that:
THE CLAIMS IN THE LAWSUIT
The Plaintiffs are asking for money damages as back pay for the amount of a supplemental lump-sum payment for unused annual leave that they claim was not paid to all eligible former employees who file an “opt-in claim form” as Class Members, plus interest to be paid to all those Class Members, depending on your pay grade, the date that you retired, or separated (or the date of death of your family member who was a VA employee), and how many hours of unused annual leave you had in your account on that date during the period. This means that if you retired or separated from the VA with unused annual leave, you may be eligible for a significant payment when and if the Court finds that the VA did not comply with the law, if you file an official “opt-in claim form.” Some Class Members may be entitled to more or less depending on their individual circumstances.
Defendant denies Plaintiffs’ allegations. Specifically, Defendant asserts that there has been no systematic failure by the VA to properly pay its former employees who retired, separated, or died the proper lump-sum payment for their accumulated, unused annual leave. In addition the Defendant states that even if payments are due to some or all class members, interest should not be paid on those payments.
The Court has not decided whether the United States or the Plaintiffs are correct. By establishing the Class and issuing this Notice, the Court is not suggesting that the Plaintiffs will win or lose the case. The Plaintiffs must prove their claims at trial. This litigation is currently in the early pretrial stage.
Plaintiffs seek back pay and interest for the supplemental lump-sum payment for unused annual leave that they claim was not paid by the VA. Plaintiffs also seek attorney fees and costs.
No money is available now because the Court has not yet decided whether the United States did anything wrong, and the two sides have not settled the case. There is no guarantee that money ever will be obtained. If money is obtained and you decide to become a part of this Class Action, you will be notified about your share.
WHO IS IN THE CLASS ACTION
You will need to decide whether you wish to be included in this Class Action. You are not included in the case unless and until you fill out the “opt-in claim form” located on this website, or by calling 1-877-264-9581 to request that a form be mailed directly to you. You may submit an “opt-in claim form” either by this website or by mail. The Rules of the Federal Court require that Class Members chose to “opt-in” to a class action. If you fit the description in the next question, you may opt-in and join this Class Action. If you choose to do nothing and to be excluded from the Class, you will be forever excluded from receiving any supplemental payment from this lawsuit if and when any money is available.
The Court decided that the Class consists of:
All employees as defined by 5 U.S.C. § 2105 who retired, died, or separated since April 7, 1993 from employment by the Department of Veterans Affairs, and who upon retirement, death, or separation were eligible for a lump-sum payment for unused annual leave pursuant to 5 U.S.C. §§ 5551-5552, and
The Court’s description of Class Members was written for the sole purpose of determining the identity of those persons who wish to be involved in this Class Action. The fact that the Court wrote the description of the Class does not mean that the Court has decided whether the United States has done anything wrong.
If you are not sure whether you can be included in this Class Action, you can contact the Class Administrator in this case by toll free telephone at 1-877-264-9581 or by mail at the address provided in the answer to question 12.
You can either file your “opt-in claim form” directly online now with the independent Class Administrator, or you can download and print out the “Opt-In Claim Form” and mail it directly to the Administrator, or you can call 1-877-264-9581 toll free to have a form mailed directly to you which you can send back by mail. The quickest, easiest, and more cost effective way to file your form is to do so now directly by the Internet through this website. If you file your “opt-in claim form” on the Internet on this website, you must do so no later than midnight Eastern Standard Time (EST) on April 24, 2012 ; or if you submit your “opt-in claim form” by mail, it must by postmarked no later than April 24, 2012 . Do not delay.
The name and address of the Class Administrator is:
Lump-Sum Class Administrator
PO Box 2730
Portland, OR 97208-2730
The toll free telephone number to request that an “opt-in claim form” be mailed to you is 1-877-264-9581.
If you mail your “opt-in claim form”, you must put the appropriate amount of postage stamps on the envelope in order to file your claim. Your “opt-in claim form” must be postmarked no later than April 24, 2012 . If you mail your “opt-in claim form” and it is not postmarked by April 24, 2012 , you will be permanently excluded from the Class in this case and you will not be able to recover any back pay and interest from this case forever if and when the Court finds that the VA violated the law.
