Wigton v. Kaplan

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. ELAINE KAPLAN, Director of the UnitedStates Office of Personnel Management, Defendant.

Civil Action No. 2:10-cv-01768

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

August 29, 2014

Judge Mark R. Hornak

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, § 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)(1), 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 ReplyBrief, 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 of their annuities. Id. 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. Id. 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)(1) to preclude OPM from such action¹, this case may present a threshold question of justiciability. Id. 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.

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). "[I]f none 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." O'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 thatright 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 619-20.² 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 of the putative class if the Court lifts its Rule 23(d)(1) Orders. OPM has also filed a Notice with the Court describing how it would do so.³ See ECF No. 140.

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." Wat 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 "afederal 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...