562 F.2d 1269 (D.C. Cir. 1977), 76-1054, McCarthy v. Kleindienst

Docket Nº:76-1054.
Citation:562 F.2d 1269
Party Name:Michael McCARTHY et al. v. Richard G. KLEINDIENST, Acting Attorney General of the United States, et al. [*] Appeal of Mark Samuel ABELMAN et al.
Case Date:August 10, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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562 F.2d 1269 (D.C. Cir. 1977)

Michael McCARTHY et al.


Richard G. KLEINDIENST, Acting Attorney General of the

United States, et al. [*]

Appeal of Mark Samuel ABELMAN et al.

No. 76-1054.

United States Court of Appeals, District of Columbia Circuit

August 10, 1977

Argued Jan. 14, 1977.

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Herbert Dym, Washington, D. C., with whom Dana T. Ackerly was on the brief, for appellants.

Barbara L. Herwig, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief for federal appellees, argued for all appellees.

John R. Risher, Jr., Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, and Leo N. Gorman, Asst. Corp. Counsels, Washington, D. C., at the time the brief was filed, were on the brief for District of Columbia appellees. David P. Sutton, Asst. Corporation Counsel, Washington, D. C., also entered an appearance for the District of Columbia appellees.

Before WRIGHT, TAMM and LEVENTHAL, Circuit Judges.

Opinion for the Court filed by LEVENTHAL, Circuit Judge.

LEVENTHAL, Circuit Judge:

This case involves claims for damages for alleged police misconduct during the "May Day" demonstrations of 1971. The events out of which the lawsuit arises are described in considerable detail in Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 165 (1973), and more briefly in Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974). We refer the reader to those opinions for the factual background of this case.

We are not here asked to deal with the merits of this lawsuit, but with two procedural questions. The first is whether the district court properly denied as untimely

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a motion to intervene filed by 266 plaintiffs immediately after class certification was refused on grounds of untimeliness and nonpredominance of common questions. The second is whether that refusal to certify was correct. Since we conclude that under the Supreme Court's decision in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) the plaintiffs did have a right to intervene with respect to some, and perhaps all, of their claims, we are not required on this appeal to decide the question of class certification.


This lawsuit was filed on May 1, 1972 on behalf of 39 named individuals arrested in Washington on May 3 of the previous year. The named plaintiffs sought injunctive relief and monetary compensation for themselves and for a class consisting of all persons who had been unlawfully arrested or detained on May 3, 1971. The complaint alleged that law enforcement authorities had conspired to use unlawful tactics against the demonstrators assembled in Washington, including the use of indiscriminate arrests, falsified arrest forms, deliberate detention for excessive periods of time and under inhumane conditions, cumbersome and coercive processing and prosecutions undertaken for purposes of harassment. Named as defendants were then Acting Attorney General Richard G. Kleindienst, former Attorney General John N. Mitchell, former Assistant Attorney General Will Wilson, Commissioner of the District of Columbia Walter Washington, Chief of the Metropolitan Police Department Jerry V. Wilson and various other officials of the Justice Department and District of Columbia government.

The federal defendants, asserting an absolute immunity from suit, moved for summary judgment, and on July 31, 1973 their motion was granted. On October 12, 1973, the district court stayed further proceedings pending a ruling by the Court of Appeals on the grant of summary judgment. That appeal was dismissed on January 14, 1974 (No. 73-2023), but the following August this court reversed a similar ruling by Judge Pratt in a related "May Day" case. Apton v. Wilson, supra. Relying on this decision, plaintiffs in this lawsuit moved on November 4, 1974, for an order reinstating the federal defendants and that motion was granted on July 2, 1975.

On July 25, 1975 plaintiffs moved to have this action certified as a class action on behalf of all those persons whose arrests were declared presumptively invalid in Sullivan v. Murphy, supra. The district court denied certification by an order dated September 11, 1975. In support of its refusal to certify the district court gave four reasons:

. . . that (1) plaintiffs' Motion for Certification of a Class was not timely filed, (2) such certification would at this late date further delay the action and necessitate massive discovery, (3) this action on the merits does not lend itself to such class action certification and (4) the particularized facts involved in each plaintiffs' arrest and detention preclude class action treatment.

On the day following denial of class certification, 266 named members of the alleged class sought to intervene as plaintiffs. The intervention complaint was identical in all respects to the main complaint in the case except that it did not purport to be on behalf of a class. The district court denied this motion to intervene on November 10, 1975, on the grounds that the motion was "untimely" and that the requested intervention would cause undue delay and prejudice. The 266 former class members appeal both from the denial of intervention and from the refusal to certify the class.


Appellants filed their motion to intervene more than four years after the alleged tortious acts and more than three years after this lawsuit was commenced. The parties appear to agree that the statute of limitations applicable to the tortious acts alleged in appellant's complaint is one year. See 12

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D.C.Code § 301(4). Thus the timeliness of appellants' motion to intervene indeed the viability of their claims depends upon whether the statute of limitations was tolled by the filing of the original complaint on behalf of the entire class.

The critical precedent on this issue is American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). That case involved a private antitrust class action that had been filed 11 days short of the expiration of the statutory limitations period. The trial court later denied class certification because the purported class did not satisfy the numerosity requirement of Rule 23(a)(1). Eight days after entry of that order, a number of the putative class members moved to intervene as plaintiffs. The trial court denied the motions...

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