Amicus Brief — United States Parole Commission v. Geraghty

Supreme Court, U.S.

Fite D

JUL & 1979

ICHAEL RODAK, JR., CLERK

| enn

In THE

Supreme Court of the Anited States

Ocroser TERM, 1978

No. 78-572

UNITED STATES PAROLE COMMISSION, et at.,

Petitioners

v.

JOHN M. GERAGHTY,

Respondent

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF AMICUS CURIAE OF

NATIONAL CLIENT COUNCIL, INC. AND

THE JACKSON, MISSISSIPPI CHAPTER

OF THE GRAY PANTHERS

Rosert J. Hosss

Ricuarp ALPERT

National Consumer Law

Center, Ine.

11 Beacon Street

Boston, Massachusetts 02108

617-523-8010

Attorneys for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE AND STATEMENT

PURSUANT TO RULE 42.2 OF THE RULES OF THE

SUPREME COURT | pe TAY

SUMMARY OF ARGUMENT

ARGUMENT ....... cer ec remnay stnT koe Oe ee

I. ARTICLE III DOES NOT REQUIRE THE REP-

RESENTATIVE IN A SUIT FILED AS A CLASS

ACTION TO MAINTAIN A PERSONAL STAKE

AT ALL TIMES IN ORDER TO APPEAL THE

INITIAL CLASS DENIAL

A. Articte III Justiciasmiry Turns On Con-

CRETENESS OF IssuES AND ADVERSENESS OF IN-

TERESTS RATHER THAN CONTINUED PERSONAL

Stake Or THE NAMED PartTIEs. _.

B. In Proper Ciass Suits, CONCRETENESS OF Is-

SUES AND ADVERSENESS OF INTERESTS ARE PREs-

ENT REGARDLESS OF WHETHER THE REPRESEN-

TATIVE’s Cuamm Is Axuive At THE TIME OF

CERTIFICATION OR WHETHER THE CLAss Was

DENIED OR PROPERLY CERTIFIED.

1. Conereteness Of Issues Is Present Where

The Facts Of The Representative’s Initially

Justiciable Claim Are Sufficiently Similar

To The Absentees’ Factual Circumstances.

2. Adverseness Of Interests Is Present Where

There Is Vigorous Representation Of The

Interests Of Absentees With A Continu-

ing Stake In The Defendant’s eee

Policy. .

3. Article IIT Justiciability Is Not Determined

By Whether Class “Certification” Was

Properly Ordered Or Was Denied. __.

Page

12

14

il

C. THE REPRESENTATIVE IN A Proper Cuiass Suit

Neep Have No Persona STAKE IN THE CLASss

Ciaim To APPEAL THE Cuass DENIAL.........

D. Tue Covurt’s CLiass Action Decisions DEMoN-

STRATE CLEARLY THAT THE REPRESENTATIVE

Ngeep Not Have A PERSONAL STAKE AT THE

Time Or CERTIFICATION, IRRESPECTIVE OF

WHETHER THE Motion For Ciass CERTIFICA-

TION Was Previousty DENIED.

II. APPLYING THESE PRINCIPLES TO THIS

CASE DEMONSTRATES THAT THE CLASS

CLAIMS HERE IN ALL LIKELIHOOD ARE

NOT MOOT; THE CASE SHOULD BE RE-

MANDED TO THE DISTRICT COURT FOR A

CLASS ACTION DETERMINATION AS THE

COURT OF APPEALS DIRECTED.

CONCLUSION ........ ba relhee Safed GL enean cheat em

Page

23

29

ili

TABLE OF AUTHORITIES

CASES

, Page

Airline sthurds etc: v. American Airlines, Inc., 490 F.2d

636 (7th Cir. 1973), cert. den., 416 U.S. 993 (1974) 10

American Pipe & Construction Co. vy. UViah, 414 U.S. 538

(1974) Page SAP ot Nese teuNPO Pune Ag ote bametanete yeas 16, 19

Bailey v. Patterson, 369 U.S. 31 (1962) 7

Baker v. Carr, 369 U.S. 186 (1962) ................000. 3,6

Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402 (2d

Ce SON wicked os Oe 2 : diceiendine 16

Board of School Comm’rs v. Jacobs, 420 U.S. 128

(1975) 11, 16, 25, 26

Bogus v. American Speech & PSOE: Ass’n, 582 F.2d 277

(Ba Ce: BO ree oak Saat 21

Coopers & Lybrand vy. Livesay, 437 U.S. 463 (1978) 17, 19, 22

County of Los Angeles v. Davis, _. U.S. —__, 59 L.Ed.2d

TEM ble CLEC AM A Meek weld Se eal sek eh ie Satele 5

Craig v. Boren, 429 U.S. 190 (1976) .............cccces 5

East Texas Motor Freight System, Inc. v. Rodriguez, 431

U.S. 395 (1977) 18, 22, 23, 26

Electric Fittings Corp. v. Thomas & Betts Co., 307 U.S.

241 (1939) PROT EIAE EA ae ge ee 0 Dp aha a 22

Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1967), cert. den.,

394 U.S. 928 (1969) 19

Flast v. Cohen, 392 U.S. 83 (1968) 3, 4, 6, 11, 12, 24

Franks v. Bowman Transp. Co., Inc., 424 U.S. 747 (1976) passim

Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1975) 12, 25

Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478

(1978) 17, 19, 22

Gelman v. Webdiaddiets Electric Corp., 556 F.2d 669 (3d

Cir. 1977) buat hbaes decd Duce ue kb atl olce Sige Pak 19

iv

Cases — Continued

Page

Geraghty v. United States Parole Conan, 579 F.2d 238

(3d Cir. 1978) erry Us

Gerstein v. Pugh, 420 U.S. 103 (1975) | | passim

Gonzalez v. Cassidy, 474 F.2d 67 (5th Cir. 1973) b, 13, 23

Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir. T1978) 11

Hall v. Beals, 396 U.S. 45 (1969) BF fab 7, 10

Hansberry v. Lee, 311 U.S. 32 (1940) 3, 8, 9, 12, 13, 14, 21

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) 21

Hopson v. Schilling, 418 F. Supp. 1228 (N.D. Ind. 1976) 20

Jiminez v. Weinberger, 523 F.2d 689 (7th Cir. 1975) 16

Joint Anti-Fascist Refugee Committee v. McGrath, 341

U.S. 123 (1951) RS Pe aNd, Se yh L ey OLE 4

Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.), cert.

den., 419 U.S. 885 (1974) 19

Kidd v. Schmidt, 399 F. Supp. 301 (E.D. Wise. 1975) 9

Kremens Vv. Bartley, 431 U.S. 119 (1977) 8, 10, 11

McArthur vy. Southern Airways, Inc., 556 F.2d 298 (5th

Cir. 1977) siete pra'g sled DANp a Neco achat ie gee en ae 8,17

Mersay v. First Republic Corp. " America, 43 F.R.D. 465

(S.D.N.Y. 1968) PR are Re pers BD peta Wy 12

Moore v. Ogilvie, 394 U.S. 814-(1969) 5

New York Telephone Co. v. Maltbie, 291 U.S. 645 (1934) 21

North Carolina v. Rice, 404 U.S. 244 (1971) 4,9

O’Shea v. Littleton, 414 U.S. 488 (1974) owiehe ee &

Pasadena City Bd. of Ed. v. Spangler, 427 U.S. 424 (1976) 26

Pearson v. Ecological Science Corp., 522 F.2d 177 (5th Cir.

1975), cert. den., 425 U.S. 912 (1976) ..............8. 17, 22

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 3,5

Quern v. Jordan, _.. U.S. —_, 59 L.Ed.2d 358 (1979) 10, 11

Vv

Cases — Continued

Page

Richardson v. Ramirez, 418 U.S, 24 (1973) 14, 24, 25

Roe v. Wade, 410 U.S, 118 (1973) | 3,5

Romasanta v. United Airlines, Inc., 587 F.2d 915 (7th Cir.

