Spriggs v. Wilson

• Decision Date: 27 July 1972
• Docket Number: No. 24719.,24719.
• Citation: 467 F.2d 382,151 US App. DC 328
• Parties: Harold A. SPRIGGS, On Behalf of Himself and All Others Similarly Situated, Appellant, v. Jerry V. WILSON, Chief of Police, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

151 US App. DC 328, 467 F.2d 382 (1972)

Harold A. SPRIGGS, On Behalf of Himself and All Others Similarly Situated, Appellant, v. Jerry V. WILSON, Chief of Police, et al.

No. 24719.

United States Court of Appeals, District of Columbia Circuit.

Argued February 29, 1972.

Decided July 27, 1972.

Mr. Norman Lefstein, Washington, D. C., with whom Mr. Joseph Paull, Washington, D. C. (both appointed by the District Court), was on the brief, for appellant.

Mr. Charles H. Roistacher, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and Mrs. Ellen Lee Park, Asst. U. S. Attys., were on the brief, for appellee. Mr. Harold H. Titus, Jr., U. S. Atty., also entered an appearance for appellee.

Before FAHY, Senior Circuit Judge, and TAMM and MacKINNON, Circuit Judges.

MacKINNON, Circuit Judge:

This appeal seeks reversal of an order of the District Court dismissing appellant's complaint for a class action declaratory judgment concerning various aspects of the police lineup procedures in the District of Columbia. Specifically, the complaint was brought on behalf of appellant Spriggs and "all suspects in criminal cases in the District of Columbia who have been required in the past or who will be ordered in the future to appear in lineups conducted by the Metropolitan Police." Appellant's Reply Brief, at 12. The relief sought was declarations: (1) That no defendant can be required to appear in a lineup for a crime for which he has not been charged, or, alternatively, that such an appearance can only be ordered upon the Government's presentation of facts establishing that the modus operandi of the second, alleged, crime is similar to that of the crime for which the defendant was initially charged; (2) That prior to any lineup the Government must disclose to defense counsel the names and addresses of all witnesses who are scheduled to view the lineup, and provide counsel with all descriptions of suspects which witnesses have given to the police; and (3) That court reporters record all comments of counsel, police officials and witnesses as the lineup is prepared and conducted, and that transcripts of such proceedings be made available to indigent criminal defendants. For the reasons we detail below, we find that the District Court's dismissal of this complaint was proper.

I

The facts here are not particularly relevant to our disposition of this appeal, but a very brief summary of the procedural history of the case is necessary for understanding the contentions of the parties. Appellant was arrested on robbery charges in July, 1969 and was released on bond in August. He was subsequently ordered to appear in a lineup scheduled for October 14, 1969 at which witnesses to a robbery similar to the one he was charged with perpetrating would attend.¹ He filed this action on October 10, 1969 seeking injunctive as well as declaratory relief, and he asked that the October 14 lineup be temporarily restrained pending the outcome of the suit. Temporary relief was denied by the District Court and a motion to stay the lineup was similarly denied by this court.² However the witnesses failed to show up on the scheduled date, with the ultimate result that appellant never appeared at any subsequent lineup.³

Following these events, appellant amended his complaint on December 12, 1969 by omitting his request for an injunction and adding one further request to his prayer for declaratory relief. The Government responded on December 16 with a motion to dismiss, arguing principally that since appellant had not been required to appear in any lineup the case was moot. Appellant filed an opposition to the dismissal motion on February 6, 1970 in which he contested the Government's mootness contentions and requested class action certification of the case pursuant to Fed.R.Civ.P. 23(c)(1).⁴ The Government, on February 27, opposed certification of the case as a class action primarily on the ground that appellant was not then a member of the class he sought to represent.

