McCarthy v. Kleindienst

• Decision Date: 17 August 1984
• Docket Number: No. 83-1789,83-1789
• Citation: 239 U.S.App.D.C. 247,741 F.2d 1406
• Parties: , 39 Fed.R.Serv.2d 1165 Michael McCARTHY, et al. Arthur Waskow, et al., Appellants, v. Richard G. KLEINDIENST, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1406

741 F.2d 1406

239 U.S.App.D.C. 247, 39 Fed.R.Serv.2d 1165

Michael McCARTHY, et al. Arthur Waskow, et al., Appellants, v. Richard G. KLEINDIENST, et al.

No. 83-1789.

United States Court of Appeals District of Columbia Circuit.

Argued March 13, 1984.

Decided Aug. 17, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 00844-72).

Willard K. Tom, Washington, D.C., with whom Stephen Yale-Loehr, Francis M. Gregory, Jr. and Sheila J. Carpenter, Washington, D.C., were on the brief, for appellants. Michael S. Smith, Washington, D.C., also entered an appearance for appellants.

Richard B. Nettler, Asst. Corp. Counsel, with whom Charles L. Reischel, Deputy Corp. Counsel and Michael E. Zielinski, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellee, District of Columbia.

David H. White, Atty., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Joseph diGenova, U.S. Atty. and Barbara L. Herwig, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees, Kleindienst, et al.

Before TAMM, MIKVA and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

Opinion concurring in part and dissenting in part filed by Circuit Judge MIKVA.

STARR, Circuit Judge:

This case arises out of the 1971 "May Day" demonstrations throughout Washington, D.C. in protest against the Vietnam War. The principal, and ultimately dispositive, question presented by this appeal is whether the District Court abused its discretion when it refused to certify this case as a class action. For the reasons that follow, we affirm.

I

This litigation is of some considerable vintage, yet at this late date the questions before us are entirely of a threshold procedural nature. The complaint was filed by thirty-nine named plaintiffs on May 1, 1972, seeking damages on behalf of themselves and at least 7,000 other individuals. The defendants were several federal officials, including then Attorney General John Mitchell and then Deputy Attorney General Richard Kleindienst, the District of Columbia, and several of its officials. The lawsuit challenged the legality of defendants' actions taken in response to "May Day" demonstrators' well-publicized plans to close down the city of Washington on May 3, 1971. According to the complaint, defendants' actions in responding to the "May Day" demonstrations violated the constitutional and common law rights of the named plaintiffs and putative class members.

The gravamen of the complaint was that federal and local law enforcement officials had conspired to engage in illegal tactics to combat the "May Day" demonstrations planned in protest against the Vietnam War. Complaint paragraphs 23, 24. Specifically, the complaint challenged the decision, effective early in the morning of May 3, 1971, of then Police Chief Jerry Wilson, of the Metropolitan Police Department, to suspend field arrest procedures. Those procedures normally required the completion of an arrest form and the taking of a contemporaneous photograph of each arrestee. Id. p 25. Plaintiffs alleged that this suspension of field arrest procedures led to thousands of illegal arrests throughout the city on May 3 by officers of the Metropolitan Police Department and the United States Park Police. Id. p 27. Plaintiffs also alleged that the defendants had used, or were responsible for the use of, excessive force against putative class members. Id. paragraphs 28, 29. Plaintiffs further alleged that members of the putative class had been illegally detained at more than ten places of confinement throughout the city. Id. paragraphs 30, 31. The conditions of confinement obtaining at these locations were also challenged. Id. paragraphs 32-35. Finally, plaintiffs alleged that the defendants had subjected putative class members to "cumbersome processing procedures," such as booking and fingerprinting, and to unfounded criminal prosecutions in order to penalize them for demonstrating against the Nation's Southeast Asian policy. Id. paragraphs 36-41.

These factual allegations translated into a variety of legal causes of action: plaintiffs asserted constitutional claims under the First, Fourth, Fifth, Sixth, and Eighth amendments, in addition to common-law tort claims such as false arrest, malicious prosecution, abuse of process, and conspiracy. Id. paragraphs 1, 2. Most significantly for present purposes, the complaint contained class action allegations. Id. paragraphs 19-23. As previously indicated, the thirty-nine named plaintiffs sought to represent a class consisting of at least 7,000 individuals whose rights were allegedly violated by the federal and local defendants on May 3, 1971. Id. p 20. ¹ To foreshadow the pivotal events to come, we note here in passing that as the litigation comes to us, none of the original named plaintiffs and potential class representatives is still a party in this case.

