Alliance to End Repression v. Rochford

• Citation: 565 F.2d 975
• Decision Date: 22 November 1977
• Docket Number: Nos. 77-1680 and 77-1679,s. 77-1680 and 77-1679
• Parties: ALLIANCE TO END REPRESSION et al., Plaintiffs-Appellees, v. James M. ROCHFORD, etc., et al., Defendants-Appellants. AMERICAN CIVIL LIBERTIES UNION et al., Plaintiffs-Appellees, v. Griffin B. BELL et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 975

565 F.2d 975

ALLIANCE TO END REPRESSION et al., Plaintiffs-Appellees, v. James M. ROCHFORD, etc., et al., Defendants-Appellants.

AMERICAN CIVIL LIBERTIES UNION et al., Plaintiffs-Appellees, v. Griffin B. BELL et al., Defendants-Appellants.

Nos. 77-1680 and 77-1679.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 30, 1977.

Decided Nov. 22, 1977.

Thomas P. Sullivan, U. S. Atty., Chicago, Ill., Robert E. Kopp, Jonathan B. Smith, Attys., Dept. of Justice, Washington, D. C., William R. Quinlan, Corp. Counsel, Jerome A. Siegan, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellants.

Robert J. Vollen, Richard M. Gutman, Robert C. Howard, Chicago, Ill., for plaintiffs-appellees.

Before SWYGERT and SPRECHER, Circuit Judges, and CROWLEY, District judge. ^*

SPRECHER, Circuit Judge.

The only issue raised in this interlocutory appeal is whether the district court abused its discretion in certifying the plaintiffs' suits as class actions under Rule 23 of the Federal Rules of Civil Procedure.

I

This is a consolidated appeal of two class certification decisions by the same district court in separate, but quite similar, law suits. In both cases the plaintiffs are various individuals and organizations that claim that they, and others like them, have been the subjects of an institutionalized course and pattern of unconstitutional conduct ¹ by the defendants, various city and federal investigative or intelligence-gathering agencies and their employees. Plaintiffs seek declaratory and injunctive relief against this allegedly unconstitutional course of conduct. ²

Both suits have withstood motions to dismiss and both have been certified by the district court as class actions under subsections (b)(1)(A) and (b)(2) of Rule 23 of the Federal Rules. There are two classes of plaintiffs defined in each suit, and their definitions, with minor variations not relevant here, are as follows:

1. Plaintiff individuals.

The class represented by plaintiff individuals consists of all residents of the City of Chicago, and all other persons who are physically present within the City of Chicago for regular or irregular periods of time, who engage or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have been within the last five years, are now, or hereafter may be, subjected to or threatened by alleged infiltration, physical or verbal coercion, photographic, electronic, or physical surveillance, summary punishment, harassment, or dossier collection, maintenance, and dissemination by defendants or their agents.

2. Plaintiff Organizations.

The class represented by plaintiff organizations consists of all organizations located or operating in the City of Chicago who engage or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have been within the last five years, are now, or hereafter may be, subjected to or threatened by alleged infiltration, physical or verbal coercion, photographic, electronic, or physical surveillance, summary punishment, harassment, or dossier collection, maintenance, and dissemination by defendants or their agents.

The defendants in both cases moved the district court to reconsider its class certification order or alternatively to certify its order for appeal under 28 U.S.C. § 1292(b). ³ The district court denied the defendants' motions to reconsider, but granted the defendants' motions to certify the orders for appeal. Defendants filed petitions for permission to file an interlocutory appeal which this court granted. Thus, this court properly has jurisdiction over this appeal under section 1292(b).

II

In order for a suit to be certified as a class action in a federal court, it must satisfy all four of the requirements set out in Rule 23(a) ⁴ of the Federal Rules of Civil Procedure and, in addition, it must satisfy one of the conditions of Rule 23(b). ⁵ In reviewing a district court's decision to certify a particular class, our review is limited to whether there has been an abuse of discretion. Crockett v. Green, 534 F.2d 715, 718 (7th Cir. 1976); King v. Kansas City S. Indus., Inc., 519 F.2d 20, 25 (7th Cir. 1975). Also, we must be mindful that the district court has the power at any time before final judgment to revoke or alter class certification if it appears that the suit cannot proceed consistent with Rule 23's requirements. Fed.R.Civ.P. 23(c)(1); Walsh v. City of Detroit, 412 F.2d 226 (6th Cir. 1969); Kristiansen v. John Mullins & Sons, Inc., 59 F.R.D. 99 (E.D.N.Y.1973). Defendants argue that the district court has already abused its discretion in certifying these suits as class actions because they allegedly violate the requirements of Rule 23 in several respects. Since we disagree with each of defendants' contentions, we affirm the district court's order certifying these classes.

