A group of registered nurses formerly employed by the Department of Veterans Affairs sued the United States Office of Personnel Management (“OPM”) in a putative class action seeking declaratory and injunctive relief in connection with a recalculation of their retirement annuities that OPM was obligated to perform under the retroactive application of the Veterans Affairs Health Care Programs Enhancement Act (the “Enhancement Act”).  Plaintiffs promptly moved to certify a Rule 23(b)(2) class.  Thereafter, OPM sent notice to the Plaintiffs regarding a recalculation of their retirement annuities as required under the Enhancement Act.

In opposition to Plaintiffs’ motion to certify, OPM argued that Plaintiffs’ could not satisfy the requirements of Rule 23(a).  In particular, OPM argued that Plaintiffs’ claims were not typical of the putative class because they were already aware of their eligibility for recalculation and some had already received a recalculation.  As a result, Plaintiffs were not entitled to notice did not share the requisite factual nexus with the class members who are unaware of their eligibility.

The district court disagreed.  Relying on Third Circuit precedent, the court observed 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 she retains a personal stake in the outcome of the litigation.  The court further noted that when a concern is present that a defendant has attempted to “pick off” a named plaintiff’s claim and thwart a class action by unilaterally resolving the plaintiff’s claim, a pending motion for class certification relates back to the filing of the class complaint.  Accordingly, the district court therefore reviewed Plaintiffs’ motion for certification before they had received the unilateral notices from OPM and held that the typicality requirement was established.  The district court ultimately certified the Rule 23(b)(2) class “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.”

Sylvia Wigton, et al. v. Elaine Kaplan, 2:10-cv-01768 (W.D. Penn. August 29, 2014).