At the June 24, 1970 hearing on the Government's dismissal motion the trial judge questioned the propriety of the declaratory judgment procedure for resolution of appellant's asserted complaints concerning the conduct of police lineups in the District. In response to this line of inquiry appellant filed a supplemental memorandum on June 29 in which he argued that his case was proper both for declaratory relief and for class action status. On July 6, 1970 the District Court dismissed the case. However, upon reconsideration at the request of appellant he acknowledged that he had misunderstood one aspect of the case. Nevertheless, on July 31 he restated his grounds for dismissal in slightly altered terms and denied appellant's motion for reconsideration. The essence of his holding is as follows:

Declaratory relief should be granted when the court in its discretion finds it appropriate. Public Service Commission of Utah v. Wycoff, 344 U.S. 237 239, 241-243 73 S.Ct. 236, 97 L.Ed. 291 (1952). In the circumstances of this case, a motion to suppress in a criminal prosecution will adequately safeguard the rights of persons charged with crime, and will lead to a determination as to the constitutionality of the procedures employed by the Government to which plaintiff objects.

In neither the July 6 nor the July 31 order did he discuss or rule upon the class action or mootness questions. This appeal followed.

II

The failure of the District Court to explicitly determine the questions of mootness and class action status has led to some confusion on this appeal, and to disagreement among the members of the panel. We are unanimous in our conclusion that dismissal was proper, but each of us arrives at that conclusion through a slightly different path. The principal issues, the contentions of the parties, and our conclusions on each, are as indicated below.

A. Mootness

The Government argues on this appeal that the failure of the District Court to designate the case as a class action pursuant to Rule 23(c)(1), or to provide for notification of such a class upon dismissal under Rule 23(e),⁵ necessarily implies that he denied, sub silentio, class action status to the case. Therefore, according to the Government's position, since appellant as an individual plaintiff is no longer threatened with any possibility of being required to appear in a lineup the case is moot and the dismissal can be supported on that ground. While not conceding that the court denied class status to his complaint, appellant contends that even if he were viewed solely as an individual plaintiff his case falls within a recognized exception to the mootness doctrine by presenting for resolution issues of public importance that constantly recur⁶ in the biweekly police lineups conducted in the District.

We reject the appellant's contention that his case fits within this exception. In each of the cases establishing the exception the parties alleged, in addition to the likelihood of recurrence of the issues raised, that they would themselves be affected by the subsequent recurrence of the events raising those issues. Since appellant was acquitted of all charges that were not dismissed by the Government, he cannot again be placed in the position of one facing a lineup without first giving the Government probable cause to issue new charges against him. We are agreed that as to him, the case is, simply, moot. We do not, however, accept the Government contention that the District Court did (or that it properly could) deny class status to the case sub silentio.

B. Class Action Status

Appellant has asserted that his case meets the requirements of Rule 23(a),⁷ and that the Government's published procedures for conducting lineups, which do not provide for the steps requested in this suit, bring the case within the provisions of Rule 23(b)(2).⁸ The Government did not brief this point on appeal, but before the District Court they argued that since the case was moot as to appellant he was no longer a member of the class which he seeks to represent here; therefore the case cannot be maintained as a class action.⁹ Appellant responds to this contention that when an individual plaintiff was a member of the class at the time the suit was initiated, subsequent events making the case moot as to that individual do not affect the justiciability of the case for the remainder of the class nor do those events deprive the suit of its class-action status.¹⁰

The panel is divided on this issue. Judge Tamm would hold that the common bond of membership in the putative class is an essential requisite to class-action status, and that since the case is moot as to appellant it cannot be maintained as a class action. Judge Fahy would follow those cases holding that, having been a member of the class at the outset, the subsequent mooting of the appellant's individual claim does not operate to destroy the class status of the action. I believe that in the peculiar posture of this case and the grounds on which the District Court based its dismissal, it was unnecessary for him, and it is unnecessary for us, to determine this question.

The only operative difference between finding or not finding the case to be maintainable as a class action is the scope of the res judicata effect of the District Court's judgment. If the case is not a class action, only appellant will be formally bound by the District Court's judgment; if it is properly a class determination then all members of the class are bound. The dismissal of the action as an exercise of the District Court's discretion to grant or deny declaratory relief makes this distinction chimerical at best. If class status were denied, any member of the class could bring another individual action for declaratory relief and, if he presented factual circumstances and claims more convincing than those presented by appellant here, the District Court would be free...