WIGTON et al v. ARCHULETA
Filing
157
OPINION. Signed by Judge Mark R. Hornak on 8/29/14. (jad)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SYLVIA WIGTON, AUDREY L.
GORGONZOLA, GAIL G. HUDSON,
GATHRYN DAANE, DOLORES
VASSALLUZZO, MARY JANE
THOMAS and THOMAS C. MARCIN, on
behalf of themselves and other individuals
similarly situated,
Plaintiffs,
V.
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Civil Action No. 2:10-cv-01768
Judge Mark R. Hornak
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ELAINE KAPLAN, Director of the United
States Office of Personnel Management,
Defendant.
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OPINION
Mark R. Hornak, United States District Judge
Plaintiffs, a group of registered nurses ("RNs") formerly employed by the Department of
Veterans Affairs ("VA"), brought this action seeking declaratory and injunctive relief against the
Defendant, the United States Office of Personnel Management ("OPM"), in connection with a
recalculation of their retirement annuities they allege, and OPM concedes, that OPM is obligated
to perform under the retroactive application of the Veterans Affairs Health Care Programs
Enhancement Act ("Enhancement Act"), Pub. L. No. 107-135, Title I, ยง 132, 115 Stat. 2454
(2002).
Pending before the Court are two Motions- OPM's Motion to Dismiss Plaintiffs' First
Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(l), and Plaintiffs' Motion for Class
Certification under Fed. R. Civ. P. 23.
The Court has carefully considered Plaintiffs' First
Amended Complaint, ECF No. 81; Defendant's Motion to Dismiss, ECF No. 142, and Brief in
Support, ECF No. 144; Plaintiffs' Brief in Opposition, ECF No. 151; and Defendant's Reply
Brief, ECF No. 155; as well as Plaintiffs' Motion for Class Certification, ECF No. 133, and Brief
in Support, ECF No. 131; Defendant's Brief in Opposition, ECF No. 143; and Plaintiffs' Reply
Brief, ECF No. 152; and Plaintiffs' Memorandum on Justiciability, ECF No. 141; Defendant's
Response, ECF No. 150; and Plaintiffs' Reply Brief, ECF No. 156.
The facts and background of this case will not be restated here, as they were extensively
related by the Court in its Opinion on the Defendant's previous Rule 12(b)(1) Motion to Dismiss.
See Wigton v. Berry, 949 F.Supp.2d 616 (W.D. Pa. 2013). There, the Court held that it had
subject matter jurisdiction only as to the relief sought in the Plaintiffs' claim that OPM failed to
notify individuals arguably entitled to, but otherwise unaware of their eligibility for, a
recalculation oftheir annuities. !d. at 631-37. The Court set out in detail the reasons why it was
without jurisdiction as to any issue going to the merits of any claim for substantive relief. !d. at
624-32.
The Court also observed in its Opinion that because it only had jurisdiction over the
narrow issue of whether OPM was obligated to notify annuitants potentially eligible for
recalculation, and OPM apparently now concedes that it must identify and notify such annuitants
(and, seemingly, their successors in interest), and claims it was attempting to do so before the
Court granted Plaintiffs' Motion under Fed. R. Civ. P. 23(d)(l) to preclude OPM from such
action', this case may present a threshold question of justiciability. !d. at 640-41. The parties
subsequently briefed the Court on that issue, both in their papers concerning OPM's Motion to
Dismiss and in separate memoranda devoted to the question of justiciability. The Court will
examine the justiciability question first to determine whether it may proceed further.
1
The Court granted Plaintiffs' motion to preclude OPM from having direct contact with named plaintiffs and
putative class members, ECF No. 75, and then fine-tuned its ruling in subsequent Orders, confining it to the subject
matter of this litigation, ECF No. 87, and authorizing OPM to recalculate annuities or other retirement benefits of
any individuals who were or could be putative class members and who contacted OPM requesting action unrelated
to this litigation that affected the amount of annuity, survivor annuity, or other retirement benefits, ECF No. 119.
Collectively, the Court refers to those Orders as its "Rule 23(d)(1) Orders."
2
I.
Motion to Dismiss
OPM makes two primary justiciability-based arguments for dismissal. First, it contends
that the named Plaintiffs no longer have standing to maintain their action.