Defendants initially argue that the district court's description of the classes of plaintiffs is too vague to define any ascertainable class. While there is nothing explicit in Rule 23 regarding this contention, many courts have held that there is a "definiteness" requirement implied in Rule 23(a). ⁶ See, e. g., DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970); Ihrke v. Northern States Power Co., 459 F.2d 566, 572 (8th Cir.), vacated as moot, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72 (1972); Metcalf v. Edelman, 64 F.R.D. 407, 409-10 (N.D.Ill.1974); Chaffee v. Johnson, 229 F.Supp. 445, 448 (S.D.Miss.1964), aff'd 352 F.2d 514 (5th Cir. 1965) (per curiam). We do not disagree with that conclusion of law. However, whether the description of a class is sufficiently definite to permit ascertainment of the class members must, of necessity, be determined on a case-by-case basis. We hold that the classes described by the district court are sufficiently clear to satisfy any definiteness requirement of Rule 23.

The important distinguishing characteristic of these two classes is that their scope is defined by the activities of the defendants. They include only those individuals and organizations operating in Chicago that have been subjected to the alleged pattern of unconstitutional harassment by the defendants. This fact alone distinguishes all of the cases cited by defendants, places this case squarely within this court's previous holding in Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (7th Cir. 1976), modified in part on rehearing en banc, 548 F.2d 715 (7th Cir. 1977) (equally divided court), and creates the most compelling policy argument for certifying this class.

In those cases in which class certification has been denied on account of indefiniteness, the primary defect in the class definition has been that membership in the class was contingent on the state of mind of the prospective class members. See, e. g., DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970); Vietnam Veterans Against the War v. Benecke, 63 F.R.D. 675, 679-80 (W.D.Mo.1974); Eisman v. Pan American World Airlines, 336 F.Supp. 543, 547 (E.D.Pa.1971). In Chaffee v. Johnson, 229 F.Supp. 445 (S.D.Miss.1964), aff'd, 352 F.2d 514 (5th Cir. 1965) (per curiam), the purported class included "workers for the end of discrimination and segregation in Mississippi, for the encouragement of the exercise by Negroes in Mississippi of their right to vote . . . and for the exercise and preservation of civil rights generally in Mississippi." Id. at 448. The court concluded:

The vague and indefinite description of the purported class depends upon the state of mind of a particular individual, rendering it difficult, if not impossible, to determine whether any given individual is within or without the alleged class.

Id. ⁷

In our case membership in the classes certified by the district court is based exclusively on the defendants' conduct with no particular state of mind required. Thus, there is no definiteness problem, as read into Rule 23 by other courts, created by these classes.

That conclusion is reinforced by this court's holding in Pilliod, supra. There the class at issue consisted of all persons of Spanish surname in the Northern District of Illinois. The plaintiffs alleged that the class had been subjected to a "pattern and practice of harassment." 540 F.2d at 1065. This court held that the class was neither "ill-defined" nor "amorphous" because it "consists of all individuals who by virtue of defendants' policy are likely to be subjected to the illegal conduct." Id. Thus, this court has made it clear that a class that satisfies all of the other requirements of Rule 23 will not be rejected as indefinite when its contours are defined by the defendants' own conduct.

Any other conclusion in this situation would give rise to an extremely incongruous result. To hold as defendants request would permit class action certification to be avoided by a potential defendant merely by expanding the scope of his illegal conduct in order to make the class of plaintiffs less well-defined. We reject any such result by holding that the classes certified by the district court are sufficiently definite to satisfy Rule 23.

III

Defendants contend that there are no common questions of fact or law. It is their view that this suit really involves an aggregation of individual claims, as is often the case in securities law and antitrust suits. See, e. g., Feldman v. Lifton, 64 F.R.D. 539 (S.D.N.Y.1974); Morris v. Burchard, 51 F.R.D. 530 (S.D.N.Y.1971); Kekich v. Travelers Indemnity Co.,64 F.R.D. 660 (W.D.Pa.1974). Defendants argue that the variety of practices complained of (see note 1 supra ) and the variety of constitutional amendments allegedly violated make this suit inappropriate as a class action.

Defendants' arguments ignore the gravamen of plaintiffs' complaint the existence of an unconstitutional pattern and practice of intelligence gathering concerning various law abiding organizations and individuals. It is...