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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PAMELA McKINNEY,

 

Plaintiff,

v. 

UNITED STATES POSTAL SERVICE,

Defendant. 

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

MEMORANDUM OPINION1

Plaintiff Pamela McKinney (“Plaintiff” or “McKinney”) brings this putative class action 

on behalf of herself and all other similarly situated beneficiaries, seeking to recover unpaid 

interest on additional death benefit amounts that were paid, or that should have been paid, by the 

United States Postal Service (the “Postal Service”) pursuant to an Annuity Protection Program. 

The matter is presently before the Court on McKinney’s Motion for Class Certification. (Dkt. 

No. 38). Having carefully considered the parties’ respective briefing, the entire record in this 

case, and the arguments of counsel during a hearing on January 14, 2013, the Court finds that 

McKinney’s proposed class satisfies all of the elements of Federal Rule of Civil Procedure 23(a), 

as well as the “predominance” factor of Rule 23(b)(3), for the reasons set forth herein. However, 

 1 This unpublished memorandum opinion is intended solely to inform the parties and any 

reviewing court of the basis for the instant ruling, or, alternatively, to assist in any potential 

future analysis of the res judicata, law of the case, or preclusive effect of the ruling. The Court 

has designated this opinion as “not intended for publication,” but this Court cannot prevent or 

prohibit the publication of this opinion in the various and sundry electronic and legal databases 

(as it is a public document), and this Court cannot prevent or prohibit the citation of this opinion 

by counsel. Cf. FED. R. APP. P. 32.1. Nonetheless, as stated in the operational handbook adopted 

by our Court of Appeals, “counsel are reminded that the Court’s decision to issue an unpublished 

disposition means that the Court sees no precedential value in that disposition.” D.C. Circuit 

Handbook of Practice and Internal Procedures 43 (2011).
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the Court defers a full ruling on McKinney’s Motion for Class Certification pending limited 

discovery efforts aimed at the manageability aspect of Rule 23(b)(3)’s “superiority” prong, 

followed by a further report and/or additional briefing from the parties on that issue. 

BACKGROUND

In July 1981, the Postal Service and several postal employee unions entered into a threeyear collective bargaining agreement (“CBA”) that relates to this case. (Dkt. No. 38-1). As 

relevant here, the CBA deferred until 1984 a cost-of-living adjustment (“COLA”) in the amount 

of $3,619.00 that would have otherwise gone into effect in 1981. (Id. at Art. 9, sect. 3). At that 

time, the Postal Service and the unions also executed a memorandum of agreement, known as the 

Annuity Protection Program, which provided, in relevant part, that: 

[N]o employee[] whose basic pay is not increased by the amount of $3,619 (the 

annualized cost-of-living adjustment accumulated during the life of the 1978 

National Agreement) before the first full pay period of October, 1984, due to the 

provisions set forth in Article 9, Section 3, of the 1981 National Agreement, will 

suffer any diminution of annuity (e.g., optional, disability, or survivors benefits) 

by reason thereof.

(Id. at p. 163). Apparently, the Postal Service and the unions also had an oral understanding that 

“no one will get hurt” by the delay in rolling the accumulated COLA into employees’ basic pay. 

(Dkt. No. 26 (“Am. Compl.”) at ¶ 11). 

Subsequently, the Postal Service and the unions disagreed over the scope of the Annuity 

Protection Program surrounding which specific benefits were to be included within its terms.

(Id. at ¶ 12). That dispute was arbitrated, and a decision and award was issued by the arbitrator, 

Clark Kerr, on August 5, 1986. (Dkt. No. 38-2). Among other rulings, the arbitrator determined 

that life insurance benefits were among those benefits included in the Annuity Protection 

Program, explaining that “[f]ull remedy should be awarded to those survivors of deceased postal 
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employees who have suffered a diminution of life insurance benefits.” (Id.). The arbitrator did 

not make any determination as to whether interest should be awarded on any remedies, “since 

this was not adequately explored before him,” and that issue was left open for discussion 

between the parties. (Id.). For reasons unexplained, however, the Postal Service and the unions 

apparently never discussed whether interest should be included in the award, nor did they ever 

ask the arbitrator to rule on that issue. 

According to McKinney’s Amended Complaint, her father, Lepolion McKinney, was 

employed by the Postal Service from April 17, 1969 through December 17, 1969, and later from 

November 1980 until January 31, 1982. (Am. Compl. at ¶ 5). He passed away on January 31, 

1982, and his death was ruled accidental, entitling McKinney and her siblings to death benefits 

as beneficiaries under her father’s life insurance policy from the Postal Service. (Id. at ¶¶ 6-7). 

