UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BOZENA SARNECKA-CROUCH, ) ) Plaintiff, ) ) v. ) Civil Action No. 06-1169 (ESH/JMF) ) JAMES BILLINGTON, ) LIBRARIAN OF CONGRESS, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

Pending before the court and ready for resolution is Plaintiff’s Notice of Motion and

Motion to Reopen and to Enforce the Stipulation of Settlement and Dismissal. [#50]. Having

already granted the motion to reopen the case, I will now address each of plaintiff’s requests for

relief seriatim.

1. Social Security Reporting and Contributions: The Library of Congress Must Provide a

Full Accounting

Plaintiff has moved for an order compelling defendant “to make all Social Security

reporting and contributions for the years 2006 through 2009 as required by the settlement” and,

to the extent that it cannot, “to compensate plaintiff in an amount equivalent to her expected

lifetime Social Security benefit increase resulting from the retroactive promotion and

constructive reinstatement” pursuant to the terms of the settlement agreement. [#50] at 1.

Pursuant to the settlement agreement, the Library of Congress (“the Library”) agreed to

promote plaintiff to GS-15, step ten retroactive to October 20, 2005, and to fund the requisite

payments so that plaintiff would receive her pension and her Social Security benefits adjusted to reflect that she is deemed employed at the GS-15 step ten level from October 20, 2005 through

her effective retirement on August 1, 2009. Stipulation of Settlement and Dismissal [#48] at 2.

Defendant allocated $150,000 to fund plaintiff’s increased benefits and the parties agreed that, if

the full amount was not required to fully fund plaintiff’s increased benefits, defendant would pay

plaintiff what remained within ninety days of the effective date of the settlement. Id. at 2-3.

The terms of the settlement state that the estimated cost of funding the increased benefits

was approximately $89,000, but included a provision that the amount was subject to change. Id.

On November 20, 2009, within the ninety day time frame contemplated by the settlement, the

Library informed plaintiff that the initial estimate was low and that the actual cost of funding her

increased benefits had been calculated as $99,550.26. [#50-3] at 2. On November 27, 2009,

plaintiff received a lump sum payment from the Library in the amount of $51,449.74. [#50] at 4-

5. On December 8, 2009, the Library informed plaintiff that the “final cost calculation [for the

increased benefits] was conservative (and the final cost amount was actually more than

$99,000).” [#50-24] at 1. The Library stated, however, that it would not reduce plaintiff’s

benefits because the Library had already authorized the payment of $51,449.74. Id.

On May 24, 2010, counsel for the Library informed counsel for plaintiff that the actual

cost for funding plaintiff’s increased benefits was $132,178.25. [#50-6] at 2. By that same

communication, counsel for the Library informed counsel for plaintiff that the Library had

already fully funded her increased benefits pursuant to the settlement.1 Id. Despite this

representation, and in contravention of the 2008 and 2009 W-2s the Library issued to plaintiff,

the Social Security Administration does not have any record of Social Security wages reported by

1 The Library communicated to plaintiff that it had paid the following amounts: $33,684.63 for 2006; $34,930.15 for 2007; $36,798.59 for 2008; and $26,764.88 for 2009 through her effective retirement date of August, 1. 2009. [#50-6] at 2. the Library for plaintiff for 2008, and the amount reported for 2009 is less than it should have

been under the settlement. [#50-4]; [#50-5]; [#50-14].

During a hearing held before this court on June 27, 2012, the Assistant United States

Attorney and a representative for the Library explained that the Library had fully funded

plaintiff’s increased Social Security benefits. Plaintiff’s Social Security file does not reflect this,

however.

The settlement agreement states in part that “[d]efendant shall also take all other steps

necessary on defendant’s part to enable plaintiff to retire from the federal service with plaintiff’s

length of service at the grade GS-15 step 10 level, measured from October 20, 2005 . . . .

[through] plaintiff’s retirement from the Library, effective August 1, 2009.” [#48] at 3-4. A plain

reading of the settlement contemplates that the Library would ensure that plaintiff would receive

the increased benefits bargained for, which definitely includes increased Social Security benefits.

There is obviously confusion as to the status of plaintiff’s Social Security benefits. The Library

will therefore be ordered to provide the court and plaintiff with a detailed accounting of the

payments made, pursuant to the settlement agreement, to fund plaintiff’s increased benefits,

including Social Security.2 The Library will also be ordered to make a complete accounting to

this court of the amounts paid pursuant to the settlement agreement and to take all measures

necessary to ensure that the Social Security Administration has the correct information with

2 In the Library’s opposition to the motion to reopen and enforce the settlement, the Library puts forth an argument that it never should have paid plaintiff’s Social Security contributions. See Defendant’s Response to Plaintiff’s Motion to Reopen and to Enforce the Stipulation of Settlement and Dismissal [#55] at 5-6. The Library argues that because the Office of Personnel Management (“OPM”) does not require that a settlement include Social Security contributions, it should not have made such payments in the first place. Id. at 6. However, the settlement is express in that it states that the Library would in fact fund plaintiff’s Social Security contributions, and this post hoc repudiation of the plain language of the settlement will be given no further attention. regards to the benefits paid on behalf of plaintiff, as memorialized in the May 24, 2010 letter. See