The issue of
constitutional standing is invoked where
[T]he plaintiff's ability to fall within the class definition not only depends upon
whether the plaintiff sustained the same injury as the class, but also upon whether
the plaintiff sustained any injury at all. .. To have constitutional standing, "[a]
plaintiff must always have suffered 'a distinct and palpable injury to himself' that
is likely to be redressed if the requested relief is granted." Gladstone Realtors v.
Vill. ofBelwood, 441 U.S. 91, 100 (1979) (quoting Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26,41 n.22 (1976)). "It is the fact, clearly established, of injury to
the complainant- not to others- which justifies judicial intervention." McCabe
v. Atchison, Topeka, & Santa Fe Ry. Co., 235 U.S. 151, 162 (1914). "[l]fnone of
the named plaintiffs purporting to represent a class establishes the requisite of a
case or controversy with the defendants, none may seek relief on behalf of himself
of any other member of the class." 0 'Shea v. Littleton, 414 US. 488, 494 (1974).
Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 360-61 (3d Cir. 2013). Plaintiffs must prove three
elements to show constitutional standing:
First, the plaintiff must have suffered an "injury in fact"- an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) "actual or
imminent, not 'conjectural or hypothetical."' Second, there must be a causal
connection between the injury and the conduct complained of- the injury has to
be "fairly ... trace[able] to the challenged action of the defendant, and not... th[ e]
result [of] the independent action of some third party not before the court." Third,
it must be "likely," as opposed to merely "speculative," that the injury will be
"redressed by a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations omitted). "While
the proof required to establish standing increases as the suit proceeds ... the standing inquiry
remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome
when the suit was filed." Davis v. Fed. Election Comm 'n, 554 U.S. 724, 734 (2008) (internal
citations omitted).
OPM contends that the named Plaintiffs lack standing because their only remaining claim
is for notice of their right to recalculated annuities, and they have necessarily had notice of that
3
right since before they initiated their suit. However, notice obtained from common knowledge or
third parties does not relieve the government of its due process notice obligations. See Jones v.
Flowers, 547 U.S. 220, 232-33 (2006); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799
(1983 ). It is a proper inference that the named Plaintiffs at least believed they might be entitled
to a recalculation to file suit for such relief, but at that time, OPM had not provided them with
adequate and complete notice of their rights under the Enhancement Act and the Lippman
decision. Accordingly, when they sued, they had an actual alleged injury to their right to notice.
As pled, that injury was directly caused by OPM's failure to identify them and send them notice
of their eligibility for a recalculation.
Finally, at the time Plaintiffs sued, although OPM had conceded that the Lippman
decision was universally binding and its application was required by law, OPM was only
recalculating the benefits of qualifying RNs who affirmatively requested such recalculation, and
was neither identifying eligible RNs nor notifying them of their ability to seek a recalculation.
See Wigton, 949 F .Supp.2d at 619-20? Because the Court has jurisdiction to order OPM to give
notice to the named Plaintiffs and the proposed class, their injuries at the time of suit are
redressable by court-ordered injunctive relief.
OPM further argues that prudential standing considerations advise against the Court's
exercise of jurisdiction over the case, because it now stands at the ready to provide notice to the
named Plaintiffs and the members ofthe putative class if the Court lifts its Rule 23(d)(l) Orders.
OPM has also filed a Notice with the Court describing how it would do so. 3 See ECF No. 140.
2
A process which the Court described as OPM's own version of"double secret probation." Wigton, 949 F.Supp.2d
at 632 n.19.
3
In its Notice to the Court, OPM details the actions it represents it would take in identifying and providing notice to
recalculation-eligible annuitants. These include posting a notice on the official OPM website, displaying the notice
on OPM's official social media sites, contacting organizations that serve retired federal employees about publicizing
the notice, submitting a request to publish the notice in the Federal Register, sending the notice to the VA for
4
Prudential standing encompasses "at least three broad principles: 'the general prohibition
on a litigant's raising another person's legal rights, the rule barring adjudication of generalized
grievances more appropriately addressed in the representative branches, and the requirement that
a plaintiff's complaint fall within the zone of interests protected by the law invoked."' Lexmark
Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1386 (2014) (internal citation
omitted). However, with regard to one party asserting the claims of another, "the prohibition on
third party standing ... 'is not invariable and our jurisprudence recognizes third-party standing
under certain circumstances."' In re Majestic Star Casino, LLC, 716 F.3d 736, 748 (3d Cir.