According to McKinney, the Office of Federal Employees’ Group Life Insurance (OFEGLI) 

issued initial death benefit payments to her and her siblings shortly after his death. (Id.). But her 

father was subject to the Annuity Protection Program encompassed in the July 1981 CBA, which 

meant that those initial death benefit payments did not factor in additional amounts that would 

have been paid out as a result of the deferred COLA. 

After the Kerr Award was issued in July 1986, decades inexplicably passed before the 

Postal Service took any action to pay McKinney or her siblings the additional benefits to which 

they were owed under the Annuity Protection Program. (Id. at ¶¶ 18, 23). Finally, on July 23, 

2008, McKinney received a letter from the Postal Service, notifying her that she may be eligible 

for an additional death benefit payment. (Id. at ¶ 18; Dkt. No. 41-1). On August 22, 2008, 

McKinney was sent a check from the Postal Service in the amount of $2,665.80, which was 

described as “the difference in the death benefit you had received from OFEGLI and the amount 
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you would have received if applicable cost of living adjustments had been part of [her father’s] 

basic pay.” (Am. Compl. at ¶ 20). She also alleges that on May 22, 2009, she received a second 

check, in the amount of $1,333.33, representing the COLA adjustment on a double benefit under

her father’s life insurance policy based on the classification of his death as “accidental.” (Id. at ¶ 

21). Altogether, McKinney received an additional $3,999.13 in death benefits attributable to the 

Annuity Protection Program. (Id. at ¶ 22). However, the Postal Service refused to pay 

McKinney any interest on these additional amounts, ostensibly because “the agreements do not 

state that the USPS is obligated to pay any interest on the monies due to the beneficiaries.” (See 

Dkt. Nos. 38-3, 38-4, 38-5). 

McKinney now brings this putative class action on behalf of herself and all other 

similarly situated beneficiaries, seeking to recover interest on any additional benefits that were, 

or that should have been, paid out by the Postal Service pursuant to the Annuity Protection 

Program. Through her Amended Complaint, she asserts four remaining claims: (1) Breach of 

Contract, (2) Unjust Enrichment, (3) Enforcement of Arbitration Decision, and (4) Accounting.2

 

As defined in her moving papers, McKinney seeks to certify the following proposed class:

All former employees of the United States Postal Service covered by the July 

1981 Collective Bargaining Agreement (CBA), the Memorandum of Agreement 

and/or the oral understanding among the Postal Service and the unions relating to 

the CBA, and their heirs and beneficiaries, who were paid or were entitled to be 

paid benefits in accordance with the agreements and the arbitration decision dated

August 5, 1986 alleged in paragraph 14 of the amended complaint, and who were 

not paid interest.

(Dkt. No. 38 (“Pl.’s Mem.”) at 1). 

 2 In addition, McKinney originally advanced a conversion claim in this action, but the 

Court dismissed that count on August 31, 2012, after finding that it was preempted by the 

Federal Tort Claims Act. (See Dkt. Nos. 35, 36). 
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ANALYSIS

A. McKinney’s Claims Were Timely Filed Under 28 U.S.C. § 2401

As an initial matter, and before even turning to the issue of class certification, the Postal 

Service argues that the Court should dismiss McKinney’s claims for lack of subject matter 

jurisdiction pursuant to 28 U.S.C. § 2401(a), which provides that “every civil action commenced 

against the United States shall be barred unless the complaint is filed within six years after the 

right of action first accrues.” 28 U.S.C. § 2401(a). It bears mentioning that this is not the first 

time the Postal Service has argued for dismissal on jurisdictional grounds. The Court previously 

considered and rejected a number of jurisdictional arguments raised by the Postal Service 

through its Motion to Dismiss McKinney’s Amended Complaint. (See Dkt. No. 27). Ultimately, 

the Court concluded that McKinney properly invoked 39 U.S.C. §§ 409, 1208(b) as the 

jurisdictional basis for her claims, and found that her claims were timely filed. The Postal 

Service’s newest jurisdictional argument fares no better. 

According to the Postal Service, the limitations period set forth in § 2401(a) is 

jurisdictional, and as a result, the Postal Service argues, McKinney cannot invoke any equitable 

doctrines to extend the six-year deadline for commencing her claims against the United States. 

