Culver v. City of Milwaukee

• Decision Date: 15 January 2002
• Docket Number: No. 01-1555,01-1555
• Parties: (7th Cir. 2002) Scott Culver, Plaintiff-Appellant, v. City of Milwaukee, et al., Defendants-Appellees, and United States of America, Defendant-Intervenor-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 908

277 F.3d 908 (7th Cir. 2002)

Scott Culver, Plaintiff-Appellant, v. City of Milwaukee, et al., Defendants-Appellees, and United States of America, Defendant-Intervenor-Appellee.

No. 01-1555

United States Court of Appeals For the Seventh Circuit

Argued November 5, 2001

Decided January 15, 2002

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 93 C 189--Lynn Adelman, Judge.

Before Bauer, Posner, and Ripple, Circuit Judges.

Posner, Circuit Judge.

A class action suit was brought on behalf of white males who claimed to have been discriminated against in hiring by the Milwaukee police department. The district court granted the defendants' motion to decertify the class and having done so dismissed the suit because the class representative's own claim was conceded to be moot. A properly certified class action survives the mootness of the original representative's claims, but an individual action must be dismissed in identical circumstances, Nelson v. Murphy, 44 F.3d 497, 500 (7th Cir. 1995); Lusardi v. Xerox Corp., 975 F.2d 964, 974-75 (3d Cir. 1992), and this suit became an individual action when the class was decertified. The would-be class representative has standing to appeal, however, United States Parole Commission v. Geraghty, 445 U.S. 388, 404 (1980), as otherwise the defendant in a class action suit could delay appeals indefinitely by buying off successive class representatives. Cf. Parks v. Pavkovic, 753 F.2d 1397, 1403 (7th Cir. 1985); Susman v. Lincoln American Corp., 587 F.2d 866, 870 (7th Cir. 1978); Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1051 (5th Cir. 1981).

The suit was filed in 1993. Culver, the plaintiff and class representative, claimed that the previous year he had re quested from the Milwaukee police department an application for employment as a police officer and had been told he could not have one because the department would not be accepting applications from white males until 1994. He sought to certify a class consisting not only of other white males whose requests for job applications had been turned down but also white males who had somehow succeeded in applying but had not been hired because the department had changed the scores on the entrance exams to favor women and members of minority groups. The district court certified this broad class in 1995. Six years later, a different district judge, to whom the case had been reassigned, granted the City's motion to decertify the class on the ground that the class was improper and Culver not an adequate representative of any subclass that might be carved out of it. The judge then dismissed the suit, as we said, because Culver's claim was moot.

The class action is an awkward device, requiring careful judicial supervision, because the fate of the class members is to a considerable extent in the hands of a single plaintiff (or handful of plaintiffs, when, as is not the case here, there is more than one class representative) whom the other members of the class may not know and who may not be able or willing to be an adequate fiduciary of their interests. Often the class representative has a merely nominal stake (Culver has no stake), and the real plaintiff in interest is then the lawyer for the class, who may have interests that diverge from those of the class members. The lawyer for the class is not hired by the members of the class and his fee will be determined by the court rather than by contract with paying clients. The cases have remarked the dan ger that the lawyer will sell out the class in exchange for the defendant's tacit agreement not to challenge the lawyer's fee request. Blair v. Equifax Check Services, Inc., 181 F.3d 832, 839 (7th Cir. 1999); Mars Steel Corp. v. Continental Illinois National Bank & Trust Co., 834 F.2d 677, 681 (7th Cir. 1987); In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 801-05 (3d Cir. 1995); Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 524 (1st Cir. 1991).

Rule 23 tries to minimize the potential abuses of the class action device in two principal ways, first by insisting that the class be reasonably homogeneous, Fed. R. Civ. P. 23(a)(2); Sosna v. Iowa, 419 U.S. 393, 403 n. 13 (1975), and second by insisting that the class representative be shown to be an adequate representative of the class. Fed R. Civ. P. 23(a)(3); Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625-26 and n. 20 (1997); Harriston v. Chicago Tribune Co., 992 F.2d 697, 704 (7th Cir. 1993); cf. In re American Medical Systems, Inc., 75 F.3d 1069, 1083 (6th Cir. 1996). These are often and here related controls because if the class is heterogeneous, the representative is unlikely to be able to offer representation to all members, Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir. 1999), in much the same way that if a collective bargaining unit is heterogeneous, a union will not be able to offer representation to all members free of any conflict of interest, and so a unit may not be certified for collective bargaining purposes unless the members have a "community of interest." Continental Web Press, Inc. v. NLRB, 742 F.2d 1087, 1089- 90 (7th Cir. 1984). One is not surprised, therefore, that the Supreme Court has disapproved the "across the board" class action, that is, a class action in which the class representative has suffered a different kind of injury from other members of the class. General Telephone Co. v. Falcon, 457 U.S. 147, 157-59 (1982). And Falcon was a discrimination case, like this one.