2013) (quoting Pa. Psychiatric Soc'y v. Green Spring Health Servs. Inc., 280 F.3d 278,288 (3d
Cir. 2002)). "The principles animating ... prudential [standing] concerns are not subverted if the
third party is hindered from asserting its own rights and shares an identity of interests with the
plaintiff." Id at 748-49.
As the Court recognized in its prior Opinion, "[t]hese circumstances appear to be met
under the facts of this case: claims brought by a group of individuals who have suffered injury
(failure to receive annuities), and share an identity of interests (retroactive recalculation of
annuities under the Enhancement Act), with those who have an inherent obstacle from pursuing
their own claims." Wigton, 949 F.Supp.2d at 641 n.33. OPM has offered nothing to alter the
Court's conclusion. It argues that because it agrees that it owes the named Plaintiffs and the
proposed class notice and is ready to independently provide it, the parties lack sufficient
adversity.
That is far from accurate - as borne out by the record, the parties still strongly
disagree on the form and plan for dissemination of notice and whether OPM should be allowed
to provide it only on its own terms. Further, the Supreme Court has recently reaffirmed that "a
posting, and sending letters to active annuitants identified as eligible by the Central Personnel Data File and the
electronic Annuity Roll. ECF No. 140, at~~ 5-9. That document also describes the proposed contents of the notice,
and how OPM and Retirement Services would go about the process of recalculating and paying annuities to putative
class members. !d. at~ I 0.
5
federal court's 'obligation' to hear and decide" cases within its jurisdiction "is 'virtually
unflagging."' Sprint Commc'ns, Inc. v. Jacobs, 134 S.Ct. 584, 591 (2013) (quoting Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). Accordingly, the
Court concludes that the named Plaintiffs have standing to seek the relief available to them from
this Court on behalf of themselves and the proposed class.
OPM also argues that the case is non-justiciable on mootness grounds. A case becomes
moot "when the issues presented are no longer 'live' or the parties lack a legally cognizable
interest in the outcome."
U.S Parole Comm 'n v. Geraghty, 445 U.S. 388, 396 (1980).
According to OPM, if not for the Court's Rule 23(d)(1) Orders, it would have given complete
relief (on the only issue as to which this Court has jurisdiction) over two years ago to all putative
class members in its form of notice, extinguishing any remaining adversity between the parties
and removing any personal stake the named Plaintiffs or putative class members could have in
this case in this Court. Id. at 22. OPM insists that this course of action would have prejudiced
no one and would be in the best interests of potential class members. Id. at 34.
Plaintiffs disagree. They contend that the fact that OPM had then or now has offered to
send some notice to some putative class members does not moot this case, because voluntary
cessation of challenged conduct does not deprive a federal court of jurisdiction to determine the
legality of that conduct, unless there is no reasonable expectation that the alleged violation will
recur. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000).
The party asserting mootness due to voluntary compliance bears the "formidable burden of
showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be
expected to recur." Id. at 190. Plaintiffs aver that OPM has not met that burden by simply
promising to provide adequate notice on its own, given OPM's purported "history of resistance
6
to paying benefits" and "clandestine and unexplained efforts post-litigation to reverse its prior
policies" during this litigation. ECF No. 151 at 9.
Indeed, throughout Plaintiffs' papers are warnings that in this litigation, OPM has a "long
and troubled history of intransigence, resistance, and willful refusal to identify, notify or pay
[c]lass members even after conceding their entitlement." ECF No. 156 at 13. In this regard,
Plaintiffs liken OPM's conduct to that of Butch Cassidy and the Sundance Kid - "OPM does
only what it has to do- and no more- to stay one step ahead of the posse," and contend that if
the Court lifts its Rule 23( d)(l) Orders, OPM may default on its promise to provide notice or
botch the job. !d. at 14. They specifically point to the Declaration of Kenneth J. Zawodny, Jr.,
of OPM ("Zawodny Declaration"), filed in support of OPM's Notice. See ECF No. 140 at 2-7.
Mr. Zawodny declares that OPM will carry out the notice processes it commits to only if "there
are no unexpected changes to Retirements Services' operating budget or current staffing levels."
!d. at 3.
While the Court does not necessarily buy into Plaintiffs' cinematically enhanced
worries, it cannot help but note that OPM's post-Lippman silence prior to the filing of this case,
coupled with its hedging of its bets in the Zawodny Declaration, indicates that Plaintiffs' silver
screen metaphors are not entirely fanciful. Further, the Third Circuit has held that courts should
give extra scrutiny to voluntary changes made after litigation has commenced, as is the case here.