To begin with, the law on these issues is not as settled as the Postal Service suggests. While the 

D.C. Circuit has previously characterized § 2401(a) as a “jurisdictional condition,” P&V Enters. 

v. United States Army Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008), it has also 

expressly refrained from deciding whether § 2401(a) is “susceptible to judicial exceptions” and 

equitable doctrines. Felter v. Kempthorne, 473 F.3d 1255, 1259-60 (D.C. Cir. 2007) (“We need 

not resolve this issue, for [appellant’s] claims fail even if [the continuing violation and equitable 
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tolling doctrines] apply to section 2401(a).”).3 In this Court’s view, therefore, whether § 2401(a) 

is jurisdictional in nature, and whether equitable exceptions can apply to extend its limitations 

period, remain open questions. But, on balance, the Court need not wrestle with these thorny 

issues because, even assuming that § 2401(a) is a jurisdictional condition to suit that precludes 

the application of equitable principles, the Postal Service’s argument goes a step too far. 

More specifically, the Postal Service argues that because § 2401(a) is jurisdictional, 

McKinney cannot rely on the so-called “discovery rule” to extend the statute of limitations. 

(Dkt. No. 39 (“Def.’s Opp’n”) at 8-10). In so arguing, however, the Postal Service inaccurately 

characterizes the discovery rule as an equitable doctrine. Unlike the doctrines of equitable 

tolling and estoppel, for example, “which ask whether equity requires extending a limitations 

period,” the discovery rule does not operate to extend or toll the statute of limitations period; 

rather, the discovery rule is a “legal doctrine which governs when a limitations period begins to 

run” in the first place. Smith-Haynie v. District of Columbia, 155 F.3d 575, 578-79 (D.C. Cir. 

1998) (explaining the “sometimes muddled” distinction between the discovery rule and the 

equitable doctrines of estoppel and equitable tolling).4 As a result, the D.C. Circuit has long 

 3 In describing the unsettled nature of these issues, the Court of Appeals noted the 

“tension” between the Supreme Court’s holding in Irwin v. VA, 498 U.S. 89, 95-96 (1990), that 

the “same rebuttable presumption of equitable tolling applicable to suits against private 

defendants should apply to suits against the United States,” and the D.C. Circuit’s own prior 

opinions that § 2401(a) is “a jurisdictional condition attached to the government’s waiver of 

sovereign immunity.” Felter, 473 F.3d at 1260; see also Harris v. FAA, 353 F.3d 1006, 1013 n.7 

(D.C. Cir. 2004). Even in its relatively recent decision in P&V Enterprises, the Circuit found no 

occasion to resolve this tension because neither party challenged § 2401(a)’s jurisdictional nature 

on appeal in that case. P&V Enters., 516 F.3d at 1027. 

4 As one leading commentator on issues of federal procedure has explained: 

Another possible pitfall lies in the easily blurred distinction between accrual of the 

plaintiff’s cause of action and notions of estoppel or tolling of the limitations period. The 

typical statute of limitations normally begins to run at the point of accrual of the 

plaintiff’s claim; the running of the period is interrupted and postponed by such 

phenomena as estoppel or tolling.
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described the discovery rule as “the general accrual rule in federal courts,” rather than as an 

equitable exception to general statute of limitations principles. See, e.g., Connors v. Hallmark & 

Son Coal Co., 935 F.2d 336, 342 (D.C. Cir. 1991) (“[T]he discovery rule is to be applied in all 

federal question cases in the absence of a contrary directive from Congress”); Sprint Commc’ns 

Co., L.P. v. FCC, 76 F.3d 1221, 1226 (D.C. Cir. 1996). As explained by the Connors court, the 

discovery rule can be summarized as follows: 

[I]f the injury is such that it should reasonably be discovered at the time it occurs, 

then the plaintiff should be charged with discovery of the injury, and the 

limitations period should commence, at that time. But if, on the other hand, the 

injury is not of the sort that can readily be discovered when it occurs, then the 

action will accrue, and the limitations period commence, only when the plaintiff 

has discovered, or with due diligence should have discovered, the injury. 

Connors, 935 F.2d at 342 (citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 

1990) (Posner, J.). In either circumstance, the application of the discovery rule determines when 

a claim accrues and, in turn, when the statute of limitations period commences—not whether the 

limitations period should be tolled or extended. Thus, even assuming that § 2401(a) is arguably

characterized as a jurisdictional condition that would preclude the use of equitable principles to 

extend the statute of limitations, this would serve as no bar to the Court applying the well-settled

discovery rule to determine when the applicable statute of limitations underlying McKinney’s 

claims accrued in the first place.5

 

4 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1056, at 239

(3d ed. 2002) (emphasis added). Thus, the “discovery rule” is a legal doctrine that determines 

the “accrual of the plaintiff’s cause of action”—i.e., the point at which the limitations period 

begins to run—rather than an equitable doctrine that permits the “interrupt[ion] and 

postpone[ment]” of an already-running limitations period. Id.