1976), aff'd. sub, nom. United Airlines, Inc. v. McDonald,

432 U.S, 385 (1977) Is

Roper v. Consurve, Inc., 578 F.2d 1106 (5th Cir, 1978),

cert. granted, No. 78-904 (Mar. 5, 1979) 10, 11, 12, 28

Schlesinger v. Reservists Commiltee to Stop the War, 418

U.S. 208 (1974) rae 6, lL, 20

Shelton v. Pargo, Inc, 578 F.2d 1298 (4th Cir, 1978) 11

Simon v. Eastern Kentucky Welfare Rights Organization,

426 U.S. 26 (1976) : 41 SLR Mey Tae 4

Smith v. Swormstedt, 57 U.S. (16 Tow.) 288 (1853) 14,15

Snyder v. Harris, 394 U.S. 322 (1969) 15

Sosna v. Lowa, 419 U.S. 393 (1975) passim

Storer v. Brown, 415 U.S. 724 (1974) 5

Super Tire Eng’r. Co. v. McCorkle, 416 U.S, 115 (1974) 5

Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921) 15

Swisher v. Brady, 438 U.S. 189 (1978) 6, 15, 24, 25

Thompson v. Bd. of Ed., 71 F.R.D, 398 (W.D. Mich. 1976) 20

United Airlines, Inc. v. McDonald, 432 U.S. 385

(1977) ee eo re Fe

United States v. Alleghany-Ludlum Inds., Inc., 517 F.2d

826 (5th Cir. 1975) .......... Rial eee 9

United States v. Truckee-Carson Irrigation District, 71

F.R.D. 10 (D. Nev. 1975) oes dctaas 20

United States v, Trucking scala Inc., 72 F.R.D, 101

(D.D.C, 1976) Dexa Wis Atal rope 20

United States v. W.T. Grant Co., 345 U.S. 629 (1953) 5

vi

Cases — Continued

Warth v. Seldin, 422 U.S, 490 (1975) .....0 6. eee,

Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966),

aff'd. per curiam, 390 U.S. 333 (1968) ne

Weinstein v. Bradford, 423 U.S. 147 (1975) .

Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3d Cir.),

cert. den., 421 U.S. 1011 (1975)

Wheeler v. American Home Products Corp,, 582 F.2d 891

(5th Cir. 1977)

Zahn v. International Paper Co., 414 U.S. 291 (1972)

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES

United States Constitution, Anticle III

Parole Commission and Redrganization Act, 18 U.S.C.

§§ 4201-4218

Fed. Rule Civ. Proc, 23 (1966) a

Fed. Rule Civ. Proce. 83 (1966) Pree

Fed. Equity Rule 38 (1912) fee ol ee

Orner AUTHORITIES

Advisory Committee's Note to Amended Rule 23, 39 F.R.D.

98 (1966) |

Berger, Standing to Sue in | Puadblic Actions: Is It a Consti-

tutional Requirement?, 78 Yale L. J. 816 (1969)

Davis, The Liberalized Law of viasantiss 37 U. Chi. L. Rev.

450 (1970)

Jaffee, The Citizen As Litigant in Public Actions: The Non- -

Hohfeldian or Ideological s\roeson 116 U. Pa. L. Rev.

1033 (1968) __. eee pellicle uirade ho bcet eens

26

9

passim

a

uo

vii

Oruer AuTHoRITIES — Continued

Page

Kalven & Rosenfeld, The Contemporary Function of the

Class Swit, 8 U. Chi. L. Rev. 684 (1941) 21

Kaplan, Continuing Work of the Civil Committee: 1966

Amendments of the Federal Rules of Civil Procedure

(1), 81 Harv. L. Rev. 356 (1967) 8

3B Moore’s Federal Practice (1978) 8, 14, 16, 20

Newberg, Newberg on Class Actions (1977) i 8

Wright, Miller & Cooper, 15 Federal Practice & Procedure

(1976) 22

Note, Collateral Attack on the Binding Effect of Class Ac-

lion Judgment, 87 Harv. L. Rev. 589 (1974) . td 16

Note, Defendant Class Actions, 91 Harv. L. Rev. 630 (1978) i)

Note, The Mootness Doctrine In The Supreme Court, 88

Harv. L. Rev. 373 (1974) Se a ehe d catted h

Note, Standing to Assert Constitutional Jus Tertii, 88

Harv. L. Rev. 423 (1974) a i 5

In THE

Supreme Court of the Anited States

Octoser TrRM, 1978

No. 78-572

UNITED STATES PAROLE COMMISSION, er At.,

Petitioners

v.

JOHN M. GERAGHTY,

Respondent

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF AMICUS CURIAE

INTEREST OF AMICI CURIAE AND

STATEMENT PURSUANT TO RULE 42.2

OF THE RULES OF THE SUPREME COURT

National Client Council, Ine. is a non-profit corporation

representing low-income clients of publicly and privately-

funded legal services organizations. Low-income clients

from all regions of the United States elect the Board

of Directors of National Client Council, Inc., at least

two-thirds of whom must be low-income persons eligible

2

for the legal representation by the legal services organiza-

tions. These low-income clients are directly and uniquely

affected on a consistent and continuous basis by policies

and regulations of federal and state welfare, housing and

health agencies and of regulated institutions, such as pub-

lic utilities, nursing homes, mental institutions, juvenile

institutions, local courts and departments of motor vehicles.

The Jackson, Mississippi Chapter of the Gray Panthers

is a membership organization of elderly residents of the

Jackson, Mississippi area. They have many of the same

interests as the clients of National Client Council, Inc., but

are especially affected by nursing home and medicaid

policies and regulations.

When disputes arise concerning the legality under fed-

eral law of these policies and regulations or of the state

enabling statutes, the class action device is critical for

insuring that the federal courts adjudicate these federal

legal questions affecting many people similarly situated.

Named plaintiffs in class suits to enforce these rights can

be and have been selectively granted their individual rights,

raising mootness issues. The prospect of death of an

elderly named plaintiff, which would moot his personal

claim and perhaps the class claim, is ever present. Thus,

both National Client Council, Inc. and the Jackson, Missis-

sippi Chapter of the Gray Panthers have a strong interest

in the issue of class action mootness which will be directly

affected by the resolution of the mootness question before

the Court in this case. |

Express consent to file this brief amicus curiae has been

given by all parties to this suit. The original letter from

each counsel is filed herewith.

3

SUMMARY OF ARGUMENT

Where there is clear injury in fact to the named litigant

initially, Article ILI does not require continuous personal

stake by the named litigant in all suits. Roe v. Wade, 410

U.S. 113 (1973); Pierce v. Society of Sisters, 268 U.S. 510

(1925). Rather, continued Article III justiciability turns

on continued concreteness of issues and adverseness of

interests. Flast v. Cohen, 392 U.S. 83 (1968); Baker v.

Carr, 369 U.S. 186 (1962).

In class suits, concreteness of issues and adverseness of

interests as to the class claim are subsumed within the Fed.

Rule Civ. Proce. 23(a) prerequisites, which can be satisfied

without regard to whether the representative who initially

was injured in fact loses his personal stake. Sosna v. Lowa,

419 U.S. 393 (1975). Denial of the representative’s Rule

23(¢)(1) motion for class “certification” does not inher-

ently destroy concreteness or adverseness; class “certifica-

tion” and class “denial” are creatures of current federal

procedure, not constitutional requisites. //ansberry v. Lee,

311 U.S. 32 (1940). Thus, in proper class suits, where the

Rule 23(a) elements are present, the case is justiciable

under Article ILI.