Burns v. Pa. Dep 't of Correction, 544 F.3d 279, 284 (3d Cir. 2008) (citing DeJohn v. Temple
Univ., 537 F.3d 301,306-07 (3d Cir. 2008)).
On that basis, it is plain that OPM has not met its heavy burden to demonstrate the lack of
a reasonable expectation that it could return to its alleged "old ways." OPM began recalculating
named Plaintiffs' annuities, and directly sending them notice of its actions, only after this
litigation began. A logical inference could be drawn from the timing of the change in OPM's
behavior that its actions were caused by the initiation of the litigation itself. Additionally, OPM
7
cannot point to anything other than its post-litigation offer to provide its flavor of notice as proof
that the events alleged by Plaintiffs would not recur in the future. The Court therefore concludes
that the case continues to present a live controversy. 4 Accordingly, the Court will deny OPM's
Motion to Dismiss and proceed to Plaintiffs' Motion for Class Certification.
II.
Motion for Class Certification
Plaintiffs seek to certify a class of RNs who: (1) worked part-time (less than 40 hours per
week) for the VA before April 7, 1986; (2) who retired between April 7, 1986 and January 23,
2002; (3) whose annuities were calculated using a pro-rated, "High-3" 5 formula; (4) who have
not requested OPM to recalculate their annuities; (5) whom OPM has not identified as eligible
for recalculation and/or notified of the right to a recalculated annuity; and (6) whose annuities
have not been recalculated in accordance with the Enhancement Act and OPM policy and
practice since March 2009. ECF No. 130 at 5. They argue that this putative class, as defined,
meets Fed. R. Civ. P. 23(a)'s requirements of numerosity, commonality, typicality, and adequacy
of representation, and that their suit falls within the type of permissible class action described by
Fed. R. Civ. P. 23(b)(2), because OPM has acted or refused to act on grounds that apply
generally to the class (in allegedly failing to provide notice to the class of their eligibility for
4
OPM also made a truncated ripeness argument in its response to Plaintiffs' memorandum on justiciability. ECF
No. 150 at 7-11. Nowhere in its papers supporting its Motion to Dismiss is that argument even hinted at.
Consequently, the issue is waived. See Warren G. v. Cumberland Cty. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999).
Further, the Court believes it is readily apparent from its discussion of other justiciability doctrines in this Opinion
that the case is ripe, as it continues to present a substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the issuance of a judgment. See Lewis v. Alexander, 685
F.3d 325,341 (3d Cir. 2012), cert. denied, 133 S.Ct. 933 (2013).
5
According to Plaintiffs, the "High-3" formula calculates VA employees' annuities based on the average annual
earnings from an employee's three highest paid years. ECF No. 130 at I 0. In 1980, Congress changed the formula
to pro-rate VA annuities based on the percentage of part-time work performed over an employee's career. !d. at I OIl. The gist of Plaintiffs' action is that they are entitled to non-pro-rated, "High-3" formulated annuities in
conformity with the Enhancement Act, which Congress passed in 2002 to return the system to its pre-1980 method
of giving full-time credit for part-time work. !d. at II.
8
recalculation), so that final injunctive relief (in the form of notice to the class) is appropriate for
the class as a whole.
The central tenet of OPM's objection to certification is that while a large majority of the
putative class likely is unaware of their potential eligibility for recalculation (and thus are in need
of exactly the notice the Plaintiffs seek), the named Plaintiffs and potentially some class
members are fully aware of such eligibility. According to OPM, this factual distinction raises
issues fatal to the requirements of commonality, typicality, and adequacy of representation.
Additionally, OPM argues that since it has offered to identify and notify (in its own way)
annuitants eligible for a recalculation, this case is not of the type contemplated by Rule 23(b )(2).
In determining whether to certify a proposed class, the Court must conduct a "rigorous
analysis" into whether the class meets all of the relevant Rule 23 prerequisites. In re Hydgrogen
Peroxide Antitrust Litig., 552 F.3d 305, 309 (3d Cir. 2008) (quoting Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 161 (1982)).
"A class certification decision requires a thorough
examination of the factual and legal allegations," Newton v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 259 F .3d 154, 166 (3d Cir. 2001 ), and "the court's rigorous analysis may include a
'preliminary inquiry into the merits"' as necessary. In re Hydrogen Peroxide, 552 F.3d at 31718 (quoting Newton, 259 F .3d at 166)).