5 Notably, at least one other judge in this District has applied the “discovery rule” in 

determining when the statute of limitations accrued for claims brought under § 2401(a). Nihiser 

v. White, 211 F. Supp. 2d 125, 128 (D.D.C. 2002) (Lamberth, J.). And, separate and apart from 

the application of true equitable exceptions, the D.C. Circuit has also expressly declined to 

decide whether the discovery rule governs the accrual of the statute of limitations under § 
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None of the cases cited by the Postal Service compel a different result. To be sure, the 

Court recognizes that other members of this bench have, in passing, described the discovery rule 

as an equitable doctrine. See, e.g., W. Va. Highlands Conservancy v. Johnson, 540 F. Supp. 2d 

125, 138 (D.D.C. 2008) (Bates, J.) (“Traditionally, when a statute of limitations has been deemed 

jurisdictional, it has acted as an absolute bar and could not be overcome by the application of 

judicially recognized exceptions, such as waiver, estoppel, equitable tolling, fraudulent 

concealment, the discovery rule, and the continuing violations doctrine.”); Conservation Force v. 

Salazar, 811 F. Supp. 2d 18, 27 (D.D.C. 2011) (Rothstein, J.); Terry v. United States SBA, 699 F. 

Supp. 2d 49, 54-55 (D.D.C. 2010) (Huvelle, J.); Felter v. Norton, 412 F. Supp. 2d 118, 122-23 

(D.D.C. 2006) (Roberts, J.). But all of those cases involved truly equitable exceptions—either 

the continuing violations doctrine and/or the doctrine of equitable tolling—and did not 

specifically consider whether the discovery rule can or should apply for purposes of § 2401(a). 

Therefore, while those decisions are not binding on this Court in any event, the cursory 

characterizations therein of the discovery rule as an equitable exception are dicta.6

 

Therefore, as the Court has already found, McKinney’s claims against the Postal Service 

were timely filed. In arguing that the Court lacks subject matter jurisdiction based on the sixyear bar of § 2401(a), the Postal Service seems to implicitly argue—without ever expressly

stating—that McKinney’s claims somehow accrued at the time that the underlying arbitration 

 

2401(a) in an action challenging final agency action under the Administrative Procedure Act. 

Hardin v. Jackson, 625 F.3d 739, 743 (D.C. Cir. 2010) (“[E]ven assuming the discovery rule 

applies here—an issue we do not decide—the appellants’ action was filed out of time.”). 6 The Court also notes that, of those cases, only Felter v. Norton cites to any circuit 

authority for the proposition that the discovery rule is an equitable, “judicially recognized 

exception” to the statute of limitations. See Felter, 412 F. Supp. 2d at 122 (citing Nelson v. Int’l 

Paint Co., 716 F.2d 640, 645 (9th Cir. 1983)). Because Nelson is a case from the Ninth Circuit 

Court of Appeals construing and applying California state law, its reasoning has little application 

to a case applying federal law that is pending in the District of Columbia. 
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award was originally issued in 1986. This is incorrect. It was not until July 23, 2008, that 

McKinney received notice that she had not been paid the full amount of death benefits to which 

she was entitled. It was also the first time that McKinney knew, or reasonably should have 

known, that the Postal Service would not pay interest on the additional benefits she received at 

that time. Therefore, her right of action against the Postal Service accrued at that time, on July 

23, 2008. Because McKinney filed her lawsuit less than three years later, on March 28, 2011, 

her claims in this matter were commenced well within the six-year period prescribed by 28 

U.S.C. § 2401(a), and the Postal Service’s newest jurisdictional attack is without merit. 

 

B. Standard Governing Class Certification

To secure class certification, a plaintiff “must affirmatively demonstrate [her] compliance 

with” Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 

2541, 2551 (2011). First, a plaintiff seeking certification must satisfy the four threshold 

elements of Rule 23(a), by showing: 

(1) the class is so numerous that joinder of all members is impracticable, (2) there 

are questions of law or fact common to the class, (3) the claims or defenses of the 

representative parties are typical of the claims or defenses of the class, and (4) the 

representative parties will fairly and adequately protect the interests of the class.

Love v. Johanns, 439 F.3d 723, 727 (D.C. Cir. 2006) (quoting FED. R. CIV. P. 23(a)). “If all four 

prerequisites under Rule 23(a) are met, then [a plaintiff] must also show that [her] claims fit 

within one of the subsections of Rule 23(b).” Id. (citing Amchem Prods., Inc. v. Windsor, 521 

U.S. 591, 613-16 (1997)). In determining whether to certify a class, the district court must 

undertake a “rigorous analysis” to confirm whether the requirements of Rule 23 have been 

satisfied. Dukes, 131 S. Ct. at 2551-52 (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 