In this case, the nexus between Respondent’s facts and

the facts of at least a subelass of the pleaded class, and the

continued vigorous advocacy of the absentees’ interests by

class counsel, are evident. The case should be remanded to

the district court for a proper Rule 23(¢)(1) determination.

4

ARGUMENT

I. ARTICLE If DOES NOT REQUIRE THE REPRESENTA-

TIVE IN A SUIT FILED AS A CLASS ACTION TO MAIN-

TAIN A PERSONAL STAKE AT ALL TIMES IN ORDER

TO APPEAL THE INITIAL CLASS DENIAL.

A. ArticLe III Justiciasiniry Turns On CONCRETE-

NEss Or Issues AND ADVERSENESS OF INTERESTS

RATHER THAN CONTINUED PERSONAL STAKE OF

Tue NAMED PARTIES,

The federal judicial power extends to “cases” or “con-

troversies” under Article III, a limitation excluding “moot”

eases. Franks v. Bowman Transp. Co., Inc., 424 U.S. 747,

754-56 (1976); North Carolina v. Rice, 404 U.S. 244, 246

(1971). The words “cases” and “controversies” confine fed-

eral court business to “questions presented in an adversary

context and in a form historically viewed as capable of

resolution through the judicial process.” Flast v. Cohen,

392 U.S. 83, 95 (1968).

Most commonly, the requisite Article IIT “ease” or “con-

troversy’ is provided when the named parties have and

continue to have sufficient personal stake in the outeome of

the immediate controversy so that a judicial order can re-

dress the personal injury. Simon vy. Eastern Kentucky

Welfare Rights Organization, 426 U.S. 26, 38 (1976). How-

ever, numerous lines of Supreme Court eases have estab-

lished that such a continuous personal stake by the named

parties is not always the constitutional requisite.

A personal stake by the named parties is entirely un-

necessary in certain representative suits such as where a

litigant is an organization seeking to assert the rights of

its members, Joint Aviti-Fascist Refugee Committee v.

5

McGrath, 341 U.S. 123 (1951); see Warth v. Seldin, 422

U.S. 490, 511 (1975); or where the litigant has a lega! duty

to absentees with a personal stake, Pierce v. Society of Sis-

ters, 268 U.S. 510 (1925) (parochial school asserting rights

of students). And once judicial power is properly invoked,

the need for continuous personal stake by the plaintiff,

even in non-representative suits, is virtually extinct if

the challenged conduct will continue in the future, such

as where the issue is “capable of repetition, yet evading

review,” Roe v. Wade, 410 U.S. 113, 125 (1973) (abortion

statute); where there is “voluntary cessation” of allegedly

illegal conduct, United States v. W. T. Grant Co., 345 U.S.

629, 632 (1953); see County of Los Angeles v. Davis,

U.S. __, 59 L.Ed. 2d 642, 649 (1979); where the litigant

raises “jus terti” constitutional claims of third parties,

Craig v. Boren, 429 U.S. 190, 195-96 (1976) (statutory bar

to 18-20 year old males buying liquor) ; and where the case

involves a justiciable issue of continued government action,

Storer v. Brown, 415 U.S. 724 (1974) ; Moore v. Ogilvie, 394

U.S. 814 (1969) (statutory restrictions on independent can-

didates’ nominating petitions); see Super Tire Eng’r. Co.

v. McCorkle, 416 U.S. 115, 126 (1974).

In all such cases, attenuation of continued personal stake

is permissible under Article III because there was clear

injury in fact from a specific factual occurrence that will

likely recur in similar fashion, giving the suit concreteness.

1 See also Davis. The Liberalized Law of Standing, 37 U. Chi.

L. Rev. 450, 47 (1970); Jaffe, The Citizen As Litigant in Public

Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. Pa. L.

Rey. 1033, 1037-38 (1968); Berger, Standing to Sue in Public Ac-

tions. Is it a Constitutional Requirement? 78 Yale L. J. 816 (1969) ;

Note, The Mootness Doctrine In The Supreme Court, 88 Harv. L.

Rey. 373, 377 n.22 (1974); Note, Standing to Assert Constitutional

Jus Tertui, 88 Harv. L. Rev. 423, 438 n.74 (1974).

6

Compare with O'Shea vy. Littleton, 414 U.S. 488 (1974);

* Schlesinger v. Reservists Committee To Stop The War, 418

U.S. 208 (1974) (abstract injury insufficient).

Thus, the named parties’ continued personal stake is but

the most common, but not the constitutionally exclusive,

means for a court to insure that the case satisfies Article

IIl. Rather, Article LIL requires a “concrete adverseness

which sharpens the presentation of issues upon which the

court so largely depends for illumination of diffieult .. .

questions.” Baker v. Carr, 369 U.S. 186, 204 (1962) ; quoted

in Franks v. Bowman Transp. Co., Inc., supra., 424 US. at

755. Thus, in proper cases it is concreteness of issues and

adverseness of interests that satisfies Article III by insur-

ing that the questions are presented both in a speeifie fae-

tual setting that focusses the issues and in an adversary

context. last v. Cohen, supra; Baker v. Carr, supra.

B. In Proper Crass Suits, CONCRETENESS OF IssvuES

AND ApverseNess Or INTERESTS ARE PRESENT

Recarpiess Or Wuetuer Tue REPRESENTATIVE’S

Criam Is Auive At Tue Time Or CertiricaTion Or

Wuetuer Tue Crass Was Deniep Orn PropEeaty

CERTIFIED.

Based on this well-established Supreme Court authority,

it was entirely consistent for the Court to hold in Sosna v.

Towa, 419 U.S. 393 (1975) that the representative's loss of

her personal stake did not deprive the Court of Artiele ITI

justiciability to hear the merits of the proper class suit.

See also Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975):

Franks v. Bowman Transp. Co., Inc., supra; Swisher v.

Brady, 438 U.S. 189, 213 n.1l (1978). Sosna clearly estab-

lished that class “certification” under Fed. Rule Civ. Proe.

7

25(e)(1) before the representative's loss of personal stake

is sufficient to avoid mootness if the suit continues to be a

proper elass action; but Sosna neither addressed nor an-

swered whether class certification preceeding loss of the

representative’s personal stake is necessary to preserve

Article LLL justiciability.

Amict suggest that focussing on the timing of the repre-

sentative’s loss of his personal stake in relation to when

the court rules or could have ruled on Rule 23(e)(1) class

“certification” misses the essential Artiele [1] mark. Con-

tinued personal stake by the representative in proper class

suits is not the Article IIT requisite. Sosna v. Lowa, supra.

Rather, where the representative initially has a justiciable

claim, the question is whether the requisite conereteness of

issues and adverseness of interests continue to exist in the

class suit. Indeed, conereteness and adverseness are the

very form and essence of elass actions, and are embodied

in the Rule 23(a) prerequisites.

1. Conereteness Of Issues Is Present Where The Facts

Of The Representative’s Initially Justiciable Claim

Are Sufficiently Similar To The Absentees’ Factual

Circumstances.

Concreteness of issues is necessary to insure that a judi-

cial decision is not rendered in a vacuum, as would be with

an unripe case or an advisory opinion. See //all v. Beals,

S96 U.S. 45, 48 (1969). In class svits, the representative

must have individual standing at the time of filing to

satisfy Article LIL initially and must be a member of the

class. Sosna v. lowa, supra, 419 U.S. at 402-03; O'Shea v.

Littleton, supra, 414 U.S. at 494; Bailey y. Patterson, 369

U.S. 351 (1962). These requirements, insuring that the case

8

is ripe and redressable through judicial process, funetion

as the mold into which the court can fashion its legal eon-

struct. See Kremens v. Bartley, 431 U.S. 119 (1977)2

By filing a class complaint, the representative with indi-

vidual standing brings absentees’ interests before the court.

