UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

BO Z ENA SARNECKA-CROUCH, ) ) Plaintiff, ) ) v. ) Civil Action No. 06-1169 ( ESH/J MF) ) J AMES BI L L I

NGTON , ) L I BRARIAN OF CONGRESS, ) ) Def endant. )

______________________ ______________)

MEMORAN DUM OP INION Now pendingbefor e the Court is Plaintiff’s Notice of Motion and Motion to R eopen a nd to Enforc e the Stipulation of Settlement and Dismissal [ #50]. For the followingrea sons, plaintiff’s motion will be gr anted insofa r as the Court c oncludes that, a s the defe ndant conc edes, it has jurisdiction to enforce the settlement agree ment and that it should ex erc ise anc illary jurisdiction over plaintiff’s c laim for dama g es for the asser ted delay in the defe ndant’s comply ing with the terms of the se ttlement ag ree ment. Ba ckground 1. This case settled on September 24, 2009. Stipulation of Settlement and Dismissal [ #48]. 2. Pursuant to the settlement agree ment, defe ndant agree d to pay plaintiff a total sum of two hundred se venty

five thousand ( $275,000) dollars. I d. at 1. 3. Of that total sum, $150,000 was to be pa id by the L ibrary

of Cong ress dire ctly

in two installments, in t he followingmanner : 1) defe ndant was to promote pla intiff to gr ade G S15 step 10 level re troac tive to October 20, 2005, and apply

a portion of the se ttlementpay ment to fund the cost of pla intiff’s incre ased r etireme nt benef its, which defe ndant initially estimated to be $89,000; 2) de fenda nt was to pay

the re mainder of

the settlement pay ment to plaintiff as a lump sum pay ment; 3) defe ndant was to amend plaintiff’s personne l folder to re flec t her re instatement and promotion; and 4) de fenda nt was to pay both its and plaintiff’s mandatory contributions that were to be attributable to plaintiff’ s reinstateme nt and promotion, including Socia l Security , the Fe dera l Employ ees Retirement Sy stem (“F ERS”), Medica re a nd all “bre akag e” a s defined in 5 C.F .R. § 1605.1(b), associate d with plaintiff’s Thrift Saving s Plan acc ount. I d. at 3.

1 4. Additionally , defe ndant was to e nsure that plaintiff w ould be able to r etire f rom the fede ral ser

vice with plaintiff’ s leng th of servic e at the grade GS 15 step 10 level,

measure d from Oc tober 20, 2005. I d. 5. The languag e at issue in the se ttlement conce rningthe re troac tive promotion and reinstateme nt of plaintiff at GS-15 step 10 le vel re ads as f ollows: Reinstatement and Retroa ctive Promotion. Defe ndant shall amend plaintiff’s Of

ficial Personne l Folder

to refle ct her

reinstateme nt as a L ibrary employ ee a

nd promotion to the gr ade G S-15 step 10 level, re troac tive to October 20, 2005. Plaintiff shall not rece ive any back pa y , cost-of- living incr ease s, or other pa y ments, over a

nd above the settlement pay

ment in para g raph 1 he reof , on acc ount of this retroac tive promotion; provided, howeve r, that def endant sha ll pay : (I ) both the ag ency ’s and the pla intiff’s mandator y contributions that are attributable to plaintiff’s r einstatement a nd retroa ctive promotion, including , but not lim ited to, Social Security , the Fe dera l Employ ees Retire ment Sy stem, medicar e, and the Thrift Saving s Plan, and (ii) all “br eaka g e,” a s defined in 5 C.F.R. § 1605.1(b), a ssociated with plaintiff’ s Thrift Saving s Plan acc ount, as deter

mined by the Fe dera l Retirement Thrift

All refe renc es to the United States Code a re to the e lectronic versions in Westlaw or 1 L exis