147, 161 (1982)). Applying these standards, the Court concludes that, after narrowing 
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McKinney’s proposed class in some of the respects urged by the Postal Service, as explained 

more fully below, the proposed class in this case meets all of the threshold requirements of Rule 

23(a), along with the “predominance” element of Rule 23(b)(3).7 

C. Rule 23(a) Factors

1. Numerosity

Under Rule 23(a)(1), McKinney must establish that “the class is so numerous that joinder 

of all members is impracticable.” FED. R. CIV. P. 23(a)(1). McKinney need not “provide an 

exact number of putative class members in order to satisfy the numerosity requirement,” Pigford 

v. Glickman, 182 F.R.D. 341, 347 (D.D.C. 1998), and “[c]ourts in this District have generally 

found that the numerosity requirement is satisfied and that joinder is impracticable where a 

proposed class has at least forty members.” Cohen v. Warner Chilcott Public Ltd. Co., 522 F. 

Supp. 2d 105, 114 (D.D.C. 2007). Notably, the Postal Service expressly concedes that “a 

properly defined class of beneficiaries would likely exceed forty in number.” (Def.’s Opp’n at 

15). Given this concession, and based on the Court’s own analysis, McKinney has satisfied the 

numerosity requirement. Indeed, as McKinney points out, the Postal Service’s records indicate 

that, since January 2009 alone, it has identified and paid additional death benefits under the 

Annuity Protection Program to at least 503 beneficiaries, (Dkt. No. 41 (“Pl.’s Reply”) at 17), and 

reaching back through the full statutory period, that number will only grow. In addition, as of 

the date of its opposition, the Postal Service estimates that 1,142 additional beneficiaries remain 

unable to be located. (Dkt. No. 39-1 at ¶ 7(m)). Therefore, given the number of potential class 

 7 As already explained, the Court expresses no opinion at this juncture as to whether 

McKinney’s proposed class satisfies the “superiority” prong of Rule 23(b)(3). 
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members, and their apparent geographic dispersion throughout the United States, the Court finds 

that joinder would be impracticable and that the numerosity requirement is satisfied. 

2. Commonality

Rule 23(a)(2) requires that there are questions of law or fact common to the class. FED.

R. CIV. P. 23(a)(2). “To establish commonality under Rule 23(a)(2), a plaintiff must identify at 

least one question common to all members of the class.” Garcia v. Johanns, 444 F.3d 625, 632 

(D.C. Cir. 2006) (citing In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 528 (3d Cir. 

2004)). “Significantly, ‘factual variations among the class members will not defeat the 

commonality requirement, so long as a single aspect or feature of the claim is common to all 

proposed class members.’” Cohen, 522 F. Supp. 2d at 114 (quoting Bynum v. District of 

Columbia, 214 F.R.D. 27, 33 (D.D.C. 2003)). Here, McKinney has successfully shown that 

common questions of law and fact exist with respect to her proposed class. Most significantly, 

all of the potential class members’ claims will hinge on a central legal question—whether the 

Postal Service is obligated to pay interest on additional benefits issued to beneficiaries under the 

Annuity Protection Program. In addition, their claims are underpinned by common facts, as all 

of their claims derive from the same CBA, the same Annuity Protection Program, and the same 

arbitration award. Further, it appears that the Postal Service’s explanation for refusing to pay 

interest on these additional benefits is uniform across the entire class: in its view, “the 

agreements do not state that the Postal Service is obligated to pay any interest on the monies due 

to the beneficiaries.” (See Dkt. No. 38-3). These unifying questions of law and fact are more 

than sufficient to satisfy the commonality prong of Rule 23(a)(2). 
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3. Typicality

Rule 23(a)(3) requires a finding that “the claims or defenses of the representative parties 

are typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). In essence, “[t]he 

typicality requirement aims at ensuring that the class representatives have suffered injuries in the 

same general fashion as absent class members.” Cohen, 522 F. Supp. 2d at 115 (internal 

citations and quotation marks omitted). A proposed class representative’s claim is “typical if it 

arises from the same event or practice or course of conduct that gives rise to a claim of another 

class member’s where his or her claims are based on the same legal theory.” Stewart v. Rubin, 

948 F. Supp. 1077, 1088 (D.D.C. 1996), aff’d, 124 F.3d 1309 (D.C. Cir. 1997). 

The Postal Service raises a number of arguments attacking McKinney’s proposed class as 

too broad—arguments that the Court believes are most aptly characterized as challenges to the 

typicality prong of Rule 23(a)(3). First, the Postal Service argues that McKinney’s proposed 

class is overly broad because it includes beneficiaries whose claims have been extinguished by 

the statute of limitations. (Def.’s Opp’n at 17-19). Second, the Postal Service asserts that 

McKinney’s claims are not typical of former Postal Service employees, who, unlike McKinney, 

must first file a grievance under their CBA before pursuing any claim in court. (Id. at 19-21). 