See McArthur y. Southern Airways, Inc., 556 2d 298 (5th

Cir. 1977) (Rule 23(e) governs plaintiff's attempt to drop

class allegations from complaint “as a matter of right”

under Fed. Rule Civ. Proe. 15); 3B Moore’s Mederal Prac-

tice {| 23.50 at 23-423 (1978). The court ean exercise its

judicial power with respect to those interests only-where a

sufficient bond or “nexus” exists between the representa-

tive’s facts and the absentees’, so that reference to the

representative's past injury focusses judicial attention on

the absentees’ cireumstances as well. See IMansberry v.

Lee, 311 U.S. 82, 41-43 (1940) (“interests of those not

joined |must be] of the same class as the interests of those

who are”); Kaplan, Continuing Work of the Civil Commit-

tee: 1966 Amendments of the Federal Rules of Civil Pro-

cedure (1), 81 Harv. L. Rev. 356, 387 & n.120 (1967) (inter-

ests must be “closely alligned”); Mquity Rule 388 (1912)

(“when the question is one of common or general interest

to many persons constituting a class ...); see generally

Newberg, Newberg on Class Actions 122-46 (1977).

* The requirement for individual standing initially by the repre-

sentative also helps proteet against collusive suits favoring the

defendant and sereens out indifferent and barratrous volunteers,

thereby contributing to adverseness of interests. See pp, 12-14,

infra,

* A classic example of how this “nexus” clement satisfies Article

IIL concerns is the defendant elass action, in which a plaintiff sues

a defendant as representative of a defendant class of absentees with

whom the plaintiff has no personal controversy cognizable under

Article If. Where the defendant representative’s and the ab-

9

99

To satisfy this focussing element, current Rule 25(a) (2)

and (3) require that the claims of the representative be

“typical” of those of the class and that there are questions

of law and fact “common” to the class. These Rule 23

elements insure that a court will not be rendering a deei-

sion “affeet{ting] the rights” of absentees and “touching

the[ir] legal relations” with the defendant, North Carolina

v. Rice, supra, 404 U.S. at 246, without regard to the ma-

terial facts of their circumstances. If these elements exist,

the absentees’ continued controversy with the defendant

is brought into proper foeus and the broad ease, involv-

ing many persons and their interests, has concreteness.

Geraghty v. United States Parole Comm’n, 579 F.2d 238,

250 (8d Cir. 1978) .4

The connection between Rule 23(a)’s “nexus” require-

ments and Article LIL has been referred to by the Court

sentees’ circumstances are sufficiently close, a “juridical link” exists

so that Article IIT justiciability is satisfied as to the absentees. See

Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966), aff'd per

curiam, 390 U.S. 333 (1968) (plaintiffs in one prison could sue

sheriffs and wardens in all state jails in challenge to segregation) ;

Kidd v. Schmidt, 399 F. Supp. 301 (E.D. Wise. 1975) (plaintiffs

could sue all state officials authorized to admit persons to state and

county institutions in challenge to civil commitment without a hear-

ing); Note, Defendant Class Actions, 91 Harv. L. Rev. 630 (1978).

‘The nature of the “nexus” aspect of Rule 23 is most elear in

proper class suits for equitable relief under Rule 23(b) (2), where

“the party opposing the class has acted or refused to act on grounds

generally applicable to the class.” In such suits, the interests of

class members and the representative necessarily have a greater

“cohesiveness,” United States v, Alleghany-Ludlum Inds., Inc., 517

F.2d 826, 878 (5th Cir. 1975) (“the (b) (2) elass is by definition a

cohesive aggregate”), that permits a court to bind the class mem-

ber by a judgment even without pre-judgment notice and the

right to opt-out of the action. Rule 23(e) (2), (3); Mansberry vy.

Lee, 311 US, 32, 40-43 (1940); Wetzel v. Liberty Mutual Ins. Co.,

10

on several occasions. In Kremens v. Bartley, supra, the

Court refused to adjudicate the constitutionality of Penn-

sylvania statutes governing the admission and commitment

of minors to institutions, in light of statutory amendments

during the pendency of the case that had mooted the per-

sonal claims of minors over 14, including all the repre-

sentatives’. The amendments “fragmented” the class, 431

U.S. at 128, created an “obvious lack of homogeneity.” id.

at 130, and gave the Court “grave doubts” as to compliance

with Rule 23(a) and thus justiciability under Article III.

See id. at 129-30, 131 n.12, 134 n.15. In essence, the nexus

between the representative’s claims and the remaining ab-

sentees’ was unclear, and so was the Court’s Article II]

jurisdiction as a result. See also Hall v. Beals, supra (in

508 F.2d 239, 254-57 (3d Cir.), cert. den., 421 U.S. 1011 (1975);

see Quern v. Jordan, ___ U.S. —-—, 59 L.Ed.2d 358, 363 n.3

(1979). By definition, the defendant’s conduct applies to all class

members and subjects them all to the same continuing policy.

In class suits under Rule 23(b)(3), the existence of sufficient

“nexus” to provide Article IIL concreteness may depend upon the

type of suit. Where the action challenges or arises from a definite

and uniform poliey, such as the legality of a printed form, computer

calculation, or undisputed practice, e.g., Roper v. Consurve, Inc.,

578 F.2d 1106 (5th Cir. 1978), cert. granted, No. 78-904 (Mar. 5,

1979) (legality of uniform interest computation method), the ac-

tion is identical to a (b)(2) class suit except that only damages

for past injury rather than equitable relief against future conduct

is involved. See Airline Stewards, etc. v. American Airlines, Inc.,

490 F.2d 636, 646 (7th Cir. 1973), cert. den. 416 U.S. 993 (1974)

(suit for both injunctive and monetary relief certified under

(b)(2) should be recertified under (b)(3) when injunctive relief

claim becomes moot). However, when the defendant’s conduct is

more individualized, and the class suit is a mere conglomeration

of claims, the “nexus” most likely will be lacking.

®*If concreteness is obscured because the issues in the case have

been so altered that the named representative was never a member

11

challenge to six months residency requirement for voter

registration, statutory amendment reducing residency

period to two months destroyed class cohesiveness, render-

ing action moot).

Similarly, in Gerstein v. Pugh, supra, 420 U.S. at 110

n.l1, a challenge to pretrial detention procedures, the court

emphasized that the “constant existence of a class of per-

sons suffering the deprivation is certain” in rejecting a

mootness claim. The certainty that the absentees’ suffered

and will suffer the same deprivation suffered by the repre-

sentative gave the case the requisite concreteness. Com-

pare Board of School Comm'rs v. Jacobs, 420 U.S. 128

(1975) (per curiam) (case moot where no class was defined

and the foeus of the class suit, a student newspaper, had

ceased publication entirely). See also Roper v. Consurve,

Inc,, 578 F.2d 1106, 1111 (5th Cir. 1978), cert. granted, No.

78-904 (Mar. 5, 1979) (representative who was offered full

relief maintained sufficient nexus with class members to

satisfy Article II1).°

of the class whose claims remain to be adjudicated, and as long as

the class claim is properly before the court either through previous

certification or appeal of the failure to certify, see pp. 14-19 infra,

the reviewing court should remand for substitution of a new

representative. Kremens v. Bartley, supra, 431 U.S. at 134-35; ef.

Goodman vy. Schlesinger, 584 F.2d 1325, 1332-33 (4th Cir. 1978).

In such cases, notice should be sent to the absentees to inform them

of the status of their rights. See Quern vy. Jordan, —. US.

—._., 59 L.Ed.2d 358, 362-64 (1979); Shelton v. Pargo, Inc., 578

F.2d 1298 (4th Cir. 1978); Rule 23(d) (2).