A. Rule 23(a)
1. Numerosity
"There is no minimum number of members needed for a suit to proceed as a class
action," but "generally if the named plaintiff demonstrates that the potential number of plaintiffs
exceeds 40, the first prong of Rule 23(a) has been met." Marcus v. BMW of N. Am., LLC, 687
F.3d 583, 595 (3d Cir. 2012) (internal citations omitted). Plaintiffs aver that the class would
9
include a large proportion of the approximately 21,000 VA nurses 6 who allegedly retired in the
time frame covered by the factual allegations, and would thus likely "encompass thousands of
retired nurses." ECF No. 130 at 20. OPM does not contest that. The Court therefore concludes
that the numerosity requirement of Rule 23(a) would be met.
2. Commonality
The commonality requirement is satisfied "if the named plaintiffs share at least one
common question of fact or law with the grievances of the prospective class." Rodriguez v. Nat'l
City Bank, 726 F.3d 372, 380 (3d Cir. 2013). Plaintiffs must demonstrate that the claims of the
proposed class members "depend upon a common contention" that is "capable of classwide
resolution."
Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011).
In order for a
"contention" to constitute a "common question," it must yield the same answer with respect to
each member of the proposed class. !d. "[E]ven a single common question will do." !d. at
2556.
The parties agree that the central and only remaining issue in this case is whether the
class is entitled to notification of their eligibility for recalculation of their annuities. Plaintiffs
contend that OPM engaged in a uniform course of conduct violative of federal law in failing to
identify nurses eligible for a recalculation and notify them of such eligibility. That is a factual
and legal claim common to the entire class which the Court concludes would meet the
commonality requirement.
3. Typicality
"The concepts of typicality and commonality are closely related and often tend to
merge." Marcus, 687 F.3d at 598 (citing Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994)).
6
Plaintiffs reached that figure by taking the number of employees OPM has stated retired from the VA within the
time period of the class allegations (approximately 74,000) and multiplying it by 29 percent, the portion it claims
that nurses comprise ofthe employees of an average hospital. ECF No. 130 at 20.
10
"Both serve as guideposts for determining whether under the particular circumstances
maintenance of a class action is economical and whether the named plaintiffs claim and the
class claims are so interrelated that the interests of the class members will be fairly and
adequately protected in their absence."
!d. (citing Falcon, 457 U.S. 147, 157 (1982)).
"Typicality, however, derives its independent legal significance from its ability to screen out
class actions in which the legal or factual position of the representatives is markedly different
from that of other members of the class even though common issues of law or fact are present."
!d. at 598 (internal citations omitted). To determine whether a named plaintiff is markedly
different from the class as a whole, courts engage in a comparative analysis that addresses three
distinct but related concerns:
(1) The claims of the class representative must be generally the same as those of
the class in terms of both (a) the legal theory advanced and (b) the factual
circumstances underlying that theory; (2) the class representative must not be
subject to a defense that is both inapplicable to many members of the class and
likely to become a major focus of the litigation; and (3) the interests and
incentives of the representative must be sufficiently aligned with those of the
class.
In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 597 (3d Cir. 2009).
OPM argues that because the named Plaintiffs are already aware of their eligibility, and
some have already received a recalculation, they are not entitled to notice and therefore do not
share the requisite factual nexus with the class members who are unaware of their eligibility. The
problem with OPM's argument is that it caused that issue by recalculating some of the named
Plaintiffs' annuities, and directly notifying them of that, only after the Plaintiffs commenced
their lawsuit against OPM and filed their initial Motion for Class Certification. 7 The Court then
7
Plaintiffs filed their complaint on December 30, 2010. First Amended Complaint ("AC"), ECF No. 81, at 2. On
April 28, 2011, OPM sent letters directly to the named Plaintiffs, informing them that OPM was recalculating their
pensions and adjusting their monthly benefits. AC ~ 62. On May 9, 2011, Plaintiffs initially moved for class
certification. ECF No. 15. On May 10, 2011, OPM delivered checks to Plaintiffs' counsel for past due benefits.
11
entered its Rule 23( d)(l) Orders, prohibiting OPM from affirmatively providing notice or
recalculations to named Plaintiffs or any putative class members.