Third, the Postal Service argues that McKinney’s claims—which are based upon her receipt of 

death benefits—are not typical of beneficiaries who received (or should have received) other 

categories of benefits under the Annuity Protection Program, such as disability benefits. (Id. at 

22-23). Notably, McKinney largely consents to these limitations in her reply briefing, and 

agrees that “[s]ome narrowing of the class is appropriate.” (Pl.’s Reply at 14). The Court 

discusses each issue in turn.
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First, the Postal Service argues that the claims of putative class members who received 

notice of additional death benefits prior to March 28, 2008 are time-barred, which means that 

those individuals must be excluded from any potential class. In so arguing, the Postal Service 

relies on a three-year statute of limitations, apparently drawing from the Court’s earlier 

determination that the District of Columbia’s three-year statute of limitations for breach of 

contract claims, D.C. Code § 12-301(7), was most analogous to McKinney’s claims in this case. 

(See Dkt. No. 36 at 6:13-20). The Postal Service is correct that “the applicable statute of 

limitations marks the outer boundary for class membership.” Schmidt v. Interstate Federal Sav. 

& Loan Assoc., 74 F.R.D. 423, 428 (D.D.C. 1977). As a general matter, McKinney concedes as

much, but she contends that 28 U.S.C. § 2401(a) provides the more appropriate statute of 

limitations for her claims, which would extend the statutory period back six years, until March 

25, 2005. (Pl.’s Reply at 15). At first blush, McKinney’s argument has some appeal, 

particularly given that the Postal Service itself invoked § 2401(a) to seek dismissal of 

McKinney’s claims on jurisdictional grounds. But at oral argument, counsel for the Postal 

Service asserted that § 2401(a) simply imposes an outer limit on claims against the United States

and that its broader, “catch-all” provisions should not displace a more specific statute of 

limitations governing the particular claims at issue. The Court agrees.

“Though § 2401(a) sets an outside time limit on suits against the United States, there is 

nothing to suggest that Congress intended it to govern any time a court finds a cause of action 

without a specific limitations period.” Price v. Bernanke, 470 F.3d 384, 388 (D.C. Cir. 2006). 

Rather, in the absence of a clearly-prescribed limitations period, the Court “must borrow an 

appropriate statute of limitations from an analogous statute,” id. at 387 (citing DelCostello v. 

Int’l Bhd. of Teamsters, 462 U.S. 151, 158 (1983)), and in so doing, the Court adheres to its 
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earlier determination that the three-year limitations period of D.C. Code § 12-301(7) governs 

McKinney’s claims. (See Dkt. No. 36 at 6:13-20). Indeed, the Supreme Court has made clear

that state statutes of limitations are the “lender of first resort,” N. Star Steel Co. v. Thomas, 515 

U.S. 29, 33-34 (1995), which means that this Court should “presumptively apply the limitation 

period that would apply to the state law claim that is most closely analogous to the federal 

claim.” Cephas v. MVM, Inc., 520 F.3d 480 (D.C. Cir. 2008) (applying D.C. Code § 12-301(7) 

to contractual claim under § 301 of the Labor Management Relations Act) (internal citations and 

quotation marks omitted). And given the contractual nature of McKinney’s claims, the Court 

finds it most appropriate to apply the analogous state-law limitations period of D.C. Code § 12-

301(7), rather than the more generalized “catch-all” limitations period of 28 U.S.C. § 2401(a).8

 

As a result, McKinney’s proposed class shall exclude all beneficiaries who received notice that 

they were entitled to additional benefits on or before March 28, 2008—i.e., more than three years 

before McKinney filed this action. 

Second, the Postal Service argues that McKinney’s proposed class cannot include 

“former employees” of the Postal Service because those individuals must have exhausted the 

mandatory grievance process under the applicable CBA. In response, McKinney does not 

meaningfully dispute this argument, although she rests on the alternative rationale that former 

employees’ claims would be largely “moot” as time-barred by the statute of limitations. (Pl.’s 

Reply at 15-16). In either event, McKinney effectively concedes that “former employees” 

should be excluded from any certified class, and the Court finds no reason to depart from the 

 8 Otherwise, this would create the anomalous result of effectively doubling the limitations 

period covering the claims of McKinney’s proposed class, simply because she asserts her claims 

against the United States, rather than a private entity. As our Circuit has explained, “[g]iven that 

statutes of limitations against the government involve a waiver of sovereign immunity, it seems 

unlikely Congress intended such an anomaly.” Price, 470 F.3d at 388.
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parties’ agreement on the issue. Therefore, only former employees’ beneficiaries—rather than 

the former employees themselves—shall be included in McKinney’s proposed class.9

 