*The Court has applied the same principle in the context of

Article LIL taxpayer “standing,” holding that there must be a

“logical nexus between the [taxpayer] status asserted and the

claim sought to be adjudicated.” Flast v. Cohen, 392 U.S. 83, 102

(1968); Schlesinger v. Reservists to Slop the War, 418 U.S. 208,

227-28 (1974).

12

Clearly, the nexus between the representative’s facts and

the absentees’, and thus Article III concreteness, does not

depend at all on whether or even when the representative

loses his personal stake. It is a function of the facts giving

rise to the representative’s initial injury as compared to

the absentees’ circumstances, i.e. initial standing and

“commonality” and “typicality.” Subsequent developments

not pertaining to this nexus may moot the representative's

personal claim but are irrelevant to Article III concrete-

ness.’

2. Adverseness Of Interests Is Present Where There Is

Vigorous Representation Of The Interests Of Absen-

tees With A Continuing Stake In The Defendant's

Challenged Policy.

Article III requires that the issues be presented in an

adversary context to sharpen the issues and to insure

against collusive suits. last v. Cohen, supra, 392 U.S. at

95. In class actions, due process mandates that the absen-

tees’ interests be adequately represented before the absen-

tees can be bound by a judgment. Hansberry v. Lee, supra.

Rule 23(a)(4)’s adequate representation prerequisite im-

poses on the representative and class conusel a strict obli-

gation to vigorously assert the class members’ interests to

bring those interests fully to the court’s attention. E.¢.,

Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir. 1973) ; Mersay

v. First Republic Corp. of America, 43 F.R.D. 465, 470

* Similarly, the nexus and Article IIT concreteness do not depend

on -whether the representative loses his personal stake through

elapse of time, conduct of the defendant or even interim court or-

der. See Roper v. Consurve, Inc., supra; Frost v. Weinberger, 515

F.2d 57 (2d Cir. 1975).

13

(S.D.N.Y. 1968).° To be a proper class suit, adequate rep-

resentation must persist throughout the litigation, includ-

ing the appellate stage. Gonzales v. Cassidy, supra.

It is clear from Sosna and subsequent decisions that ad-

verseness of interests in a class action can be present with-

out regard to the representative's loss of his personal stake

as long as the class counsel still vigorously asserts the class

members’ interests. In Sosna, the class counsel “compe-

tently argued [the interests of the class! at each level of

the proceeding ;” despite the absence of a representative

with a live stake on appeal, Rule 23(a) was satisfied and

the case was not moot. 419 U.S. at 403. In Franks v. Bow-

man Transp. Co., supra, 424 U.S. at 756, the Court found

the case still presented a live controversy because, in part,

“No questions [were] raised concerning the tenacity and

competence of the [class] counsel... .” Indeed, the Court

specifically held that the representation of the claims of

the unnamed class members presented the “adversary rela-

tionship” to confer Article III justiciability. 7d. at 755-76.

And in Gerstein v. Pugh, supra, 420 U.S. at 110 n.11, the

*Hansberry v. Lee shows the congruence of adequate class

representation and Article III adversity. An earlier suit to

enforce a racially restrictive covenant had been brought as a class

action on behalf of all affected landowners. The parties to that

class suit stipulated that 95 percent of the landowners signed the

covenant, as required by its terms, and the state court upheld the

covenant’s validity. The Hansberry suit was brought to enforce

the covenant against blacks who acquired land in violation of the

covenant. The Hansberry state court found that the stipulation

was “false and fraudulent,” 311 U.S. at 38, but nonetheless gave

res judicata effect to the earlier class suit judgment. The Court

held the earlier judgment was not binding in light of the inade-

quate representation of absentees’ interests precisely because the

earlier suit was a “collusive” suit brought against “nominal de-

fendants.” Id. at 45-46,

14

lack of a representative with a live claim was no bar to

Article III justiciability where “the attorney representing

the named respondents is a public defender, and we can

safely assume that he has other clients with a continuing

interest in the case,” presumably whose interests he was

advocating.

Thus, just as the Rule 23(a) class prerequisites can con-

tinue to be satisfied despite the loss of a representative

with a personal stake, Sosna v. Lowa, supra; Gerstein v.

Pugh, supra, the Article IIf elements of concreteness of

issues and adverseness of interests, embodied in the same

Rule 23(a) prerequisites, can obtain without regard to a

continuing live interest by the representative. Where the

class action is a proper class action, that is, “certifiable”

pursuant to Rule 23, Article [II’s elements will necessarily

be present and the case will not be moot.

3. Article II] Justiciability Is Not Determined By

Whether Class “Certification”? Was Properly Ordered

Or Was Denied.

As long as the absentees in a class suit are provided due

process, the Constitution does not require any particular

class action procedure, including Rule 23(e)(1) “eertifiea-

tion,” to enable the court to reach the merits of the absen-

tees’ claims and bind them by judgment. Richardson v.

Ramirez, 418 U.S. 24, 39 (1973); Hansberry v. Lee, supra,

311 U.S. at 42-43. Indeed, class actions derive from old

English equity courts, see 3B Moore’s Federal Practice

{| 28.02[1] at 23-36 (1978) and have been expressly recog-

nized by the Court as a federal procedural device for well

over one hundred years. Smith v. Swormstedt, 57 U.S. (16

How.) 288 (1853). Class “certification” and class “denial”

15

are but creatures of current Rule 23 procedure, existing but

13 years, and thus not Article III mandates. Compare Rule

23(¢e)(1) with Equity Rule 38 (1912); Supreme Tribe of

Ben-Hur v. Cauble, 255 U.S. 356 (1921); Smith v. Sworm-

stedt, supra. Consequently, a court order pursuant to Rule

23(¢)(1) “certifying” the class is not grounded in Article

III and alone cannot confer Article III jurisdiction. See

Zahn v. International Paper Co., 414 U.S. 291 (1972);

Snyder v. Harris, 394 U.S. 322 (1969); Fed. Rule Civ.

Proe. 83 (Rule 23 cannot enlarge Article III jurisdiction) ;

see also Sosna v. Iowa, supra, 419 U.S. at 413-14 (White, J.

dissenting).°

Rule 23(¢)(1) “certification” is a procedure designed “to

give clear definition to the class... .” Advisory Commit-

tee’s Note to Amended Rule 23, 39 F.R.D. 98, 104 (1966).

It is useful for aiding the courts, the parties, and inter-

ested persons in determining the scope and res judicata

effect of the judgment in a class suit. In a subsequent

* Certainly, as an order that Rule 23(a)’s elements are satisfied,

at least conditionally, the “certification” order confirms that con-

ereteness of issues and adverseness of interests are present, sce

pp. 7-14 supra, and is therefore sufficient to permit the suit to pro-

ceed without regard to the representative’s personal stake. Sosna v.

Iowa, supra; Gerstein vy. Pugh, supra; Swisher v. Brady, supra.

However, this is not to say that the “certification” order itself con-

fers Article III justiciability. It is but an appropriate proxy for

the existence of concreteness and adverseness that a court can use

to avoid extended inquiry into Article IIT issues in every class

action whenever the representative loses his personal stake. In

other words, if the class is certified, and the court is convinced the

certification continues to be proper, the class action necessarily

has concreteness and adverseness, inasmuch as Rule 23(a) embod-

ies Article III justiciability; the court need pursue the matter no

further.

©The early nature of the Rule 23(¢)(1) certification order is

designed to avoid the prejudice of “one-way intervention” and to

16

suit based on similar claims, the court is better able to de-

termine what was adjudicated and on whose behalf where

there is a clear class order. See Berry Petroleum Co. v.