The Third Circuit has held that when the claim of a proposed class plaintiff is resolved
while a class certification motion is pending, that plaintiff is not automatically disqualified from
being a class representative as long as he retains a personal stake in the outcome of the litigation.
Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir. 1987) (citing Geraghty, 445 U.S. 388 (1980)).
8
Additionally, where a concern is present that a defendant has unilaterally resolved named
plaintiffs' claims in an attempt to "pick off' suitable class representatives and thwart a class
action, a motion for class certification relates back to the filing of the class complaint. Weiss v.
AC , 64. OPM never contacted named Plaintiffs Mary Jane Thomas and Thomas C. Marcin, who were added when
the AC was filed. !d., 67.
8
The Supreme Court touched on the Geraghty rule in Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (20 13).
There, the Court held, over Justice Kagan's vigorous dissent, see Symczyk, 133 S.Ct. at 1532-37 (Kagan, J.,
dissenting), that the claim of the named plaintiff in a collective action filed under the Fair Labor Standards Act
("FLSA") was mooted by an unaccepted offer of judgment under Fed. R. Civ. P. 68. !d. at 1529. This case is
distinguishable from Symczyk on several levels.
First, the Court unequivocally held in Symczyk that its Rule 23 jurisprudence was inapposite to the FLSA analysis
because "Rule 23 actions are fundamentally different from collective actions under the FLSA." !d. For the Court,
the crucial material difference between an FLSA collective action and a Rule 23 class action was that "a putative
class acquires an independent legal status once it is certified under Rule 23. Under the FLSA, by contrast,
'conditional certification' does not produce a class with an independent legal status, or join additional parties to the
action. The sole consequence of conditional certification is the sending of court-approved written notice to
employees ... who in tum become parties to a collective action only by filing written consent with the court." !d. at
1530. Although the Court here is only preliminarily and conditionally certifying a Rule 23 class for the limited
purpose of providing notice, which is the only remedy this Court has the authority to grant in this case, it is a Rule
23 class nonetheless, certified after a rigorous analysis of the applicable Rule 23 factors that FLSA collective action
classes simply are not required to meet.
Second, at the time the Symczyk plaintiffs claim became moot, she had not moved for certification of her collective
action, and the district court had not anticipatorily ruled on the subject. !d. at 1530. Accordingly, there was "simply
no certification decision to which respondent's claim could have related back." !d. Here, the named Plaintiffs
moved for class certification before OPM accorded the full relief as to all Plaintiffs that the Plaintiffs sought in their
Amended Complaint. More importantly, it is plain that under current Third Circuit precedent, where there is not an
undue delay in moving for class certification, the motion for such certification relates back to the filing of the class
complaint. Weiss, 385 F. 3d at 348; see Weitzner v. Sanofi Pastuer, Inc., 2014 WL 956997, at *5-6 (M.D. Pa. Mar.
12, 2014), amended, 2014 WL 1786500 (M.D. Pa. May 5, 2014). The Weitzner court also recited the cavalcade of
cases which have held that the Symczyk holding was limited to FLSA collective actions, taking the Supreme Court's
statements of the non-relation to Rule 23 class claims at their word. See Weitzner, 2014 WL 956997 at *7. This
Court concludes that for purposes of Weiss, there was not undue delay here when the motion for class certification
was filed, and that the rule in Weiss remains the applicable rule of decision in these regards.
12
Regal Collections, 385 F.3d 337, 342-48 (3d Cir. 2004) (citing Deposit Guar. Nat'l Bank v.
Roper, 445 U.S. 326 (1980)).
Here, named Plaintiffs' claims were not rendered moot by
"purposive action of the defendants," which made their claims "inherently transitory." !d. at 349
(citing Geraghty, 445 U.S. at 399; Zeidman v. J Ray McDermott & Co., 651 F.2d 1030, 1049-50
(5th Cir. 1981); Lusardi v. Xerox Corp., 975 F.2d 964, 983 (3d Cir. 1992)). 9 The Court thus
considers the named Plaintiffs' claims as stated at the time of the First Amended Complaint,
before they had received notice from OPM. From that perspective, the named Plaintiffs share
the same factual circumstances as the proposed class. Additionally, they retain a personal stake
in the litigation - receiving adequate notice of their annuity rights under the Enhancement Act,
which they plainly still contest that OPM has not given to them or the proposed class.
