National Treasury Employees Union, et al v. Archuleta

Filing 23

TRANSFER ORDER re: pldg. ( 1 in MDL No. 2664) Transferring 2 action(s) to Judge Amy Berman Jackson in the District of District of Columbia.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 10/9/2015. Associated Cases: MDL No. 2664, CAN/3:15-cv-03144, DC/1:15-cv-01015, KS/6:15-cv-01220 (dn)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: U.S. OFFICE OF PERSONNEL MANAGEMENT
DATA SECURITY BREACH LITIGATION

MDL No. 2664

TRANSFER ORDER

Before the Panel:* The federal government defendants1 in this litigation move under 28
U.S.C. § 1407 to centralize the litigation in the District of District of Columbia. The litigation
consists of the three actions, one in that district (American Federation of Government Employees
(AFGE)), one in the Northern District of California (National Treasury Employees Union (NTEU)),
and one in the District of Kansas (Woo), as listed on Schedule A.2
Defendant KeyPoint Government Solutions, Inc. (KeyPoint) supports centralization in the
District of District of Columbia. The AFGE and Woo plaintiffs also support centralization in District
of District of Columbia, as does the plaintiff in a potential tag-along action (Krippendorf) pending
in that district. Plaintiffs in potential tag-along actions pending in the District of Colorado
(McGarry) and the Central District of California (Hanagan) favor selection of the District of
Colorado as transferee district.3 Plaintiffs in a potential tag-along action (Oravis) pending in the
Eastern District of Virginia support selection of that district. The NTEU plaintiffs oppose
*

All Panel members appear to have interests that would usually disqualify them under
28 U.S.C. § 455 from participating in the decision of this matter. Accordingly, the Panel invoked
the Rule of Necessity, and all Panel members participated in the decision of this matter in order to
provide the forum created by the governing statute, 28 U.S.C. § 1407. See In re: Adelphia
Commc’ns Corp. Sec. & Derivative Litig. (No. II), 273 F. Supp. 2d 1353 (J.P.M.L. 2003); In re:
Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 170 F. Supp. 2d 1356, 1357-58
(J.P.M.L. 2001).
1

The federal government defendants are the U.S. Office of Personnel Management,
Beth F. Colbert, in her official capacity as OPM’s acting director, and Donna Seymour, in her official
capacity as OPM’s Chief Information Officer. Katherine Archuleta, OPM’s former director, was
sued in all three actions, but, under Fed. R. Civ. P. 25(d), Colbert has been substituted in Archuleta’s
place.
2

The Panel has been informed of eleven additional related federal actions. Those
actions and any other related federal actions are potential tag-along actions. See Panel Rules 1.1(h),
7.1, and 7.2.
3

The Woo plaintiff supports selection of the District of Colorado, in the alternative.

-2centralization, and request that their action be excluded from the MDL, if one is created.
On the basis of the papers filed and the hearing session held, we find that centralization under
Section 1407 in the District of District of Columbia will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of this litigation. These actions – two of which
are putative nationwide class actions – share factual issues concerning the recent cybersecurity
incidents involving the U.S. Office of Personnel Management (OPM) in which the personally
identifiable information of millions of federal government employees, contractors, and others was
compromised. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial
rulings on class certification and other issues, and conserve the resources of the parties, their counsel,
and the judiciary.
In opposing centralization and requesting that their action be excluded from the MDL, the
NTEU plaintiffs argue, inter alia, that their action differs from the other involved actions in that it
is not a class action, names only one defendant (the director of OPM), and involves only a unique
constitutional claim. We find these arguments unconvincing. The Panel routinely includes
individual and class actions in a single MDL. E.g., In re: Convergent Tel. Consumer Prot. Act
Litig., 981 F. Supp. 2d 1385, 1386 (J.P.M.L. 2013). Transfer under Section 1407 does not require
a complete identity of parties. See In re: Bank of N.Y. Mellon Foreign Exch. Transactions Litig.,
857 F. Supp. 2d 1371, 1373 (J.P.M.L. 2012). And the presence of a unique legal theory in a given
action is not significant where all actions arise from a common factual core. See In re: Auto Body
Shop Antitrust Litig., 37 F. Supp. 3d 1388, 1390 (J.P.M.L. 2014). Here, the substantial factual
overlap between NTEU and the other actions cannot be gainsaid.
We select the District of District of Columbia as the transferee district for this litigation. The
federal government defendants are located in that district, and KeyPoint has an office in nearby
Fairfax, Virginia. Relevant documents and witnesses thus likely will be found there. Selection of
the district is supported by not only the federal government and KeyPoint but also plaintiffs in two
of the three constituent actions, as well as a potential tag-along action.4 The Honorable Amy Berman
Jackson, to whom we assign this litigation, is an experienced jurist, and we are confident that she
will steer the proceedings on a prudent course.

4

We also note that the principal plaintiff in NTEU is headquartered in Washington,
D.C., and therefore will not be inconvenienced by litigating there.

-3IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
the District of District of Columbia are transferred to the District of District of Columbia, and, with
the consent of that court, assigned to the Honorable Amy Berman Jackson for coordinated or
consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

IN RE: U.S. OFFICE OF PERSONNEL MANAGEMENT
DATA SECURITY BREACH LITIGATION

MDL No. 2664

SCHEDULE A

Northern District of California
NATIONAL TREASURY EMPLOYEES UNION, ET AL. v. ARCHULETA,
C.A. No. 3:15-03144
District of District of Columbia
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, ET AL. v. UNITED
STATES OFFICE OF PERSONNEL MANAGEMENT, ET AL., C.A. No. 1:15-01015
District of Kansas
WOO v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
C.A. No. 6:15-01220