                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


PAMELA McKINNEY,

                      Plaintiff,

                      v.                           Civil Action No. 11-cv-631 (RLW)

UNITED STATES POSTAL SERVICE,

                      Defendant.

                                   MEMORANDUM OPINION

       This matter is once again before the Court on Plaintiff Pamela McKinney’s

(“McKinney”) Motion for Class Certification. (Dkt. No. 38). In a prior Memorandum Opinion,

the Court found that McKinney satisfied all of the factors under Federal Rule of Civil Procedure

23(a), as well as the “predominance” prong of Rule 23(b)(3). See McKinney v. U.S. Postal Serv.,

No. 11-cv-631 (RLW), 2013 WL 164283 (D.D.C. Jan. 16, 2013). At the parties’ request,

however, the Court deferred a ruling on the “superiority” element of Rule 23(b)(3)—whether a

class action would be superior to other methods of adjudication—to provide McKinney’s counsel

a chance to locate additional beneficiaries who might be included in the proposed class. See id.

at *10-11. Those efforts are now complete, and the parties submitted a joint status report on

May 8, 2013, outlining their respective proposals with respect to moving forward. (See Dkt. No.

49). The Court also held a hearing on May 21, 2013.

       Having considered the parties’ status report and the presentation of counsel during the

recent hearing, the Court is now convinced that McKinney’s proposed class—including the

previously “unfound” beneficiaries—satisfies all of the requirements for class certification,

including the “superiority” element of Rule 23(b)(3). Accordingly, for the reasons set forth


                                               1
herein and in the Court’s earlier Memorandum Opinion, Plaintiff’s Motion for Class

Certification is hereby GRANTED. 1


                     BACKGROUND AND PROCEDURAL HISTORY

       As noted, the Court already concluded that McKinney met the “predominance” element

of Rule 23(b)(3), which means that, at this juncture, the only open question is whether the class

action device is “superior” to other methods of adjudicating the claims McKinney pursues.

       On this point, the Postal Service previously challenged—and continues to challenge—

only one discrete component relevant to the issue of superiority. The Postal Service argues that

certain “manageability” problems render certification inappropriate, at least as to a particular

subset of previously “unfound” beneficiaries that McKinney seeks to represent. (See Dkt. No. 39

at 23-26). Because the Postal Service had been unable to locate these individuals using last-

known address information, despite repeated attempts to do so, the Postal Service originally

argued that including this group of approximately 1,100 “unfound” beneficiaries in any certified

class would render the case unmanageable. (See id.). McKinney insisted otherwise, but offered

a compromise solution—allowing her counsel the chance to locate a representative sample of

“unfound” beneficiaries before the Court decided whether the issue presented insurmountable

management problems under Rule 23(b)(3). (See Dkt. No. 41 at 18-19). Based on the results of

those efforts, McKinney offered, she would decide whether to seek inclusion of these “unfound”

beneficiaries in the proposed class she seeks to represent. (Id.). As the Postal Service had no

objection to this approach, the Court deemed it appropriate to proceed in this fashion.




1
        The Court presumes familiarity with the factual background and legal discussion set forth
in its earlier opinion, and only repeats those aspects of its prior analysis and the parties’
respective arguments that are necessary for purposes of the instant ruling.
                                                2
       Subsequently, on May 8, 2013, the parties submitted a status report summarizing the

results of these search efforts. As detailed therein, McKinney’s counsel located and successfully

contacted 14 beneficiaries who are still alive, and made contact with the heirs or personal

representatives of another 22 beneficiaries who are now deceased.              (See Dkt. No. 49).

Additionally, in another 9 instances, McKinney’s counsel “located the beneficiary or a close

family member, but ha[d] not yet successfully made contact with the person.”              (Id.).   In

summary, McKinney’s counsel indicated that, “out of a universe of 49 names, [putative] class

counsel have successfully located 45 beneficiaries or heirs of beneficiaries, of whom counsel

made contact with 36.” (Id.). 2 McKinney maintains that the Postal Service’s manageability

concerns are vitiated by these results and asks the Court to certify her proposed class at this time.

She also requests that the Postal Service identify and provide information surrounding the

remaining “unfound” beneficiaries, so that her counsel can pursue similar search efforts to locate

those individuals over the next six months. In addition, McKinney proposes that the parties

commence a discovery period of four months, after which time they can proceed with dispositive

motions on any substantive issues related to her proposed class claims.