OPM also argues that the named Plaintiffs are subject to the defenses of mootness and
failure to exhaust administrative remedies, because they avoided seeking a recalculation for the
9
Symczyk also addressed the Supreme Court's "inherently transitory" rationale. The Symczyk Court remarked that
the "inherently transitory" doctrine "has invariably focused on the fleeting nature of the challenged conduct giving
rise to the claim, not on the defendant's litigation strategy." The plaintiff there requested statutory damages; here the
Court has held that it only has power to award injunctive relief in the form of robust notice to the class. See
Symczyk, 133 S.Ct. at 1531. On that topic, the Court wrote, "[u]nlike claims for injunctive relief challenging
ongoing conduct, a claim for damages cannot evade review; it remains live until it is settled, judicially resolved, or
barred by a statute of limitations." !d. In this case, the Plaintiffs seek class certification precisely because OPM's
professed desire to independently provide the proposed class with OPM's own form of notice- an about-face from
its pre-litigation stance where it ignored the named Plaintiffs' requests for a recalculation - renders the proposed
class' claims as to the permissible injunctive relief, if left unprotected by the Court's Rule 23(d)(l) Orders, so
fleeting that the Court could not rule on their motion for class certification before individual interests, so defined,
would expire. The Symczyk Court, of course, recognized the vitality of the "inherently transitory" relation back
principle, 133 S. Ct. 1528, n.2, in the Rule 23 setting, and OPM's position to date gives the Court scant confidence
that OPM's past or future actions did or would conclusively afford the named Plaintiffs or the proposed class
members the same complete relief that this Court could by Order.
The Symczyk Court concluded that its holding in Roper "turned on a specific factual finding that the plaintiffs
possessed a continuing personal economic stake in the litigation, even after the defendants' offer of judgment," and
was "tethered to the unique significance of certification decisions in class-action proceedings." !d. That unique
significance is directly in play here, and the Court has concluded that the named Plaintiffs, although they have
received their economic relief (over which this Court has no jurisdiction), still maintain a personal stake in receiving
the relief that this Court may grant - full and adequate notice of all of their rights under the Enhancement Act.
Separately, that is also enough, pursuant to our Court of Appeals' interpretation of Geraghty and Roper in Weiss,
385 F.3d at 342-48, for the named Plaintiffs' claims to remain live. See Chafin v. Chafin, 133 S.Ct. I 017, I 023
(20 13) ("As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is
not moot.") (internal citations omitted).
13
sole purpose of extending this case. However, the Court has already explained why OPM's
mootness argument fails, and ruled in its prior Opinion that Plaintiffs' claims for notice were not
covered by the CSRA's remedial scheme. Wigton, 949 F.Supp.2d at 636-37. Therefore, the
Court concludes that the named Plaintiffs would possess the requisite typicality to represent the
proposed class.
4. Adequacy
The final Rule 23(a) requirement is that the named Plaintiffs must be able to "fairly and
adequately protect the interests ofthe class." Fed. R. Civ. P. 23(a)(4). The adequacy inquiry has
two components: first, it "tests the qualifications of the counsel to represent the class"; second, it
seeks to "uncover conflicts of interest between named parties and the class they seek to
represent." In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 532 (3d Cir. 2004). OPM
contends that there is a conflict of interest between the named Plaintiffs and the purported class,
because OPM has sought to give the entire class notice 10 which would resolve the remaining
claims, but counsel for the named Plaintiffs have refused to accept, pressing instead for a class
action suit to preserve their entitlement to a large award of attorney's fees.
While lucrative attorney's fee arrangements are a potential motivator for any class action
lawsuit, see Roper, 445 U.S. at 338-39, the named Plaintiffs have articulated a wholly legitimate
reason for class certification in this case by justifiably contesting the adequacy and inclusiveness
of OPM's proposed plan for providing notice. Their substantive complaints with OPM's Notice
include that it does not anticipate notifying estates of deceased annuitants or designated
beneficiaries, does not provide for direct notice to pre-1972 employees or contemplate follow-up
10
This is not as true as OPM argues. As set out in this Opinion, supra n.3 and below, OPM's version of notice
focuses on a bunch of website postings and notice to active annuitants only. Plaintiffs point out that this process
reveals no effort to identify other likely class participants and to then provide them with specific notice. See ECF
No. 140. On top of that is OPM's position that it would only do what it contemplates if it elects to allocate enough
money and employees to that effort. That definition of "notice" does not inspire confidence in the Court that the
lone act of lifting the Rule 23(d)( I) Orders would do the trick.
