United States District Court, W.D. Pennsylvania
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, 
KATHLEEN McGETTIGAN, Acting Director of the United States Office of Personnel Management,  Defendant.
R. HORNAK, UNITED STATES DISTRICT JUDGE
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
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 (and what 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,  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 Plaintiffs Motion to
Substitute; and grant in part and deny in part Plaintiffs
Motion for Summary Judgment.
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.
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 in
short 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 /,
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.
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,
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 Amended Complaint 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 /, 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.
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.
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, Plaintiffs Motion to Modify the
earlier Rule 23(d) Order, ECF No. 205, Plaintiffs filed
Suggestion of Death, ECF No. 240, and Plaintiffs Motion to
Substitute Party, ECF No. 244.
Motions for Summary Judgment
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:
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.
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.
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
the Equal Protection claim. The Plaintiffs Motion will be
granted as to that claim. The balance of that Motion and
OPM's Motion will be denied without prejudice.
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)).
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 elements of their case for which they
have the burden of proof." Id. (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
"If, after adequate time for discovery, the nonmoving
party has not met its burden ... the court must enter summary
judgment against the nonmoving party." Willis,
808 F.3d at 643.
as is the case here, the court considers dueling motions for
summary judgment, inferences drawn from the underlying facts
"must be viewed in the light most favorable to the party
opposing the motion." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587(1986).
says that it is entitled to judgment as a matter of law on
the Plaintiffs' due process claim because Plaintiffs
cannot demonstrate a property interest being deprived without
due process and, in the event that they could, they are not
entitled to any notice of their right to a consideration of
recalculation in any form. ECF No. 193. Plaintiffs respond
primarily by asserting that OPM should be judicially estopped
from now proclaiming that it does not, in fact, have a legal
obligation to give notice to the retired, aging nurses and to
recalculate their annuities. ECF No. 247, at 21. The Court
concludes that OPM is not entitled to summary judgment on the
Due Process claim and at the very least there remains a
genuine issue of material fact that precludes such an Order.
first step in any due process inquiry is to determine whether
there has been a deprivation of life, liberty, or property.
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59
(1999); Dungan v. Slater, 252 F.3d 670, 676 (3d Cir.
2001). OPM argues that Plaintiffs cannot demonstrate such a
property interest without requiring the Court to exceed its
concededly limited jurisdiction. ECF No. 193, at 15. That is
because, according to OPM, the only "surviving claims
pertain to 'potential, not actual, eligibility for an
increased annuity." Id. at 16. And forcing a
determination of individual eligibility exceeds the
Court's jurisdiction in the case, the argument goes,
because it would require the Court to order OPM to do the
recalculation (something the Court cannot do) to determine
whether a particular individual is eligible. Id.
interests ... are created and their dimensions are defined by
existing rules or understandings that stem from an
independent source such as state law-rules or understandings
that secure certain benefits and that support claims of
entitlement to those benefits." Bd. of Regents of
State Colls, v. Roth, 408 U.S. 564, 577 (1972). OPM
insists that the independent sources here are the Civil
Service Retirement Act ("CSRA") and 38 U.S.C.
§ 7426. ECF No. 193, at 16. And under those authorities,
OPM says, Plaintiffs must demonstrate their entitlement to
immediate payment. Id. at 17. Therefore, OPM says it
would need to review each Plaintiffs Civil Service Retirement
file and then recalculate their annuity. It would also need
to determine whether they are entitled to more money under
Section 132. Id. at 18. And because this Court
cannot order such a recalculation, OPM maintains that the
Plaintiffs don't have a property interest, at least not
one that can be vindicated here. Id.
problem with that argument is that it rests on an assumption
that OPM buries in a footnote: "while OPM has decided to
apply Section 132 to individuals who retired before January
23, 2002, it has not taken the position, and does not agree,
that Lippman required it to do so."
Id. at 18 n.11.
it is simply incorrect to say that OPM has not taken the
position that it is compelled to apply Section 132 to the
individuals at issue. It has done just that plenty of times.
See, e.g., ECF No. 61, at 20 ("OPM does not
dispute that, assuming the putative class members are
determined to have the required part-time nurse service
during the relevant time period, they are entitled to
additional annuity and should be paid."); ECF No. 54, at
7 n.5 (arguing against the Rule 23(d) Order because it
"would interfere with OPM's statutory obligations
regarding annuity computations"); ECF No. 144, at 14
(describing "what [OPM] had accepted as its obligation:
to pay the absent class members what they were owed");
ECF No. 150, at 7-8 ("there is ... no dispute between
the parties that the Enhancement Act is retroactive, that OPM
is applying it as such, and stands at the ready to notify the
putative class members that they may be entitled to
additional annuity benefits under the Act."). See
Wigton /, 949 F.Supp.2d at 625, n.10. These are not
statements of this Court. They are those of an agency of the
United States Government, in and to a federal court. This
federal court. The Court will take OPM at its
while OPM may now be attempting to walk back its earlier
position on whether Section 132 as a matter of law requires
increased annuities, there is no question that there existed
an understanding that OPM would apply Section 132 to
these nurses. That understanding stemmed from
OPM's own post-Lippman understanding of Section
132 as the source of a legal obligation. In the Court's
view, that is sufficient to create a property interest.
See Roth, 408 U.S. at 577.