       For its part, the Postal Service agrees that McKinney’s counsel should be allotted an

additional six-month period to locate the remaining “unfound” beneficiaries, and it agrees to

produce files for the remaining “unfound” individuals to whom a supplemental death benefit has

not yet been paid. Additionally, the Postal Service agrees that any class notice under Rule



2
        According to the status report, upon receiving the beneficiary information from the Postal
Service, McKinney’s counsel utilized the following search methods in an effort to locate
“unfound” beneficiaries: “(1) Westlaw’s People Map tool; (2) Lexis’s Comprehensive Person
Report tool; (3) WhitePages.com; (4) Google searches; (5) online records searches of and phone
calls to government agencies, including courthouses, county clerks, probate offices, recorders of
wills, and property assessors; and (6) phone calls and letters to beneficiaries and their relatives.”
(Dkt. No 49 at 2-3).
                                                 3
23(c)(2) should be deferred until the conclusion of this six-month search period, and the Postal

Service also agrees that the parties should commence discovery for a period of four months. But

the Postal Service disagrees that class certification is appropriate now. The Postal Service argues

that the Court should defer its certification ruling until the close of the additional six-month

search period because of further manageability concerns. The Postal Service contends that,

along with the difficulties in tracking down “unfound” beneficiaries in the first place, the Court

and the parties will face substantial management challenges where the original beneficiary is

now deceased, because confirming the rightful recipient of any payment would entail a number

of logistical challenges, including the application of various state and local laws. In the Postal

Service’s view, “Plaintiff must identify the putative class members, i.e. the proper life insurance

beneficiary under federal [law] and/or the proper estate beneficiaries under state law before the

close of the opt-out period.” (Dkt. No. 49 at 15-16).

        McKinney’s counsel rejoins that, while these concerns may require attention at some

stage in this litigation, these issues are largely irrelevant to the question of whether this case

should be certified as a class action in the first place.

        Following the hearing on May 21, 2013, the Court took the matter under advisement.


                     ANALYSIS AND APPLICATION OF RULE 23(b)(3)

        Along with the four prerequisites for class certification under Federal Rule of Civil

Procedure 23(a), McKinney “must also show that [her] claims fit within one of the subsections of

Rule 23(b).” Love v. Johanns, 439 F.3d 723, 727 (D.C. Cir. 2006) (citing Amchem Prods., Inc.

v. Windsor, 521 U.S. 591, 613-16 (1997)). McKinney seeks to certify her proposed class

pursuant to Rule 23(b)(3), which permits a case to be maintained as a class action where “the

court finds that questions of law or fact common to class members predominate over questions


                                                    4
affecting only individual members, and that a class action is superior to other methods for fairly

and efficiently adjudicating the controversy.”         FED. R. CIV. P. 23(b)(3).   In reaching this

determination under Rule 23(b)(3), the Court is to consider, among other matters:

       (A) the class members’ interests in individually controlling the prosecution or
       defense of separate actions; (B) the extent and nature of any litigation concerning
       the controversy already begun by or against class members; (C) the desirability or
       undesirability of concentrating the litigation of the claims in the particular forum;
       and (D) the likely difficulties in managing a class action.

Id. Since the Court already ruled that McKinney’s claims satisfied the predominance prong of

Rule 23(b)(3), at this point, only the “superiority” question remains. And while there is no

“bright-line rule” on how to interpret Rule 23(b)(3), this Court has previously noted that “the

proper standard is a ‘pragmatic’ one.” Hardy v. District of Columbia, 283 F.R.D. 20, 26-27

(D.D.C. 2012) (quoting 7AA CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE,

FEDERAL PRACTICE     AND   PROCEDURE § 1778, at 121 (3d ed. 2005) (hereinafter “WRIGHT &

MILLER”), and 5 JAMES WM. MOORE          ET AL.,   MOORE’S FEDERAL PRACTICE ¶ 23.45 (3d ed.

2007)). Moreover, as the Advisory Committee Notes explain, Rule 23(b)(3) “encompasses those

cases in which a class action would achieve economies of time, effort, and expense, and promote

uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or

bringing about other undesirable results.”     Id. (quoting FED. R. CIV. P. 23(b)(3) advisory

committee’s note).