As a member of the Class your rights in this litigation will be represented by the Class Representatives and Class Counsel. You will receive the benefit of, and be bound by, all rulings, orders, or judgment entered or any settlement approved by the Court, whether favorable or unfavorable. If you choose to participate in this case by submitting an “opt-in claim form” either by filing directly online or by calling toll free 1-877-264-9581 to get a form by mail that you can fill out and send back to the Class Administrator, you will not be required to pay any attorneys’ fees or costs related to the case.
If you do not submit an “Opt-In Claim Form” directly by the Internet no later than midnight eastern standard time (EST) on April 24, 2012 , or by mail postmarked on or before April 24, 2012 , you will be barred from participating as a Class Member in this case and you will not receive any monetary recovery from either a trial or settlement. However, you retain the right to sue the VA on your own about the same legal claims that have been alleged in this lawsuit and you will not be legally bound by the Court’s judgment in this class action. If you decide to pursue your claim independently, outside this class action, you are encouraged to do so immediately and consult with your personal attorney immediately because certain statutes of limitations may bar or limit your claims. You are entitled to enter an appearance in this matter through private counsel if you desire. If you choose to hire your own lawyer, you will personally have to pay that lawyer.
THE LAWYER REPRESENTING CLASS MEMBERS
The Court decided that "Class Counsel" is qualified to represent you and all Class Members. Class Counsel is experienced in handling similar cases against the United States and other employers. If you choose to file an "opt-in claim form", you will have agreed to legal representation by Class Counsel in this case. Address all your questions only to the Class Administrator at the address noted in the answer to question 12. The Court has requested that you do not call or write the United States Court of Federal Claims or the Clerk of the Court.
You do not need to hire your own lawyer because Class Counsel is working on your behalf. But, you are permitted to hire your own lawyer if you would like to do so. For example, you can ask him or her to appear in Court for you if you want someone other than Class Counsel to speak for you. However, if you choose to hire your own lawyer, you will personally have to pay that lawyer.
If Class Counsel succeeds in recovering money for the Class, he will ask the Court for his fees and expenses. You will not have to pay these fees and expenses. If the Court grants Class Counsel’s request, the fees and expenses would either be deducted from any money obtained for the Class, and/or paid separately by the United States. If the Class Counsel’s fees and expenses are paid out of the money obtained for the Class, there will be a reduction in the amount available for distribution to Class Members, and it may reduce the amount of money you may be awarded. If there is no recovery in this case, you will not be required to pay any attorneys’ fees or costs to Class Counsel, and if there is a recovery of money for the class in this case, you will NOT be asked to pay Class Counsel directly his fees and “out-of-pocket” costs. However, as mentioned in the answer to question 17, if you choose to hire your own lawyer, you will personally have to pay your own lawyer.
THE PROCESS OF DETERMINING WHO IS RIGHT
As long as the case is not resolved by a settlement or otherwise, Class Counsel will have to prove the Plaintiffs’ claims. No trial date has been set as this case is in the early stage of discovery where the parties are exchanging information about the facts and circumstances of the case. There is no guarantee that the Plaintiffs will win or that they will get any money for the Class. The United States Court of Federal Claims will decide whether the VA has violated the law, and if so, the Court will decide how much money is owed by the VA to each one of the eligible employees who file an “opt-in claim form” indicating that he or she wants to be included in the lawsuit. Senior Judge Loren A. Smith of the United States Court of Federal Claims is overseeing this class action case. The lawsuit is known as Athey v. United States, No. 99-2051C. Please do not call or write the Court or the Clerk of Court for information.
You do not need to attend the trial. Class Counsel will present the case for Plaintiffs, and the VA will present its defenses. You, or your own lawyer, are welcome to come at your own expense.
If Plaintiffs obtain any money as a result of the trial or a settlement, you will be notified of the amount of your award if you are eligible to receive a payment. The independent Class Administrator will send you a check. We do not know how long this will take.
GETTING MORE INFORMATION
The pleadings and other records in this lawsuit may be examined at any time during regular business hours at the Office of the Clerk of the United States Court of Federal Claims. The Court’s address is:
United States Court of Federal Claims
717 Madison Pl., N.W.
Washington, D.C. 20005
THE COURT HAS INSTRUCTED THAT YOU SHOULD NOT CONTACT THE CLERK’S OFFICE BY TELEPHONE OR BY MAIL FOR INFORMATION ABOUT THIS CASE.
For more information about this lawsuit, you may contact the Administrator at (877) 264-9581, or by mail at:
Lump-Sum Class Administrator
P.O. Box 2730
Portland, OR 97208-2730
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