. 2Investment Boa rd. De fenda

nt shall also take all other steps nece ssary on defe ndant’s par

t to enable plaintiff to r etire f rom the fede ral ser

vice with plaintiff’ s leng th of servic e at the grade GS-15 step 10 level, mea sured f

rom Octobe r 20, 2005. These steps shall include, but ar e not limited to, ini tiation of the proce ss of re- coding plaintiff’s employ

ment data to ef

fec tuate her

reinstateme nt and retroa ctive promotion. [#48] at 3. 6. On Novembe r 20, 2009, def endant’ s counsel notified plaintiff’ s counsel that the a ctual cost of mandatory

contributions nece ssary

to fund plaintiff’s incr ease d retire ment benef its

was a ctually

$99,550.26, and plaintiff r ece ived a lump some pay ment for $51,449.74 on November

27, 2009. [#50] at 4-5. 7. On Dec ember

8, 2009, plaintiff’s counse l rec eived a n email from de fenda

nt’s counsel stating that the “fina l cost calc ulation was conse rvative ( and the f inal cost amount was actua lly more than $99,000) . Howeve r, the L ibrary authorized pay

ment of the $51,449.74 [and plaintiff] wil l rec eive no r eduction in the agree d-upon bene fits as a re sult of the g reater c ost to the library .” I d. at 5 (interna l citation removed)

. 8. On May

24, 2010, plaintiff’s counse l was informe d by defe ndant’s counse l that the final cost was in fa ct $132,178.25. I d. 9. Plaintiff first rec eived a n incre ase in he r F ERS benefit in 2010. I d. 10. Plaintiff rec eived W-2 for ms for year s 2006-2009 that re flec ted Social Secur ity and Medica re inc ome and withholding s consistent with the settlement agree ment, except for the y ear 2009 W-2, which was slightly less than the amount that should have been repor ted. I d. at 5-6. 11. On May

24, 2010, counsel for

defe ndant informed pla intiff that defe ndant had pa id the

3require d Social Security contributions. I d. at 6. 12. On J uly

15, 2010, defe ndant provided a decla ration showingthat it had made pa y ments for the year s 2006 throug h 2009 to “FE RS, [ medicar e], [ Old Ag e, Survivors, and Disability Insuranc e], [ and Thrif

t Savings Plan].” I d. at 6 (interna l quotation removed). 13. When the Social Security Administration (“SSA”) per formed its annua l rec alculation of plaintiff’s Social Secur ity benef it, however , she re ceive d a substantially smaller bene fit than she should have . I d. 14. In November , 2010, the SSA provided to documentation to the plaintiff that showe d that defe ndant re ported $82,057.60 in wa g es for plaintiff in 2009, but no wag es for the y ear s 2006-2008. I d. 15. On J anuar

y 7, 2011, plaintiff filed a

reque st for re consideration of her be nefit, which w as denied. I d. 16. On April 8, 2011, plaintiff subseque ntly filed a r equest for

a hea ringof her

claim bef

ore an administrative law

judge , which is curr ently pending . I d. 17. The SSA subsequently issued a Notice of Chang e of be nefits for pla intiff informingher that she would re ceive an additional bene fit increa se beg inning in May , 2011, as we ll as a lump sum pay

ment to make the incr ease retroa ctive to J une, 2007. I d. at 7. 18. On Marc h 7, 2011, counsel for plaintiff sent a le tter to defe ndant re questingthat it comply with the terms of the se ttlement with reg ards to the Social Sec urity related obliga

tions and on April 25, 2011, counsel f or def endant r eplied, statingthat it believed that it could not repor t plaintiff’s 2006-2009 wa g es as Social Sec urity income. I d. 19. Counsel for plaintiff r equeste d clar ification of de fenda nt’s position i n light of the W-2

4forms plaintiff ha d rec eived a nd the dec laration provided by defe ndant statingthat it had made c ontributions to, among other things, Social Sec urity , and to justify the deduc tions it made from the lump sum pay ment. I d. at 8. 20. On J uly

10, 2011, defe ndant’s counse l informed plaintiff’ s counsel that def endant ha d likely deducte d too much from the lump sum pay ment and would provide a re vised calc ulation. I d. 21. On J uly