       Applying this framework, particularly in the “pragmatic” sense it was intended to

operate, the Court is convinced that McKinney has made the requisite showing under Rule

23(b)(3) and that the class action device is superior to other methods of resolution. “Class

actions are the superior method when they serve the purpose of efficient resolution of the claims

or liabilities of many individuals in a single action, as well as the elimination of repetitious

litigation and possibly inconsistent adjudications.” Alliota v. Gruenberg, 237 F.R.D. 4, 13
                                                   5
(D.D.C. 2006); Barnes v. District of Columbia, 242 F.R.D. 113, 123-24 (D.D.C. 2007) (“The

second prong of Rule 23(b)(3) militates in favor of class actions where common legal or factual

questions allow a court to consolidate otherwise identical actions into a single efficient unit.”)

(internal citation and quotation omitted). In this case, the claims of all of the proposed class

members, including those of the so-called “unfound” beneficiaries, all turn on the same legal

issue: whether the Postal Service is obligated to pay interest on additional death benefit

payments. Resolving this uniform legal issue through a single, cohesive proceeding is far

superior to requiring the potential class members to initiate a multiplicity of individual actions.

Moreover, given the relatively small size of each individual class member’s potential recovery, 3

it is unlikely that many putative plaintiffs could or would sue to recover those amounts

individually, given the comparatively high costs of litigation. See Amchem Prods., 521 U.S. at

617 (“The policy at the very core of the class action mechanism is to overcome the problem that

small recoveries do not provide the incentive for any individual to bring a solo action

prosecuting his or her rights.”).

       In challenging McKinney’s ability to satisfy Rule 23(b)(3), the Postal Service advances

only one argument. It contends that the difficulties in locating “unfound” beneficiaries, and in

confirming the appropriate heir or personal representative of those class-member beneficiaries

who are now deceased, present manageability concerns that render class treatment inappropriate.

To be sure, manageability is one aspect of the Court’s calculus under Rule 23(b)(3). But case

management difficulties cannot be viewed in isolation, as the Postal Service effectively urges

here. See NEWBERG ON CLASS ACTIONS § 4:32, at 277 (4th ed. 2002) (“[M]anageability is only

one of the elements that goes into the balance to determine the superiority of a class action in a

3
       By way of example, McKinney seeks to recover unpaid interest on a principal amount of
approximately $4,000.00.
                                                6
particular case.   Other factors must also be considered, as must the purposes of Rule 23,

including: conserving time, effort, and expense; providing a forum for small claimants; and

deterring illegal activities.”). While some of the logistical factors highlighted by the Postal

Service may require particular attention in this case moving forward, these management

considerations do not, in this Court’s view, render class adjudication inferior to thousands of

individual actions or some other method of resolution. Furthermore, considering McKinney’s

counsel’s success in tracking down a sizeable percentage of the prior sample of “unfound”

beneficiaries, the Postal Service’s concerns may be largely overstated. 4

       Relatedly, the Postal Service misses the mark in suggesting that McKinney must

definitively confirm and identify all of the putative class members “before the close of the opt-

out period.” (Dkt. No. 49 at 15-16). Upon certifying a class, the Court need only ensure that

appropriate notice is provided to class members in accordance with Rule 23(c)(2). As the

Supreme Court has explained, “[t]o alert class members to their right to ‘opt out’ of a (b)(3)

4
        Although not proposed by either party, the Court independently considered whether the
use of subclasses might be appropriate to resolve the added complications surrounding deceased
beneficiary class members—i.e., such that the Court would certify one subclass comprised of
beneficiaries who are still living, and another subclass comprised of the estates or legal
representatives of deceased class-member beneficiaries. See FED. R. CIV. P. 23(c)(5). But there
are no divergent liability issues with respect to these two potential categories of class members,
and the same alleged harm underpins all of their claims (i.e., the Postal Service’s failure to pay
interest on death benefit payments); as such, the use of subclasses appears unnecessary, and the
Court is confident that any logistical concerns can be managed within a single class of
beneficiaries. But cf. DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013) (remanding
certification ruling to district court to determine whether the implementation of proposed
subclasses, each encompassing class members who experienced a different type of alleged harm
under the Individuals with Disabilities Education Act, might remedy commonality problems
under Rule 23(a)). Moreover, the Postal Service has not argued (and the Court does not find)
that McKinney is an inadequate representative of the deceased-beneficiary subset of the
proposed class she seeks to certify. Contra Twelve John Does v. District of Columbia, 117 F.3d
571, 575 (D.C. Cir. 1997) (observing that “the use of a subclass makes it possible to preserve the
class action form where the named representative cannot be found to adequately represent all the
interests in the class”). The Court therefore does not find the use of subclasses appropriate or
necessary in this case, particularly given that neither party urges such a result.
                                                 7
class, Rule 23 instructs the court to ‘direct to the members of the class the best notice practicable

under the circumstances, including individual notice to all members who can be identified

through reasonable effort.’”    Amchem Prods., 521 U.S. at 617 (citing FED. R. CIV. PROC.

23(c)(2)(B)) (emphasis added); see also Peters v. Nat’l R.R. Passenger Corp., 966 F.2d 1483,

1485-86 (D.C. Cir. 1992) (reiterating that Rule 23(c)(2) only requires “the best notice

practicable”). In essence, the Postal Service’s complaint here is that certain class members may

not receive individual notice under Rule 23(c), either because the beneficiary remains “unfound”

or because the original beneficiary is now deceased and the proper recipient of any award in his

or her stead might be unclear. But Rule 23(c) does not require individual notice be provided to

all class members; it only requires individual notice to those who can be identified through

reasonable effort. See NEWBERG ON CLASS ACTIONS § 4:35, at 309 (“When identification of class

members for notice purposes poses a complex problem from a manageability perspective, then

such members cannot be reasonably identified within the meaning of Rule 23(c)(2) and are not

entitled to individual notice.”). Cf. Bynum v. District of Columbia, 214 F.R.D. 27, 40 (D.D.C.

2007) (“[S]ending notices to the last known address for each . . . member of the class, and whose

current address cannot be identified through reasonable efforts (e.g., Internet searches), will

satisfy the ‘individual notice’ requirement of the Rule”). In sum, the remaining “manageability”

arguments invoked by the Postal Service are insufficient to defeat class certification.

       At the same time, the practical challenges the Postal Service highlights are not altogether

unimportant to the management of this litigation moving forward. To the contrary, the apparent

challenges in tracking down “unfound” beneficiaries—and in locating the estates or legal

representatives of “unfound” beneficiaries who are now deceased—undoubtedly merit reflection,

both by the Court and by counsel, to ensure that these proceedings achieve the purposes behind



                                                 8
Rule 23, while also protecting the rights of absent class members. For example, although Rule

23(c)(2) requires only the “best notice practicable,” and individual notice to members who can

be identified through “reasonable efforts,” these are pragmatic standards that can vary depending

on the specific contours of a particular case. In this case, for example, “reasonable efforts” to

provide notice to the estate or representative of an “unfound” beneficiary who is now deceased

will necessarily entail some additional steps than might be required for purposes of providing

notice to an “unfound” beneficiary who is still living.         The parties must judiciously and

comprehensively consider these issues. 5 Additionally, in the event that an exclusion or “opt out”

request is received from the estate of a deceased class member, it may be necessary to somehow

confirm that the individual submitting the request actually has the authority to act on the

deceased class member’s behalf. The parties may need to consider devising a method to address

these concerns. 6 And if McKinney ultimately prevails on the merits of her claims, it may be

appropriate to require class members to establish their entitlement to any award of damages

(such as through the submission of a claim form), particularly in the case of class members who

claim to be the heir or legal representative of the original beneficiary of the underlying death


5
        In the parties’ recent status report, there was some suggestion that McKinney believes
that beneficiaries who remain “unfound” following additional search efforts should be excluded
from the certified class, or at least that the Court could defer a definitive ruling on this question
until the end of the six-month search period. But, as the Postal Service rightly points out, such a
result would seem to deprive the Postal Service of the benefit of finality that class litigation
affords defendants. See, e.g., Gunnells v. Healthplan Servs., 348 F.3d 417, 427 (4th Cir. 2003)
(explaining that, among other objectives, class actions provide “defendants the benefit of finality
and repose”). The Court thus declines McKinney’s invitation to exclude, on a categorical basis,
beneficiaries who ultimately remain “unfound” from the certified class.
6
        For example, this could potentially be accomplished by requiring, as a component of the
“opt-out” request itself, an attestation from the signatory confirming that he or she is validly
acting on behalf of the estate of the designated beneficiary (or otherwise possesses the legal
authority to act on behalf of the deceased class member). See, e.g., Perry v. Beneficial Fin. Co.
of N.Y., 88 F.R.D. 221, 222-23 (W.D.N.Y. 1980) (approving exclusion request signed by the
administratrix of the class member’s estate).
                                                 9
benefit payment. This is by no means an exhaustive list of possible issues, but counsel are

encouraged to consider these practicalities and others as this case presses onward.

       Finally, on the issue of class notice, the Federal Rules do not prescribe a specific timeline

for the issuance of class notice under Rule 23(c)(2). It is generally recognized that such notice

should be provided “as soon as practicable after the court determines that the class action is

proper.” WRIGHT & MILLER § 1788, at 529-30; see also NEWBERG ON CLASS ACTIONS § 8:9, at

192 (“[I]f notice is to be effective—if class members are to have a meaningful opportunity to

request exclusion, appear in the action, object to the representation, etc.—the invitation must go

out as promptly as the circumstances will permit.”). And at a minimum, “[c]ertification under

Rule 23(b)(3) would require that the class members receive notice of the suit ‘well before the

merits of it are adjudicated.’” Cohen v. Office Depot, Inc., 204 F.3d 1069, 1078 (11th Cir. 2000)

(quoting Schwarzchild v. Tse, 69 F.3d 293, 295 (9th Cir. 1995)). However, “the court may

decide to postpone giving formal notice under Rule 23(c)(2) if there is a reason for the delay and

it would not prejudice those class members who are not before the court.” WRIGHT & MILLER §

1788, at 530. In this case, the Court believes it appropriate to defer the issuance of Rule 23(c)(2)

class notice pending the completion of the additional six-month search period agreed upon by the

parties. This added time will allow McKinney’s counsel to locate more accurate information for

many other previously “unfound” class members, which, in turn, will help to ensure that the

notice ultimately issued constitutes the “best notice practicable” under the Federal Rules. 7

Moreover, while the parties will be engaging in discovery efforts during this time period, they

have agreed in their status report to defer any briefing on the merits of McKinney’s claims until

7
       In the interim, and as set forth more fully in the accompanying order, the parties should
meet and confer with respect to the scope of McKinney’s counsel’s additional search efforts for
“unfound” beneficiaries, and they should attempt to reach consensus on the specific search
measures that they believe constitute “reasonable efforts” to track down “unfound” beneficiaries.
                                                10
after the expiration of the additional search period.   Therefore, this minimal delay should not

result in any prejudice to absent class members because the Court can still ensure that notice is

issued sufficiently in advance of any merits adjudication to preserve their ability to opt out, to

weigh intervention, or to otherwise involve themselves with this action as they may deem

appropriate.


                                        CONCLUSION

       For the reasons explained herein, the Court concludes that McKinney satisfies the

“superiority” prong of Rule 23(b)(3).      Therefore, having previously found the remaining

elements of Rule 23(a) and 23(b)(3) met, see McKinney, 2013 WL 164283, the Court GRANTS

McKinney’s Motion for Class Certification and certifies the following class:

       All beneficiaries of deceased United States Postal Service employees (or, if
       deceased, the beneficiaries’ estates or other legal representatives), who first
       received notice on or after March 28, 2008, that they may be entitled to an
       additional death benefit payment under provisions of the U.S. Postal Service
       Annuity Protection Program.

The Court also approves Plaintiff Pamela McKinney as Class Representative, and the Court

appoints David U. Fierst and Robert L. Bredhoff as class counsel pursuant to Rule 23(g).

       An appropriate Order accompanies this Memorandum Opinion.
                                                                 Digitally signed by Judge Robert
                                                                 L. Wilkins
                                                                 DN: cn=Judge Robert L. Wilkins,
                                                                 o=U.S. District Court,
                                                                 ou=Chambers of Honorable
                                                                 Robert L. Wilkins,
Date: May 31, 2013                                               email=RW@dc.uscourt.gov, c=US
                                                                 Date: 2013.05.31 12:21:56 -04'00'


                                                    ROBERT L. WILKINS
                                                    United States District Judge




                                               11
