Gorgonzola v. McGettigan

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,¹ v. KATHLEEN McGETTIGAN, Acting Director of theUnited States Office of Personnel Management,² Defendant.

Civil Action No. 2:10-cv-01768

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

April 21, 2017

Judge Mark R. Hornak

OPINION

Mark R. Hornak, United States District Judge

The Plaintiffs in this case are a group of retired registered nurses ("RNs") who for at least a portion of their careers worked part-time at the United States Department of Veterans Affairs ("VA"). The Defendant is the Director of the Office of Personnel Management ("OPM"), who is now Kathleen McGettigan (Acting). The dispute centers on whether and how OPM will notify these nurses of the increased annuity payments to which they are legally entitled.

Motions practice around this dispute has been ongoing for years. Now pending before the Court is another series of motions, responses, replies, and surreplies from both parties. In its Motion for Summary Judgment, OPM takes another swing at avoiding what Plaintiffs say (andwhat OPM has previously admitted) is OPM's legal obligation to pay the nurses larger annuities. In their Motions to Allow Time for Discovery and to Amend Class Certification, Plaintiffs seek to stave off judgment against them, and in their own Motion for Summary Judgment and Motion to Modify Rule 23(d) Order, Plaintiffs seek to expedite the relief they seek (but not without also protecting their counsel fees). Plaintiffs have also moved to substitute parties because some of the original Plaintiffs have died. OPM opposes that Motion. The briefing is extensive. See ECF Nos. 193; 198; 206; 208; 210; 214; 216; 219; 220; 221; 224; 225; 231; 236; 248; 254; 255; 265; 266; 271; 273. After consideration of all papers and after oral argument,³ for the reasons stated below the Court will deny OPM's Motion for Summary Judgment; grant in part Plaintiffs' Motion to Allow Time for Discovery; grant the Plaintiffs' Motion to Amend Class Certification to the extent of confirming that a class was already certified; grant the Plaintiffs' Motion to Amend Rule 23(d) Order to the extent that the Court's order will be lifted to allow OPM to contact annuitants and beneficiaries and to recalculate and pay any increased annuities and imposing certain conditions; grant Plaintiff's Motion to Substitute; and grant in part and deny in part Plaintiff's Motion for Summary Judgment.

I. BACKGROUND

The facts of this case have been set out extensively in the Court's two previous Opinions. See Wigton v. Berry, 949 F. Supp. 2d 616 (W.D. Pa. 2013) ("Wigton I"); Wigton v. Kaplan, No. 10-1768, 2014 WL 4272791 (W.D. Pa. Aug. 29, 2014) ("Wigton II"). Therefore, only a recap of the most salient points will be recited here.

The Congress passed the Department of Veterans Affairs Health Care Programs Enhancement Act of 2001 ("Enhancement Act"), Pub. L. No. 107-135, 115 Stat. 2446, which inshort provided for all part-time work done by VA RNs prior to April 7, 1986 to be credited as full-time work, effectively increasing those nurses' annuities. Wigton I, 949 F. Supp. 2d at 619. OPM first took the position that the Enhancement Act was not retroactive, and therefore applied it only to nurses who retired after the bill's passage on January 23, 2002. Id. But after an adjudicatory proceeding before the Merit Systems Protection Board ("MSPB"), Administrative Judge Michael Rudisill decided that Congress intended the Enhancement Act to apply retroactively, so any nurse who retired after April 7, 1986, and who fit the other criteria, was entitled to a recalculated annuity. Id. Thereafter, OPM came to the conclusion that it would apply the Enhancement Act retroactively (the so-called "Lippman concession"). Id. at 620.

But upon OPM's realization, exemplified in that decision, that the nurses were indeed legally entitled to recalculation of their annuities, OPM seems to have had second thoughts because it decided not to tell anyone that the Enhancement Act would be applied retroactively. This meant that OPM only recalculated annuities for those nurses who somehow knew that and then happened to ask OPM to recalculate. Id. This was despite OPM's conclusion that it is statutorily required to recalculate the annuities. See id. at 120 n.3 (cataloguing OPM's repeated statements that the nurses are entitled to recalculated annuities under Enhancement Act, e.g. "OPM does not dispute that an individual is entitled to a recalculation of his/her annuity in accordance with § 132 of Pub. L. No. 107-135," ECF No. 104, at 2). This Court previously referred to OPM's "we'll do it if you ask" approach as OPM's own version of "double secret probation." Wigton I, 949 F. Supp. 2d at 632, n.19.