The defendants filed their respective answers to plaintiffs' complaint in August 1972. After some procedural skirmishing and the taking of limited discovery, certain of the federal defendants, namely Messrs. Mitchell, Kleindeinst and then Assistant Attorney General Will Wilson, moved for summary judgment on the ground that they were absolutely immune from damages lawsuits arising out of actions taken in their official capacities. The District Court granted summary judgment as to these defendants on July 31, 1973, and plaintiffs immediately filed a notice of appeal. On October 12, 1973, the District Court stayed all further proceedings in the case pending appellate resolution of the matter. Approximately three months later, this court issued an unpublished order dismissing the appeal for want of jurisdiction, McCarthy v. Bork, No. 73-2023 (D.C.Cir. Jan. 14, 1974), and the stay of proceedings in the District Court thereupon expired by its own terms.

While the McCarthy plaintiffs were unable to persuade this court to determine whether the federal defendants were shielded by absolute immunity, the plaintiffs in a separate "May Day" case were subsequently able to obtain such a determination in the context of an appeal from a final judgment. In Apton v. Wilson, 506 F.2d 83, 90-95 (D.C.Cir.1974), a case involving several of the federal defendants sued in McCarthy, this court rejected the argument that the federal defendants were protected by absolute immunity, holding instead that they were entitled only to qualified immunity. In light of Apton, the District Court vacated the summary judgment as to the federal defendants in the McCarthy case on July 3, 1975.

On July 25, 1975, over three years after the inception of this lawsuit, the McCarthy plaintiffs moved for certification of a class comprised of all persons arrested and detained in the District of Columbia on May 3, 1971. The District Court issued an order denying class certification on September 11, 1975. Four reasons were advanced by the District Court for its action:

(1) [P]laintiffs' Motion for Certification of a Class was not timely filed, (2) such certification would at this late date further delay the action and necessitate further 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' [sic] arrest and detention preclude class action treatment.

McCarthy v. Kleindienst, C.A. No. 844-72 (D.D.C. Sept. 11, 1975) (reprinted in Joint Appendix, at 133).

Upon the District Court's denial of class certification, 266 individuals ("the Abelman intervenors") promptly sought, but were denied, leave to intervene in the lawsuit. On appeal, this court held that the Abelman intervenors should have been granted leave to intervene and to assert their substantive claims against defendants. McCarthy v. Kleindienst, 562 F.2d 1269, 1271-75 (D.C.Cir.1977). ² The Abelman intervenors also requested that this court determine whether the original plaintiffs' motion for class certification had been wrongly denied, but the court rejected this invitation on the ground that the denial of class certification was not then an appealable order. Id. at 1276.

Meanwhile, the federal defendants had again moved for summary judgment in the District Court, and on May 23, 1979, the court granted this motion. In a memorandum opinion, the District Court held that the federal defendants' actions were within the scope of their qualified immunity. In an alternative holding, the court noted that two of the federal defendants, namely Messrs. Mitchell and Wilson, were also entitled to summary judgment on the ground that plaintiffs had never properly served process upon them.

With the federal defendants out of the case as of 1979, the parties undertook settlement negotiations that ultimately proved successful, resulting in the dismissal of the "May Day" claims of all the original thirty-nine named plaintiffs and all Abelman intervenors. When it became clear that neither the original plaintiffs nor the Abelman intervenors could adequately protect the interests of the putative class, another group of putative class members ("the Waskow intervenors" or "appellants") sought leave to intervene for purposes of appealing the denial of class certification. Although the District Court originally denied leave to intervene, this court subsequently reversed that denial. McCarthy v. Kleindienst, No. 81-1738 (D.C.Cir. July 26, 1982). On June 24, 1983, the District Court on remand entered an order that allowed intervention, but simultaneously dismissed the case. It is thus this latter group of intervenors who are maintaining the instant appeal.

II

The Waskow intervenors challenge the District Court's decision not to certify this case as a class action. Our consideration of this challenge is appropriately undertaken only against the backdrop of a proper understanding of the respective roles of trial and appellate courts in class...