14, 2011, the SSA provided plaintiff with additional documentation showing that she re ceive d the maxim um benef it for 2006 and 2007, but that ther e wa s no income repor ted by defe ndant for 2008, a

nd her 2009 w ag es we re still reporte d at an amount slightly lower tha n the amount pursuant to the se ttlement. I d. 22. On August 2, 2011, instead of a r evised c alculation, def endant se nt plaintiff a re quest that she re mit $33,627.99, withoutany calc ulation in support of the reque st, and stated that: “The amount due is the over pay ment due to the administrative e rror when e nteringthe amount of the settlement a g ree ment.” I d. (interna l quotation removed). 23. On August 15, 2011, defenda nt provided plaintiff with the re vised ca lculations and took the position that itshould not have paid $46,593.14 in Social Secur ity contributions. I d. Def endant state d that as a r esult, the total cost of plaintiff’s be nefits should have be en $85,585.81 not $132,177.95, and additionally , the lump pay ment should have be en $64,415.19, not $51,449.74. I d. at 11. 24. Def

endant c hara cter ized the lump sum pay ment as bac k pay

and said that it had to pay Social Security

taxes on itto the tune of $7,987.48. I d. 25. Def

endant state d that it would pay those taxes, disburse to plaintiff $4,997.97, which it

5believes w as still owed to plaintiff, and would withdra w its request for

pay ment of $33,627.99 if plaintiff ac cepte d these re vised ca lculations. I d. The Par ties’ C ontentions Plaintiff now moves to reope n the ca se and to e nforc e the stipulation of settlement by compellingdefe ndant to (1) make all Social Security repor ting a nd contributions for the year s 2006 throug h 2009, and, to the extent that reportingto the SSA pursuant to the settlement cannot be made in part or in full, compe nsate plaintiff in a n amount equivalent to her expected lifetime Social Security

benef it increa se re sulting fr om the retroa ctive promotion and re instatement; 2) produce documentation showingthe amounts it has expended in connec tion with the retroac tive promotion and reinstate ment; 3) pay plaintiff the sum of $17,430, plus interest, a s compensation for the unr easona

ble delay s that she has e x perie nced in se curingher inc rea sed F ERS benefit; and 2 4) withdraw

its noti ce to plaintiff to r emit the amount of $33,627.99. [#50] at 1-2. Def endant, c oncedingas it must, that itagree d that this Court shoul d reta in jurisdiction to enforc e the ter

ms of the settlement agree ment submits t hat the Court solely has jurisdiction to deter mine the meaningof the ter m “mandator

y contributions” in the settlement agree ment as to Social Security

contributions. Defe ndant’s Response to Plaintiff’s Motion to Reopen and to Enforc e the Stipulation of Settlement and Dismissal [ #55] at 1. The defe ndant there fore asks that the Court rule on the me aningof that term but dismiss the case “ to the extent plainti ff se eks damag es and othe r monetar y relief .” I d. at 11.

Plaintiff asserts that she did not re ceive an incr ease in her F ERS benefit until October 2 2010, near ly

11 months after the settlement was sig ned. As a result, plaintiff fur

ther a sserts that defe ndant’s dela

y s in effe ctuatingthe bene fit increa se ca used plaintiff losses of $1,245 pe r month, for total losses of $17,430 (plus intere st) measure d from August 1, 2009, her re tirement date unde r the settlement. [#50] at 15. 6Analysis

Under the Tucke r Ac t, claims for damag es ag ainst the United States in excess of $10,000, upon any express or implied contrac t with the United States, are under the exclusive jurisdiction of the Court of F eder al Claims. 28 U.S.C . §§ 1346(a) (2), 1491( a)( 1). A de cision by the Fe dera l Circuit has now made it clear beyond question that the Court of Fe dera l Claims has jurisdi ction to enterta in a claim alleg ing a brea ch of a