Section 132 itself supports the conclusion that Plaintiffs
are likely entitled to immediate payment of increased
annuities, so this Court can't (and won't) dismiss
OPM's stated post-Lippman position as some sort
of administrative lark or governmental misstep. "In
computing the annuity under the applicable provision of law
specified in that subsection of an individual [who retired
before April 7, 1986 and worked part-time], the service . . .
shall be credited as full-time service." 38 U.S.C.
§ 7426. To the Court, that appears to be as clear a
congressional directive as that body can give. While it is
true that under the CSRA, there is no vested right in an
annuity "until the particular event happens upon which
the money or part of it is to be paid, " Rafferty v.
United States, 210 F.2d 934, 936 (3d Cir. 1954), surely
the identification of constitutionally-protected property
interests does not turn on the inconsistent litigation
positions of federal agencies as to their statutory mandates.
This Court believes that the record amply demonstrates that
OPM has persistently acknowledged that Section 132 facially
applies retroactively to cover the Plaintiffs here.
even though this Court may not have jurisdiction to order
annuity recalculations, that fact does not alter the reality
that Plaintiffs have a property interest. The property
interest is predicated on independent sources of law, not on
the scope of this Court's power to order a direct remedy.
See Roth, 408 U.S. at 577.
the Court concludes that Plaintiffs have demonstrated the
existence of a property interest sufficient to maintain their
Due Process claim, and to bar summary judgment in OPM's
the Court concludes that Plaintiffs have made out a claim
that they been deprived of a protected interest (based on
what OPM has repeatedly said are its legal obligations), it
will now examine what process is due.
position is that Plaintiffs are not entitled to
identification or notice by or from OPM, but if they just ask
OPM, then OPM will recalculate their benefits. In support of
that position, OPM marshals several arguments, the first of
which is that publication of the Enhancement Act in the
United States Code is sufficient notice of that statute's
existence and effect. ECF No. 193, at 19. But that
doesn't square with what OPM now claims the Enhancement
Act says more directly. Further, OPM now seems to say that it
was not even clear to OPM that Section 132 of the
Enhancement Act mandated that Plaintiffs are entitled to
increased annuities (and it apparently took the
Lippman adjudication to convince them). If the
Enhancement Act's mandate was an oblique concept even to
the sophisticated officials at OPM, then surely that statute
can't possibly be said to have, as a matter of law,
provided adequate notice to the individual retired VA nurses
that they are entitled to an increased annuity.
argument, and OPM's next one, are premised on its
self-styled "decision" to recalculate annuities
being classified as a legislative act. But that also is
not so. OPM may try to dress this up as a policy decision,
but the fact is that but for the Lippman
adjudication, it would not be applying Section 132 to
Plaintiffs and would not be recalculating or paying increased
annuities. That the effects reach a potentially large number
of people is of no moment. This is not an "across the
board" legislative judgment, see United States v.
Fla. E. Coast Rwy. Co., 410 U.S. 224, 244-46 (1973),
rather it is the direct result of the Lippman
adjudication. There was no legislative policy decision here.
Interpreting and applying adjudicative decisions to discrete
individuals is a traditionally judicial (not legislative)
function. Further, because OPM has decided to recalculate
annuities for some retired VA nurses and not others (based on
who is lucky enough to have known to ask OPM), the action can
fairly be conceptualized as the adjudication of individual
eligibility that implicates individualized notice. See
Mathews v. Eldridge, 424 U.S. 319 (1976); Goldberg
v. Kelly, 397 U.S. 254 (1970); Schroeder v.
Hegstrom, 590 F.Supp. 121, 128 (D. Or. 1984).
also challenges the individualized nature of the notice
Plaintiffs seek. ECF No. 193, at 24. It argues that
publication of OPM's Lippman plan in the Federal
Register is legally sufficient in and of itself, and that OPM
is willing to so publish a notice of that decision upon
lifting of the Rule 23(d) Order. Id. Again, that
argument is premised on OPM's action being a "formal
legislative rulemaking" which it is not. The
Lippman adjudication was just that-an adjudication.
And OPM's applying it to Plaintiffs here was born of that
adjudication, not the issuance of a legislative rule.
whether OPM can identify and give notice to Plaintiffs
without actually recalculating their annuities is a genuine
issue of material fact that precludes summary judgment. OPM
says that this is the state of affairs. ECF No. 104, at 3;
ECF No. 54-3, at 7-8 ¶¶ 22-23. Plaintiffs, however,
dispute this fact and seek discovery on it. ECF No. 214, at
8. The Court concludes there is, at the very least, a genuine
dispute on what is a material fact. Importantly in
Plaintiffs' favor is that there is plenty in the record
to support the proposition that OPM may be able to identify
most (if not all or almost all) eligible individuals without
actually first recalculating their annuities. See
ECF No. 193, at 13 (describing the review process undertaken
before entry of the Rule 23(d) Order: "as part of its
normal administrative operations, [OPM] undertook a review of
the Civil Service retirement files for those individuals to
determine whether they were eligible for a
recalculation'") (emphasis added).
bottom line is that OPM's contentions in these regards
are fundamentally and directly contrary to its own repeatedly
stated positions, and as noted above, they also run counter
to settled decisional law and the record here. At this
summary judgment stage, the Court cannot conclude as a matter
of law that Plaintiffs are not entitled to notice
that falls within this Court's jurisdiction. OPM's
Motion to Summary Judgment will therefore be denied as to the
Due Process claim because Plaintiffs have demonstrated the
existence of a covered property interest and they are not