Plaintiffs filed this lawsuit seeking to harmonize OPM's stated position and its actions (or more properly, inactions) on behalf of all eligible nurses. OPM has vigorously opposed each of the Plaintiffs' claims at every turn. First, it moved to dismiss Plaintiffs' First AmendedComplaint on the ground that the Civil Service Reform Act provided the exclusive avenue for adjudicatory review and precluded the Plaintiffs' claims in this Court. See ECF No. 93. This Court, in Wigton I, held that it had jurisdiction over the relief Plaintiffs seek to the extent that that relief is "notification of individuals who are arguably entitled to, but otherwise unaware of, their eligibility for a post-Lippman recalculation in light of OPM's self-stated statutory obligation to recalculate." Wigton I, 949 F. Supp. 2d at 641-42. At that point, consideration of the merits of the claims, class certification, and standing issues remained. Id.

After still more motions and more briefing, this Court issued its next Opinion, denying yet another OPM Motion to Dismiss and granting Plaintiffs' Motion for Class Certification "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." Wigton II, 2014 WL 4272791 at *9. That brings us to where we are now: OPM for the third time asks this Court to toss the case, despite its repeated concession to this Court that the law requires what the Plaintiffs seek. The Plaintiffs in turn ask this Court to declare them the winners here and now.

II. DISCUSSION

The parties have filed a bevy of motions and the Court will dispose of each in turn. First up is OPM's Motion for Summary Judgment, ECF No. 192. Next at bat is Plaintiffs' Motion for Summary Judgment, ECF No, 247. Third in line is Plaintiffs' Motion to Allow Time for Discovery Under Rule 56(d), ECF No. 213. Fourth at the plate is Plaintiffs' Motion to Amend Class Certification Order, ECF No. 209. Finally, the Court will address a few remaining issues including class notice, Plaintiff's Motion to Modify the earlier Rule 23(d) Order, ECF No. 205,Plaintiff's filed Suggestion of Death, ECF No. 240, and Plaintiff's Motion to Substitute Party, ECF No. 244.

A. The Motions for Summary Judgment

OPM filed a Motion for Summary Judgment arguing that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law on Plaintiffs' Due Process and Equal Protection claims. See ECF No. 192. In support of that Motion, OPM submitted a Concise Statement of Material Fact[s] Not in Dispute, ECF No. 194, which contained precisely one (1) such proposed fact:

To determine whether an individual is eligible for an additional annuity payment pursuant to the Office of Personnel Management's ("OPM") decision to apply Section 132 of the Department of Veterans Affairs Health Care Programs Enhancement Act of 2001 ("Enhancement Act"), Pub. L. No. 107-135, 115 Stat. 2466 [sic], to individuals who retired before January 23, 2002, OPM would need to undertake a review of the individual's Civil Service Retirement file and perform a recalculation. See dkt. No. 54-3 (Foelster Declaration) ¶¶ 22, 27.

The Plaintiffs filed a dueling Motion for Summary Judgment that relies heavily on OPM's prior statements of its own position. They argue that OPM cannot now reverse field, and that they are the ones who are entitled to judgment in their favor as a matter of law. ECF No. 247. The Plaintiffs say that OPM should be judicially estopped from disavowing its earlier statements that recognized a legal obligation to identify and notice class members. They say that OPM's differential treatment of class members (paying some of the nurses, but not others, all equally situated) facially violates Equal Protection principles. Id.

For the reasons set out below, the Court concludes that the Plaintiffs are entitled to judgment as a matter of law and that there are no material facts that remain in dispute as to theEqual Protection claim. The Plaintiff's Motion will be granted as to that claim. The balance of that Motion and OPM's Motion will be denied without prejudice.

i. Legal Standard

Rule 56 provides that a party is entitled to summary judgment if it can show that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A genuine issue of material fact is one that 'affects the outcome of the suit under the governing law' and could lead a reasonable jury to return a verdict in favor of the nonmoving party." Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Initially, the moving party bears the burden of demonstrating that the evidentiary record presents no genuine issue of material fact. Willis, 808 F.3d at 643. If it does so, the burden shifts to the nonmoving party to "identify facts in the record that would enable them to make a sufficient showing on essential...