Adams & Peck, 518 F.2d 402, 411 (2d Cir. 1975); Note,

Collateral Attack on the Binding Effect of Class Action

Judgment, 87 Harv. L. Rev. 589 (1974). Importantly for

the representative, a “certification” order is a procedural

requirement of the Federal Rules of Civil Procedure that

must be complied with before the court can address the

merits of the absentees’ claims."

Similarly, denial of the representative’s Rule 23(c) (1)

motion to have the class “certified” is only a procedural

ruling under current federal practice that the representa-

tive has not shown compliance with Rule 23(a) and (hb).

Without any further order under Rule 23(¢) (1), the action

cannot gain the status of a “certified” Rule 23 class action

so that the absentees’ claims can be adjudicated. The

court’s denial of the Rule 23(c)(1) motion does no more.

Only if such an order automatically and irrevocably ex-

tinguishes the class issues from the suit entirely in every

respect can it affect justiciability. But this Court has con-

_

aid the court in directing the course of the proceeding. See Ameri-

can Pipe & Construction v. Utah, 414 U.S. 538, 545-49 (1974).

However, especially in 23(b)(2) actions, early certification is not

mandatory. Jiminez v. Weinberger, 523 F.2d 689, 700 (7th Cir.

1975); 3B Moore’s Federal Practice § 23.50 at 23-430 to 23-432

(i978).

Thus, if the district court fails to properly certify the class

pursuant to Rule 23(c) (1), and that failure is not appealed by the

representative as error, the appellate court cannot address the

merits of the class members’ claims. See Board of School Comm’rs

v. Jacobs, 420 U.S. 128 (1975).

17

sistently held that class denial does not eliminate the class

issues from the case entirely.”

In the companion eases of Coopers & Lybrand y. Live-

say, 437 U.S. 463 (1978) and Gardner v. Westinghouse

Broadcasting Co., 487 U.S. 478 (1978), concerning the in-

terlocutory appealability of orders denying motions for

class certification, the Court held that such an order “is

subject to revision” and “inherently tentative,” Coopers &

Lybrand, 437 U.S. at 469 & n.11, and has no “irreparable

effect” on the class claims in the suit. Gardner, 437 U.S. at

480. In Gardner, the Court adopted the Court of Appeal’s

language that “If, after final judgment the [injunctive]

relief granted is deemed unsatisfactory [to protect the

class members], the question of class status is fully review-

able.” Jd. at 480 n.6 (emphasis added), quoting from 559

F.2d 209, 212 (3d Cir. 1977).

In United Airlines, Inc. v. McDonald, 482 U.S. 385 (1977),

the Court ruled that an unnamed class member could inter-

vene after final judgr-ent to appeal the earlier express

class denial, even though the named plaintiffs had received

2 The reference in the Advisory Committee’s Note to Amended

Rule 23, 39 F.R.D. 98, 104 (1966) that the case is “stripped of its

character as a class action” by a class denial clearly does not per-

tain to Article III justiciability or preservation of the class claims

for appeal. The same paragraph expressly points to “the laws gov-

erning jurisdiction” and other matters for the answers to such

questions. The intent by this reference was that the class denial

affirmatively relieves the court and the plaintiff of their obliga-

tions to the absentees. See United Airlines, Inc. v. McDonald,

supra, 432 U.S. at 393; compare Pearson v. Ecological Science

Corp., 522 F.2d 171, 177-78 (5th Cir. 1975), cert. den., 425 US.

912 (i976) (parties’ individual settlement after class denial not

subject to Kule 23(e)) with McArthur v. Southern Airways, Inc.,

supra (attempt to drop class allegations pursuant to Rule 15 be-

fore defendant filed answer was subject to Rule 23(e)).

1S

all the relief they sought for themselves. The Court held

that “The Distriet Court’s refusal to certify was subject

to appellate review after final judgment at the behest of

the named plaintiffs... .° 482 U.S. at 598." 1f the elass

denial had extinguished the class claims entirely, the plain-

tiffs’ receipt of all their relief would have precluded any

further pursuit of the class issues in that litigation.

East Texas Motor Freight Systems, Inc. v. Rodriquez, 43)

U.S. 395 (1977) is in accord, There, the district court denied

the class and found that the representatives suffered no in-

jury from the challenged diseriminatory practices. The rep-

resentatives did not appeal’the loss of their individual

claims, 431 U.S. at 401, but appealed only the elass denial.

On review, neither the Fifth Cireuit nor this Court suggested

that a representative without a live personal claim could

not appeal the class denial, but proceeded to analysis of

the Rule 23 elements. Again, the class denial was pre-

served through appeal. See also Wheeler v. American

Home Products Corp,, 582 F.2d 891, 897-98 (5th Cir. 1977) ;

Romasanta vy. United Airlines, Inc., 537 F.2d 915, 919 n.7

(7th Cir. 1976), aff'd sub nom. United Airlines, Inc. v. Me-

Donald, 482 U.S. 385 (1977) (elass denial in Title VIT suit

does not strip case of its class character so entirely that

class members are barred from intervening thereafter to

prosecute their individual claims even though they did not

" This holding was essential to the ruling; if the named plaintiff

could not appeal the class denial upon final judgment, an unnamed

class member would have had to intervene upon elass denial to

protect his own interests, and the move to intervene after final

judgment would have been untimely. The Court characterized this

as “|[t}he critical factor.” 482 U.S. at 394

19

satisfy the administrative exhaustion requirements of

Title VII).

Cc. Tue Representative In A Proper Crass Suir

Neep Have No Personat Stake IN THe Cass

Cram To Appear Tue Crass DENIAL,

The ability of a representative to appeal the class denial

upon final judgment, Coopers & Lybrand v. Livesay, supra;

Gardner v. Westinghouse Broadcasting Co., supra, is not

at all based on the representative’s having a personal stake

in the class claim. Indeed, except possibly in the rare class

There are also strong poliey reasons for preserving the poten-

tial class claims through final appeal of the class denial, Lf denial

irretrievably extinguishes the class claims from the suit, trial courts

would be constrained to certify questionable classes to preserve the

class claims, thereby prejudicing the defendant. Sce Katz vy. Carte

Blanche Corp., 496 F.2d 747 (3d Cir.), cert. den., 419 U.S. 885

(1974) (test case may be superior to certifieation). Class denial

would be unreviewable both as a matter of Article IIT justiciability,

and as a practical matter because of the almost certain running of

the statute of limitations until final review is possible, See Gelman

v. Westinghouse Electric Corp,, 556 F.2d 669, 701 (38d Cir. 1977) ;

Esplin vy. Hirschi, 402 F.2d 94, 101 n.14 (10th Cir, 1967), cert.

den., 394 U.S. 928 (1969). Interloeutory appeal from the class

denial might be necessary. cf. Coopers & Lybrand vy. Livesay;

Gardner v. Westinghouse Broadcasting Co, Absentees would have

to intervene or file new suits at an carly stage to protect their in-

terests. See United Airlines, Inc, v. McDonald, The judicial eeon-

omy inherent in class actions would be wasted, See American Pipe

& Constr. Co. vy. Utah, 414 U.S, 588 (1974).

Where the mootness occurs prior to class denial, judicial economy

would seem to demand preservation of the class claims. Other-

wise, class members would have to intervene immediately upon fil-

ing of the class suit to protect their interests,

20

suit where the absentees are true indispensible parties, the

representative never has a legally cognizable personal stake

in the class claim at all."®

Adding class allegations to the complaint gains nothing

personally for the representative; the representative can-

not gain by the class device what he cannot do on his own.

Schlesinger v. Reservists Committee to Stop the War,

'* Defendant class actions are no exception, In such actions,

where the plaintiff has a claim against all defendants, the class

device is used by the plaintiff merely to join all the plaintiff's

claims in one suit. See United States v. Truckee-Carson Irrigation

District, 71 F.R.D. 10 (D.Nev. 1975); United States v. Trucking

Employers, Inc., 72 F.R.D. 101 (D.D.C. 1976). The plaintiff is

not the representative at all. The named defendant may be re-

quired to be a representative over his objection and without any

personal stake in the absentees’ claims. United States v. Trucking

Employers, Inc., supra; Hopson vy. Schilling, 418 F.Supp. 1223,

1237 (N.D.Ind. 1976); Thompson v. Bd. of Ed., 71. F.R.D. 398, 407

n13 (W.D.Mich. 1976). From the plaintiff's perspective, the de-

fendant class action is merely a variation of the interpleader pro-

cedure, where all claims adverse to the plaintiff can be adjudicated

in one suit.

Indeed, class suits where the absentees are indispensable parties

are similar to defendant class actions in this respect. The repre-

sentative’s personal interest in the class suit is merely to overcome

judicial reluctance to adjudicate suits directly affecting the rights

of persons not represented in the proceeding. The representative

has no personal stake in the absentees’ claims, merely an interest

in the procedural device as a means of securing an adjudication of

his personal claim. See 3B Moore's Federal Practice § 23.02[{1] at

23-36 to 23-38 (the class action in English equity was both an

escape from and an adjustment to the rule of compulsory joinder).

Absent this judicial reluctance, the would-be representative could

receive a decree fully satisfying his personal interest without re-

sort to the class suit. See Rule 23(b)(1)(A) (foeus on rights of

party opposing the class) and Rule 23(b)(1)(B) (foeus on inter-

ests of absent class members), neither of which igs concerned with

the rights or stake of the representative.

supra, 418 U.S. at 216; O'Shea v. Littleton, supra, 414 U.S.

at 494. In Sosna, Gerstein, Swisher and Franks, each rep-

resentative could have seeured full individual relief, that

is, a judgment enjoining the resideney requirement for a

divorcee, the pretrial detention procedures, the state's

ability to make exeeptions to the juvenile master’s findings,

and the trucking company’s seniority rules, each as applied

to him or her personally, without any need for the class

action device.” Yet, the court could adjudicate the absentees’

claims because of the “recognized exception” in representa-

tive suits to the due process principle that a court has no

jurisdiction to bind a person by judgment unless he is per-

sonally before the court. //ansberry vy. Lee, supra, 311,

U.S. at 41.

Without a personal stake in the class claim, the repre-

sentative cannot possibly have a personal stake in’ the

appeal of the class denial. A party cannot appeal a judg-

ment where he can gain nothing legally cognizable from the

appeal. New York Telephone Co. v. Malthie, 291 U.S. 645

(1934) (utility that secured permanent injunction against

enforcement of rate orders could not appeal portions of the

deeree); Bogus v. American Speech & Hearing Ass’n, 582

'® Obviously, there are advantages to a person in bringing a class

suit. His elaim or interest usually is too insubstantial to warrant

the enormous expense to him personally of litigation, and no attom

ney will aceept the suit without the prospeet of fees from the elass

recovery. See Hawaii vy. Standard Oi Co., 405 U.S. 251, 266

(1972). A person may have an interest in secking redress for other

people or deterring fraud or illegal conduet in the market place.

See generally Kalven & Rosenfeld, The Contemporary Function of

the Class Suit, 8 U.Chi.L. Rev. 684 (1941). Tlowever, none of these

advantages is a legally eognizable interest that could be asserted

judicially or grant Article IL] jurisdiction. See Warth y. Seldin,

supra; O'Shea vy. Littleton, supra.

22

F.2d 277, 291 (8d Cir. 1978) (party could not appeal denial

of others’ motion to intervene); Wright, Miller & Cooper,

15 Federal Practice & Procedure § 3902 (1976).

Thus, in Coopers & Lybrand vy. Livesay, supra, a suit

brought under Rule 23(b)(3) for damages for violations

of the federal securities laws, the representative’s claim

was entirely distinct from every class members’, and the

representative could pursue and secure full individual

monetary relief without the class claim. Yet, the repre-

sentative’s ability to file the suit as a class action and

appeal the class denial after final judgment was never in

doubt. Whether Livesay wins on his individual claim

through adjudication, loses on the claim, or receives full

relief by settlement will have no affect on either his per-

sonal stake in the class claim or his ability to appeal the

class denial.**

In Gardner v. Westinghouse Broadcasting Co., supra,

the class denial had no adverse effect on the seope of in-

junctive relief the representative could secure to enforce

her individual interests if she prevailed on her individual

‘While there can be an exception for a judgment having ad-

verse res judicata or collateral estoppel significance, see Electric

Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241 (1939) (patent

infringement suit by patent holder; defendant who prevailed on

finding of no infringement can appeal judgment because holding

of patent validity has res judicata effect), class denial has no res

judicata effect. Pearson v. Ecological Science Corp., supra, 552

F.2d at 177-78; see Coopers & Lybrand vy. Livesay, supra; Gardner

v. Westinghouse Broadcasting Co., supra.

** The outcome on the representative's individual claim certainly

may have a bearing on his ability to represent the class under

Rule 23. East Texas Motor Freight Systems, Inc. v. Rogriguez,

supra. But this is an issue of compliance with Rule 23(a)’s strict

adequacy of representation requirement, not Article III justicia-

bility. See id. (Article IIL not raised where representatives ap-

pealed class denial after loss on merits of individual claims).

23

claim. Thus, whether she wins or loses on her personal

claim does not affect her lack of legally cognizable inter-

est in the class denial. See also United Airlines, Inc. v.

McDenald, supra (successful representative could appeal

class denial); Hast Texas Motor Freight Systems, Inc. v.

Rodriguez, supra (unsuccessful representatives appealed

class denial) ; Gonzales v. Cassidy, supra (fully successful

representative has continuing duty to class members to

pursue their interests through appeal).

D. THe Court’s Ciass Action Decisions DEMON-

STRATE CLEARLY THAT THE REPRESENTATIVE NEED

Nort Have A PersoNnaL STAKE At THE Time OF

CERTIFICATION, IRRESPECTIVE Or WHETHER THE

MoTion For Crass CERTIFICATION WAs PREVIOUSLY

DENIED.

On four occasions this Court has expressly recognized

that federal courts are not divested of Article II1 justi-

ciability merely because the representative in an action

filed as a class action but not yet certified as such loses his

personal stake in the controversy.

In Gerstein v. Pugh, supra, the court approved certifica-

tion of the class and rejected a claim of mootness despite

the absence of any showing in the record that any of the

named plaintiffs was still in custody awaiting trial at the

1° Thus, Petitioners entirely miss the mark in attempting to dis-

tinguish McDonald by suggesting that a representative who has

secured full individual relief “suffered from the adverse class de-

termination” only where, as in McDonald, that relief was, or may

have been, secured by judgment. Pet.’s Brief at 37-39. Not only is

there no support in any class action decision for this distinction,

but no representative “suffers” from a class denial in any sense of

legal injury in fact, regardless of whether the representative pre-

vails individually by judgment, loses on the merits, or receives full

satisfaction in other ways.

j 24

time of certification.*” In Swisher v. Brady, supra, the

Court held that the fact that none of the named plaintiffs

was still subjected to possible double jeopardy “did not

deprive the District Court of the power to certify the class

action when it did and that, accordingly, a live controversy

presently exists between the unnamed class members and

the State.” In United Airlines, Inc. v. McDonald, supra,

the potential class claims survived both express denial and

full satisfaction of the representatives’ individual claims to

permit intervention by an unnamed class member upon

final judgment to appeal the class denial.