The class that was originally certified in this case and has now been decertified was heterogeneous. Would-be Milwaukee police officers who never received a job- application form to fill out are very differently situated from those who received and completed the form and took the entrance test but were not hired because the test was scored in a discriminatory fashion. The members of the first set are more difficult to identify than the members of the second, since the City has no record of persons who request but are not sent application forms. Also unlike members of the second set, members of the first, to have any sort of claim for which relief could be granted, would have to prove that they had the minimum qualifications to be hired. But--and this is still a third difference--the members of the first set, unlike the members of the second, would not have to prove that the entrance exams were scored in a discriminatory fashion, because their complaint is that they were not even considered for employment.

These differences show that as the district judge directed, the previously certified class had to be divided into two classes, Fed. R. Civ. P. 23(c)(4)(B); Ortiz v. Fibreboard Corp., 527 U.S. 815, 856 (1999); Williams v. Chartwell Financial Services, Ltd., 204 F.3d 748, 760 (7th Cir. 2000), especially since Culver, the class representative, is not, and cannot be (because the classes are mutually exclusive), a member of both. He is a member of the first, and so it would be passing strange for him (and a violation of the rule of Falcon, rejecting "across the board" classes) to be considered an adequate representative of members of the second. Gilchrist v. Bolger, 89 F.R.D. 402, 408 (S.D. Ga. 1981), aff'd (on this point), 733 F.2d 1551, 1555 (11th Cir. 1984); Vuyanich v. Republic National Bank, 82 F.R.D. 420, 434-35 (N.D. Tex. 1979). (These cases so held before the Supreme Court in Falcon wiped out the Fifth Circuit's favorable policy toward "across the board" classes.) For that would require him to get into issues, such as the scoring system used by the Milwaukee police department, that are inapplicable to his own situation. See Rutherford v. City of Cleveland, 137 F.3d 905, 909-10 (6th Cir. 1998). Another route to the same conclusion is that Culver's claim is not typical of the claims of the entire class, as Rule 23 also requires. Fed. R. Civ. P. 23(a)(3); Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 597 (7th Cir. 1993); Castro v. Beecher, 459 F.2d 725, 732 (1st Cir. 1972).

Of course, the fact that a class is overbroad and should be divided into subclasses is not in itself a reason for refusing to certify the case as a class action. Williams v. Chartwell Financial Services, Ltd., supra, 204 F.3d at 760; In re Brand Name Prescription Drugs Antitrust Litigation, 115 F.3d 456, 457- 58 (7th Cir. 1997); Boucher v. Syracuse University, 164 F.3d 113, 119 (2d Cir. 1999). Culver might (in principle, though not in actuality, as we're about to see) be an adequate representative of the subclass to which he belongs, and the lawyer for the class might be able to interest a member of the other subclass in becoming the representative of that subclass. Kremens v. Bartley, 431 U.S. 119, 134-35 (1977); In re Brand Name Prescription Drugs Antitrust Litigation, supra, 115 F.3d at 457-58; Johnson v. American Credit Co., 581 F.2d 526, 532-33 and n. 13 (5th Cir. 1978). But the lawyer has not tried to do that; she insists that the class not be divided.

The district judge was justifiably skeptical of Culver's adequacy to represent even his own subclass. Culver made only perfunctory efforts back in 1993 to obtain a job application, and shortly afterwards he obtained another job, with which he is content. Having thus no interest in injunctive relief and not seeking damages either (he admits that his claim is moot), Culver not surprisingly has pursued the suit in a most lackadaisical manner. In the eight years that it has been pending, he has yet to identify any other members of either the larger class or his subclass. He has done nothing to move the case forward except file a flurry of frivolous motions to recuse the various district judges who have succeeded each other in the unrewarding task of shepherding this case. The least frivolous ground, though still frivolous, is that the current district judge's former law...