Third, the Postal Service contends that any potential class should be expressly limited to 

beneficiaries who received death benefits under the Annuity Protection Plan, and should not 

include beneficiaries of other categories of benefits, such as disability benefits. The Postal 

Service insists that McKinney has not demonstrated that her claims—which are premised 

exclusively on her receipt of additional death benefits—are common to or typical of claims by

individuals who may have received other forms of benefits. McKinney counters that this “is 

probably untrue,” and asserts, in conclusory fashion, that “the issue in this case does not depend 

on the type of benefits at issue.” (Pl.’s Reply at 16). Yet, she goes on to concede that the 

proposed class could be narrowed somewhat on these grounds, and she states that beneficiaries 

due interest on disability benefits “are likely excluded on limitation grounds.” (Id.). From the 

Court’s perspective, neither party clearly identified what other categories of benefits—other than 

death benefits and disability benefits—may have been the subject of supplemental payments 

under the Annuity Protection Program. Of course, McKinney bears the burden of establishing 

that her claims are typical of the putative class members she seeks to represent. And while the 

Court believes she meets this burden with respect to other death benefit beneficiaries, the Court 

simply cannot, on the present record, conclude the same with respect to individuals, if any, who 

received other types of supplemental benefit payments under the Annuity Protection Program. 

Accordingly, the Court finds that McKinney’s proposed class should be limited to beneficiaries 

who received death benefits under the Annuity Protection Program. 

 9 Practically speaking, this limitation is likely subsumed by the Court’s additional 

determination that McKinney’s class must be limited to those beneficiaries who received death 

benefits under the Annuity Protection Program. Nonetheless, for the sake of thoroughness, the 

Court expressly resolves this question as well. 
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In sum, after applying these limitations to the scope of McKinney’s putative class, the 

Court finds that McKinney’s claims are typical of those individuals falling within the following 

class definition:

All beneficiaries of deceased United States Postal Service employees 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.10 

4. Adequacy

The final requirement of Rule 23(a) is that the “the representative parties will fairly and 

adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). “Two criteria for 

determining the adequacy of representation are generally recognized: (1) the named 

representative must not have antagonistic or conflicting interests with the unnamed members of 

the class, and (2) the representative must appear able to vigorously prosecute the interests of the 

class through qualified counsel.” Twelve John Does v. District of Columbia, 117 F.3d 571, 575 

(D.C. Cir. 1997) (quoting Nat’l Assoc. of Regional Medical Programs, Inc. v. Matthews, 551 

F.2d 340, 345 (D.C. Cir. 1976)). With respect to the proposed class definition as narrowed, there 

is no evidence that McKinney’s interests are antagonistic or in some way conflict with the 

interests of the unnamed class members. The Court has closely reviewed the record, and 

discerns no reason why named McKinney would not fairly and adequately protect the interests of 

the class. In addition, the Court is also convinced that McKinney’s counsel, who are experienced 

 10 It is well within the Court’s authority to redefine McKinney’s proposed class. See 7A 

CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND 

PROCEDURE § 1759 at 130-31 (3d ed. 2005) (“[I]f plaintiff’s definition of the class is found to be 

unacceptable, the court may construe the complaint or redefine the class to bring it within the 

scope of Rule 23.”); see also ALBA CONTE & HERBERT B. NEWBERG, NEWBERG ON CLASS 

ACTIONS § 8:12, at 200 (4th ed. 2002) (“When a class definition is not acceptable, judicial 

discretion can be utilized to save the lawsuit from dismissal.”). 
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in class litigation and who have vigorously pursued the claims in this case, are adequate to 

represent the putative class. Therefore, McKinney has satisfied the adequacy requirement of 

Rule 23(a)(4). 

D. Rule 23(b) Factors

McKinney seeks to certify her proposed class under Rule 23(b)(3), which requires her to 

establish that “questions of law or fact common to class members predominate over questions 

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). The two components of 

this standard are commonly referred to as the “predominance” and “superiority” requirements.

1. Predominance

The predominance inquiry of Rule 23(b)(3) “tests whether proposed classes are 

sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. 

Windsor, 521 U.S. 591, 623 (1997). Generally speaking, “predominance is met when there

exists generalized evidence which proves or disproves an element on a simultaneous, class-wide 

basis, since such proof obviates the need to examine each class members’ individual position.” 

Cohen, 522 F. Supp. 2d at 116 (quoting In re Vitamins Antitrust Litig., 209 F.R.D. 251, 262 

(D.D.C. 2002)). 

The Postal Service does not meaningfully dispute that common questions of law and fact 

predominate over individualized issues concerning putative class members’ claims. At most, the 

Postal Service argues, in conclusory fashion, that the Court will be required to resolve 

“individual” factual questions regarding “when each beneficiary became aware of the 

[arbitration] award.” (Def.’s Opp’n at 23). While not entirely clear, the Court understands the 
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Postal Service to be arguing that the task of determining when the statute of limitations accrued 

for each potential class member will be an individualized inquiry that renders class treatment 

inappropriate. But as set forth above, the Court has narrowed McKinney’s proposed class to 

exclude former employees and other beneficiaries whose claims would be time-barred by the 

statute of limitations. Even if those rulings do not obviate the Postal Service’s concerns entirely, 

the Postal service does not explain why it will be difficult to determine when a potential class 

member received notice as defined above. To the extent that any individual statute-of-limitations 

issues remain, the Court is confident that they can be easily resolved without jeopardizing the 

overall class-wide nature of McKinney’s claims. Accordingly, in view of the common issues of 

law and fact underlying the potential class members’ claims in this case, as explained in the 

Court’s commonality analysis above, McKinney has satisfied the predominance requirement of 

Rule 23(b)(3). 

2. Superiority

In addition to finding predominance, this Court must also consider whether the class 

action mechanism is “superior to other available methods for fairly and efficiently adjudicating 

the controversy.” FED. R. CIV. P. 23(b)(3). In reaching this determination, the Court should 

consider: “(A) the class members’ interest 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. A case generally meets this requirement when “common questions of law or fact 
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permit the court to consolidate otherwise identical actions into a single efficient unit.” Bynum, 

214 F.R.D. at 40. 

The Postal Service principally focuses on the “manageability” aspect of the superiority 

inquiry, arguing that, at least with respect to a portion of McKinney’s proposed class, the 

litigation of their claims on a class-wide basis would be unmanageable. More specifically, the 

Postal Service explains that it has engaged in “ongoing and reasonable efforts” to notify many 

additional beneficiaries since 1987, and that, as of December 2012, the Postal Service has been

unable to locate 1,142 outstanding beneficiaries, despite its best efforts. (Def’s Opp’n at 23-25). 

In turn, the Postal Service argues that it will be extremely difficult, if not impossible, to locate 

these particular putative class members to provide the notice required by Rule 23(c)(2), which, in 

its view, renders at least some of McKinney’s proposed class unmanageable. (Id.).11

For her part, McKinney does not categorically disagree with this analysis, but she argues 

that finding this particular segment of the proposed class unmanageable at this juncture would be 

premature, without at least affording her and her counsel an opportunity to locate the as-of-yet 

unfound beneficiaries. (Pl.’s Reply at 17-19). She asks for the opportunity to track down some 

of these individuals, using a representative sample of fifty (50) putative class members from 

information provided by the Postal Service. Depending on the results of those efforts, McKinney 

argues, the Court can make a manageability determination at that time. (Id.). At the hearing on 

this matter, counsel for the Postal Service did not have any objection to proceeding in this 

 11 At oral argument, the Court asked whether the Postal Service was arguing that 

McKinney’s claims are atypical of the claims of these putative class members, inasmuch as

McKinney’s claims are limited to unpaid interest on additional benefits, while these other 

members would presumably also seek to recover the additional, underlying benefits payments in 

addition to any interest owed on those amounts. Counsel for the Postal Service confirmed that 

the Postal Service did not advance any such argument. Instead, its objection to including these 

individuals in the proposed class was based strictly on manageability concerns. 
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fashion, provided that an appropriate protective order was in place to govern the disclosure of 

sensitive personal and contact information that would be exchanged. 

Given the parties’ agreement on the issue, the Court concludes that McKinney’s proposed 

approach is appropriate. Therefore, the Court will defer its ruling as to whether McKinney’s 

proposed class satisfies the “superiority” prong of Federal Rule 23(b)(3) pending McKinney’s 

efforts to locate additional beneficiaries, in accordance with the procedures laid out in the 

accompanying Order. 

 

CONCLUSION

For the reasons set forth above, the Court concludes that McKinney has satisfied all of 

the requisite elements of Federal Rule of Civil Procedure 23(a), as well as the “predominance” 

component of Rule 23(b)(3). However, the Court reserves a ruling as to the “superiority” factor 

of Rule 23(b)(3)—and, by implication, a final ruling on McKinney’s Motion for Class 

Certification—pending the results of McKinney’s efforts to track down additional putative class 

member beneficiaries, in accordance with the procedures set forth in the accompanying Order. 

An appropriate Order accompanies this Memorandum Opinion.

Date: January 16, 2013

 

 ROBERT L. WILKINS

United States District Judge