Title VI Isettlement agree ment. Holmes v. United States, 657 F.3d 1303, 1312 (F ed. Cir. 2011). As that c ourt noted, the c ourt of appe als for this circ uit certa inly

ag ree s. I d. (citingGre enhill v. Spellings, 482 F.3d 569, 575 ( D.C. Cir. 2007)); Hansson v. Nor

ton, 411 F.3d 231, 232, 237 (D .C. Cir. 2005). Accor d: Rochon v. Gonzales, 438 F.3d 1211, 1214 ( D.C. Cir. 2006); Allen v. Napolitano, 774 F . Supp. 2d 186, 196 (D.D.C. 2011). Ancillary jurisdiction over a c laim over whic h the cour t lacks jurisdiction is to be exercised “ to enable a

court to func tion successfully , that is, to manag e its proce eding s, vindicate its authority , and ef

fec tuate its decr ees.” Kokkonen v. Gua rdian L ife Ins. Co., 511 U.S. 375, 379- 80 (1994). See Rochon v. Gonzalez, 438 F.3d at 1215 (e ven if primar y thrust of claim is in contra ct, district court may asser t ancillary jurisdiction over it if the claims ar e in var y ing r espec ts and degree s fac tually

interdepe ndent). The settlement agree ment here included a c lause that stated, in part, “ that the Court shall retain jurisdiction to enfor ce the terms of this Stipul ation.” [#48] at 5. The Court of A ppeals for this circuit has ruled that when “the parties’ obligation to comply with the terms of the se ttlement agree ment [i s] part of the orde r of dismissal-either by separ ate pr ovision . . . or by incorpora

ting the te rms of the a g ree ment in the order [; ] a breac h of the agree ment would be a violation of the order , and anc illary jurisdiction to enforce the

7agree ment would there fore exis t.” Shaffe r v. Ve neman, 325 F .3d 370, 374 (D.C. Cir. 2003). The

defe ndant under standably conce des this Court’s jurisdiction to enforce the settlement agree ment but balks at its awar ding a ny monetary damag es. The Court, howe ver, should exerc ise anc illary jurisdiction “to permit disposit ion by a sing le cour

t of claims that ar e, in var ying r espec ts and degree s, fac tually

interdepe ndent.” Kokkone n, 511 U.S. at 379. Surely , plaintiff’s cla ims, insofar as they seek a ffirmative relief

, are fac tually

interdepe ndent with her c laims for dama g es. Def endant c ites Fra

nklin-Mason v. Penn, 616 F. Supp. 2d 97 (D.D .C. 2009), in support of its argument that this Court does not have jurisdiction over this matter, at least with reg ards to plaintiff’s re quest for $17,430. [#55] at 1. In Fr anklin-Mason, the district c ourt reje cted the plaintiff’s cla im of ancillary jurisdiction to enforce a settlement a g ree ment. I d. at 101. In that

case , the cour

t found that it lacked the ability to exercise anc illary

jurisdiction because the plaintiff had a lso filed a sepa rate action, which e ncompassed a ll of the ac tions relatingto her attempt to enforc e the se ttlement, and not beca use the jurisdiction did not ex ist. I d. In the instant

case , plaintiff has not made any other filing s besides the pre sent motion to reopen the c ase a nd enfor ce the terms of the se ttlement. As such, anc illary jurisdiction is appropriate. A s the court indicated in F ranklin-Ma son: “[t] his court has no ne ed to exercise a ncillary jurisdiction over her brea ch cla im to vindi cate its authority or ef fec tuate its decr ees.” I d. at 101. Her e, as de fenda nt has to conc ede, the Court must ex erc ise jurisdiction to enforc e its decr ee a nd it is equally leg itimate to ex erc ise anc illary jurisdiction over fa ctually interdepe ndent claims that would otherwise f

all within the jurisdiction of the Claims C ourt. Acc ording ly , the Court will ex erc ise jurisdiction over the e ntire motion to reopen a nd the parties sha ll now turn to the merits of the contr oversy . 8They shall meet and c onfer

in person to see if they

can a rrive at a joint sti pulation that there is no ge nuine issue as to the fa cts set out in para g raphs 1 to 25 of this Opinion. I f they agree they

will attach to the joint stipul ation a stateme nt that the parties a re a g ree d that the Court may resolve this matter a s a matter of law. I f they

disag ree and one or

both of them believe that there are g enuine issues of f act, e ither side shall file a statement spec ifying those issues and the need f or any discovery

befor e the c ourt may

proce ed. A status ca ll will foll ow these submissi ons. A sepa rate Orde r ac companies this Memora ndum Opinion.

___________________________________________ J OHN M. F ACCI OLA UNI TED STATES MAGI STRATE J UDGE

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