[#50-6]. In addition, the Court will order Michael Astrue, in his official capacity as

Commissioner of the Social Security Administration, to provide the Library of Congress with all

documents pertaining to plaintiff’s Social Security benefits account for the period 2005-2009.3

2. Plaintiff is Not Entitled to Any Payment from the Library Because of the Delay in the

Increase to Plaintiff’s FERS Benefits

One of the agreed upon increased benefits was the increase in plaintiff’s Federal

Employment Retirement System (“FERS”) benefits. See [#48] at 3. Plaintiff did not receive an

increase in her FERS benefits until October 2010, instead of after her effective retirement on

August 1, 2009. [#50-23]. Plaintiff now requests an order that the Library pay her $17,430 (plus

interest), the difference in her FERS benefits from August 2009 through October 2010. [#50] at

1-2.

Plaintiff was receiving annuity payments from FERS during the pendency of this case,

from October 2005 through August 2009. Plaintiff’s Response to Defendant’s Statement of

Issues of Fact as to Which There is a Genuine Dispute [#64-1] at 3. The settlement did not take

into consideration that plaintiff was receiving an annuity from OPM at a rate based on her 2005

retirement during the pendency of the lawsuit, from 2005 to 2009. The settlement agreement

deemed plaintiff retired as of 2009 and contemplated plaintiff receiving an annuity at a rate

consistent with plaintiff having been employed for the pendency of the lawsuit. OPM has now

determined that plaintiff cannot both receive a FERS annuity for the period of 2005 through 2009

and then an increased annuity rate in 2009. OPM cannot accept the theory that plaintiff was

3 See United States v. New York Tel. Co.,

(1977) (power granted by the All Writs Act, (

) may extend to non-parties who are in a position to frustrate implementation of court order). constructively employed and paying into the OPM retirement fund for the 2005-2009 time period

when, in fact, she was not. See

. OPM therefore informed plaintiff that it would deduct

from her annuity a certain amount until the annuities she had incorrectly received in 2005-2009

had been repaid.

Plaintiff not only wants to keep the annuities she received during the

pendency of the lawsuit but also seeks $17,500 from defendant, the amount that she alleges she

has been underpaid by OPM.

There are two scenarios under which plaintiff's OPM annuity can be understood.

1. Plaintiff can be been deemed retired in 2005, at which point her annuity would

have begun at a rate based on her retirement in 2005. That rate would have stayed the same even

after the settlement date. Plaintiff should not have received an increase in her annuity in October

2010 since she had in fact retired in 2005, although the settlement agreement deemed her to have

retired in 2009.

2. Plaintiff can be deemed retired in 2009, with the attendant increased annuity rate.

But, OPM insists that she cannot receive the increased rate without returning to it the annuity

payments she received in the period 2005 to 2009 merely because the agreement deems her to

have been employed in that period of time. Thus, OPM has stated that it is going to withhold a

portion of her annuity until the full amount of the annuity she received in 2005-2009 has been

repaid.4

Either way, plaintiff is not entitled to $17,340 from the Library. Indeed, her calculation

that she is owed $17,340 is based on what OPM would consider the misapprehension that she

could somehow be both retired and employed in the 2005-2009 period and is therefore entitled to

both keep all of her annuity payments for the period 2005 to 2009 and then get an increase in

4 Plaintiff is challenging the OPM determination. those payments as of her “deemed” retirement in 2009.

3. The Library’s Notice of Dunning Is Prohibited

On July 15, 2010, counsel for the Library sent counsel for plaintiff a letter indicating that,

because the Library had exceeded the amount agreed upon in the settlement by $33,627.99,

plaintiff would either have to refund that amount or agree to amend the settlement to permit

plaintiff to keep the overpayment but release the Library from any further claims, including the

claims she is making now. [#50-21] at 3. This is in direct contravention of the communication

from counsel for the Library on December 8, 2009, in which the Library expressly stated that

plaintiff’s benefits would not be decreased because of the miscalculation in the final cost for

funding her increased benefits. [#50-24]. Additionally, the settlement agreement clearly states

that the calculations for the cost of plaintiff’s increased benefits would be calculated and the

remainder, if any, would be paid to plaintiff within ninety days of the effective date of the

settlement. [#48] at 3. The agreement became effective when it was signed by all parties on

August 31, 2009. [#48] at 10-12. The Library failed to complete its calculations in full within the

proscribed time period. It cannot now attempt to recoup from plaintiff funds that it transferred to

her, especially in light of its representation that, despite its excess payment, it would not do so.

Plaintiff’s motion with regards to the Notice of Dunning will be granted as the Library failed to

timely calculate the actual cost of the increased benefits and furthermore averred that it would

not attempt to recoup the excess payment.

An Order accompanies this Memorandum Opinion. Digitally signed by John M. Facciola DN: c=US, st=DC, ou=District of Columbia, [email protected], o=U.S. District Court, District of Columbia, cn=John M. Facciola Date: 2012.07.26 16:42:41 -04'00' ________________________________________________ JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE