Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

Case 1:99-cv-02051-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ROBERT ATHEY, et al.,

Case No. 99-2051C

for themselves and on behalf of all others similarly situated, Plaintiffs, v. THE UNITED STATES OF AMERICA Defendant.

PLAINTIFFS' MOTION FOR LEAVE TO FILE PLAINTIFFS' THIRD AMENDED COMPLAINT ADDING ADDITIONAL PLAINTIFFS (Senior Judge Smith)

Pursuant to Rules 15 and 21 of the Rules of this Court ("RCFC"), plaintiffs hereby move for leave to file their Third Amended Complaint adding twenty-one (21) additional named plaintiffs in the above-captioned matter as potential Class Representatives. Plaintiffs seek leave of Court to file this Amended Complaint in lieu of the Second Amended Complaint that has been withdrawn pursuant to the hearing conducted by the Court on December 12, 2006. The additional named plaintiffs are as follows: Corenna M. Ambrose Beulah G. Arnold Joanne Bradley Barbara Jean Cain Alice H. Canavan Patricia M. Cassidy Sandra A. Cesnik Helen V. Ferson Rose Ellen Flint Sanora M. Gibson Christine M. (Palma) Grant Sue A. Heck Mildred Edith Johnson
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Marie Louise Laverdiere Mary Ann Mackin Deborah J. McKown Patricia M. Quinn Florence D. Rice Mary P. Rooney Susan C. Swimley Donna. L. Thompson

The addition of these named plaintiffs will bring the total number of named plaintiffs to twenty-nine (29) plaintiffs. All of the additional named plaintiffs were employed by the United States within the Department of Veterans Affairs. When they retired or separated, each additional plaintiff did not receive, as part of their lump-sum payment for unused annual leave, the annual pay increase that went into effect during the period of unused annual leave credited to their account, and/or premium pay for regularly scheduled night and/or weekend duty as a registered nurse or as a "hybrid" employee pursuant to title 38, U.S.C.. Each plaintiff's full name, address, last four digits of their social security number, place of employment, and position are identified in the list attached as Exhibit 1. If the Court so requests, plaintiffs can file under seal an un-redacted exhibit containing the full social security numbers pursuant to General Order No. 42A, Part VII, paragraph 26. Adding these persons to the list of named plaintiffs as additional potential Class Representatives is the only substantive change being proposed in this motion for leave to file Plaintiffs' Third Amended Complaint. The Third Amended Complaint also states with more specificity the allegations against the Department of Veterans Affairs that had been stayed in the Archuleta case. Moreover, the resolution of the Archuleta case has drawn the attention of many former professional employees of the VA, and these additional persons have expressed their

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intent to serve as potential Class Representatives in order to protect the interests of other class members. By order of the Court issued December 12, 2006, the Court noted that plaintiffs' previously filed Second Amended Complaint had been withdrawn. Defendant's Answer is not scheduled to be filed and served until February 1, 2007. For these reasons, pursuant to RCFC 15 and 21 that leave to amend a party's pleading "shall be freely given when justice so requires" and that parties may be added at any stage of the action "on such terms that are just", plaintiffs respectfully request that the Court grant this motion for leave to file Plaintiffs' Third amended Complaint to add the persons listed in Exhibit 1 as named plaintiffs in this case and to plead their case with more specificity.

Dated: December 19, 2006

Respectfully Submitted,

s/Ira M. Lechner Ira M. Lechner Counsel for Plaintiffs 19811-4th Place Escondido, CA 92029 (858) 864-2258 Fax (760) 839-5755
U P P

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