14
letters, does not address how OPM will process follow-up requests for information from notified
eligible annuitants, and does not include a sample of the actual notice OPM plans to circulate.
The Court finds these complaints do hold water, as OPM's Notice indeed fails to
contemplate such important and fairly obvious contingencies. Combined with the other concerns
already identified by the Plaintiffs as to OPM's independent scheme for providing notice to the
putative class, a reasonable explanation exists for why the named Plaintiffs persist in moving for
class certification- to foreclose a reasonably foreseeable situation in which OPM, left to its own
devices, fails to provide adequate and complete notice, sending this matter right back to where it
is currently situated. This Court does not believe that it is legally sufficient in the context of all
that has unfolded, and the defining legal rules, to conclude that simply allowing the geologic
processes of time and pressure emanating from OPM-controlled notice is the appropriate manner
in which to resolve this case.
As the Court noted in its previous Opinion, it has considered lifting its Rule 23(d)(l)
Orders and allowing "the parties to wait and see whether the injury Plaintiffs fear (OPM
neglecting its avowed duty to recalculate or notify) then actually materializes." Wigton, 949
F.Supp.2d at 641. However, the record has since been supplemented with OPM's proposed plan
for notice, which Plaintiff accurately points out contains equivocations from OPM as to whether
and when it would disseminate its proposed version of notice at all. The Court concludes that
simply lifting its Rule 23( d)(l) Orders and handing the reins to OPM would not be the prudent
course of action. Plaintiffs' insistence on class certification does not betray a conflict of interest,
but instead demonstrates a reasoned and proper judgment on how best to protect the rights of
their clients and the proposed class. OPM's argument as to adequacy is therefore without merit,
and the Court concludes that requirement would also be met in this case.
15
B. Rule 23(b )(2)
Rule 23(b)(2) provides that "[a] class action may be maintained if Rule 23(a) is satisfied
and if. .. the party opposing the class has acted or refused to act on grounds that apply generally
to the class, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). OPM again argues that it has changed
its policy and would begin providing notice to the putative class members were the Court to lift
its Rule 23( d)(l) Orders, so it no longer refuses to act on grounds applicable to the proposed
class.
However, as the Court has already noted, Plaintiffs' contention is that, prior to its postlitigation change of tune, OPM acted for several years on grounds broadly applicable to the
putative class members in failing to identify them as eligible for a recalculation and notify them
of their eligibility. Additionally, in the aftermath of the Court's prior Opinion, the only relief
Plaintiffs may seek here is injunctive in nature - an order from the Court directing OPM to
identify annuitants who are eligible for recalculation and to notify them of such. Therefore, the
proposed class also meets the requirements for a Rule 23(b)(2) certification.
Because the proposed class meets all of the relevant Rule 23 criteria, the Court will
preliminarily and conditionally certify the class for the limited purpose (and the only matter over
11
The Court will
which this Court has jurisdiction) of providing notice to the class members.
direct the parties to submit a proposed form of class notification and a proposed order setting
forth in detail the steps they will take to identify class members and send them (or their
successors in interest) notice. The Court notes that Plaintiffs and OPM have already created a
roadmap for what that proposed order should look like in OPM's suggested notice plan, and in
11
Preliminary or conditional certification of a class for the purpose of providing notice is routinely granted, subject
to a final certification decision at the time of a fairness hearing. See, e.g., In re Nat 'I Football League Players'
Concussion Injury Litig., 2014 WL 3054250, at *7 (E.D. Pa. July 7, 2014).
16
Plaintiffs' objections to OPM's proposed form of notice, contained in their brief in opposition to
OPM's Motion to Dismiss, see ECF No. 151 at 19. The Court anticipates that the proposed
Order will address those contingencies in the notification steps OPM originally identified in its
Notice to the Court, ECF No. 140.
III.
Conclusion
For the foregoing reasons, Defendant OPM's Motion to Dismiss is denied, and Plaintiffs'
Motion for Class Certification is granted to the extent that the Court will preliminarily and
conditionally certify the proposed class, as defined in Plaintiffs' Motion for Class Certification,
ECF No. 133, for the limited purpose of providing notice to the class of this lawsuit and class
members' eligibility for a recalculation of their annuities in accordance with the provisions of the
Enhancement Act.
An appropriate Order will follow.
United States District Judge
Dated: August 29, 2014
cc:
All counsel of record
17
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