Similarly, in Richardson v. Ramirez, supra, 418 U.S. at

33-40, a California state court class suit brought by three

ex-felons challenging the constitutionality of their disen-

*° Petitioners argue that only “capable of repetition, yet evading

review” class actions can survive pre-certification mooting of the

representative's claim. Pet.’s Brief at 31-36. However, Franks v.

Bowman Transp. Co., Inc., supra, 424 U.S. at 756 n.8, clearly re-

jects this claim: “Thus, the ‘eapable of repetition, yet evading

review’ dimension of Sosna must be understood in the context

of mootness as one of the policy rules often invoked by the

Court . . . [which] find their source in policy, rather than purely

constitutional considerations.’ Flast v. Cohen, 392 U.S. 83, 97

(1968).” See also id. at 781 (Powell, J., concurring in part) (the

doctrine is “only a factor in our discretionary decision whether to

reach the merits of an issue, rather than an Art. IIT ‘ease or con-

troversy’ requirement.”). Furthermore, Petitioners’ assertion that

the doctrine applies in class actions, as in non-elass actions, only

“because the named plaintiff's claim itself may be adjudicated,”

Pet.’s Brief at 32, flies in the face of Sosna, where the Court speci-

fieally found that Mrs. Sosna’s claim was moot and applied the

doctrine to the absentees’ claims. 419 U.S. at 400; id. at 411

(White, J., dissenting). Thus, in Sosna, as in Gerstein and

Swisher, the case would have been moot but for its class nature.

See also United Airlines, Inc. v. McDonald, supra, clearly not a

“repetition/evasion” case.

25

franchiserent, the Court expressly held that the defend-

ant’s acquiescence to the representatives’ individual claims

before the state court reached either the class issue or the

merits did not moot the ease. The Court found a live con-

troversy between the class members and the defendants

despite the hiatus between this loss of personal stake and

any judicial recognition of the action as a class action.”

Thus, neither loss of the representative’s personal stake

prior to judicial recognition of the action as a class action,

as in Gerstein, Swisher and Richardson™ nor express class

denial and, subsequent loss of any personal stake in further

relief, as in McDonald, moots the ease filed and vigorously

prosecuted as a class action.

The three cases where the Court found the class claims

moot after the representative’s claim became moot are en-

tirely consistent. In Board of School Comm’rs v. Jacobs,

supra, the district court’s failure to comply with Rule

23(¢)(1) in ruling on class status was not assigned as

error. As a result, the Court did not have the class before

it as a matter of federal procedure, and absent a live plain-

tiff, the case was moot.

*1 Although Richardson was a state court case, and the state was

“at liberty to prescribe its own rules for class actions,” those rules

were “subject... [to] the United States Constitution,” 418 U.S.

at 39, and could not confer on this Court an otherwise absent

Article III jurisdiction.

22 The dicta in Sosna vy. Iowa, supra, where the representative's

claim was clearly alive at certification, 419 U.S. at 398, that the

named plaintiff must have a live controversy “at the time the class

action is certified by the District Court pursuant to Rule 23,” id.

at 402, was “drained” of its “apparent force” by Gerstein, Swisher,

and McDonald. See Frost v. Weinberger, 515 F.2d 57, 64 (2d Cir.

1975). Even Sosna itself recognized that this dicta was not man-

dated by Article II]. 419 U.S. at 402 n.11.

26

As an Article LIT case, Jacobs can be best understood in

terms of concreteness of issues and adverseness of inter-

ests. The failure of counsel to seek a proper class certifica-

tion, 420 U.S. at 130, or pursue the issue on appeal, cast

serious doubt on the adequacy of representation under Rule

23(a)(4) and thus Article III] adverseness. See East Texas

Motor Freight Systems, Inc. v. Rodriguez, supra, 431 U.S.

at 404-05. More importantly, Jacobs was a First Amend-

ment case involving the rights of students to control the

contents of a student newspaper. 420 U.S. at 129. When

the individual students involved graduated and the news-

paper ceased publication, 420 U.S. at 133 (Douglas, J.,

dissenting), abe case became hopelessly diffused. The ab-

sence of any focus for the Court to measure the First

Amendment issues deprived the suit of any concreteness

of issues.**

In Weinstein v. Bradford, 423 U.S. 147 (1975) (per

curiam), the class representative filed with the Court a

suggestion of mootness, thereby abandoning the class

claims and eliminating the potential adverseness of in-

terests. While the case was brought as a class action, it

was neither certified as such under Rule 23(e)(1) nor

prosecuted to this Court as such, and was properly treated

as a non-class action. Pasadena City Bd. of Ed. v.

Spangler, 427 U.S. 424 (1976) is similar. There the pur-

ported representative did not raise in this Court as error

the failure of the lower court to comply with Rule 23(¢) (1).

8 Franks v. Bowman Transp. Co., Inc., supra, also sharply re-

duces any foree of the particular Jacobs language. Jacobs stated

that the case is moot “unless it was duly certified as a class ae-

tion . . . and the issue is capable of repetition yet evading review.”

420 U.S. at 129 (emphasis added). As discussed in note 20 supra,

Franks laid to rest this postulation of the mootness doctrine in elass

actions,

27

In any event, because the United States had intervened as

a party, the liveness of the class claims was irrelevant to

the Court’s reaching the merits. 427 U.S. at 430.

Il. APPLYING THESE PRINCIPLES TO THIS CASE DEM-

ONSTRATES THAT THE CLASS CLAIMS HERE IN ALL

LIKELIHOOD ARE NOT MOOT; THE CASE SHOULD

BE REMANDED TO THE DISTRICT COURT FOR A

CLASS ACTION DETERMINATION AS THE COURT OF

APPEALS DIRECTED.

Both concreteness of issues and adverseness of interests

almost certainly remain in this case. Respondent was a

prisoner affected by the allegedly illegal parole guidelines

in the same way as all prisoners sentenced under the same

statute as Respondent and whose “customary release dates”

fall beyond their sentence period. Current prisoners and

future prisoners in that category continue to be and will

continue to be similarly affected by the guidelines. The

legality of the guidelines under the Parole Commission and

Reorganization Act, 18 U.S.C. §$ 4201-4218 and the ex

post facto prohibition of the Constitution is an issue uni-

form to all such prisoners and does not turn on factual

variations in the absentees’ circumstances. Geraghty v.

U.S. Parole Comm'n, supra, 579 F.2d at 252. Thus, those

prisoners’ rights can be adjudicated with reference to Re-

spondent’s facts at the time of filing. Sosna v. lowa, supra;

Gerstein v. Pugh, supra. Counsel’s continued vigorous ad-

voeacy of their interests, Geraghty v. U.S. Parole Comm'n,

24This is the smallest class Respondent could represent under

the Court of Appeals’ analysis. Geraghty v. United States Parole

Comm’n, supra, 579 F.2d at 253-54.

28

579 F.2d at 252, provides the requisite adverseness of in-

terests. Franks v. Bowman Transp. Co., Inc.. supra.

Neither Respondent’s release from prison nor the dis-

trict court’s order denying the motion to certify the class

under Rule 23(¢)(1) alters any of these facts. Thus, the

class claim, preserved for appellate review of the class

denial order, is appropriate for adjudication and not moot

if this suit is a proper class action. The case should be

remanded to the district court for determination of the

class action question pursuant to Rule 23(¢)(1) in light of

the Court of Appeals’ directives.*

** Amici do not address whether this is in fact a proper class

action.

As to Deposit Guaranty National Bank v. Roper, No. 78-904,

this analysis strongly suggests that the case was not mooted by the

defendant’s tender of full damages to the named plaintiffs after

class denial. The class denial was based neither on a lack of

nexus between the representative’s claim and the absentees’ nor

on the vigorousness of class counsel’s advocacy of the absentees’

interests. Roper v. Consurve, Inc., supra, 578 F.2d at 1111-12.

29

ao

dl

CONCLUSION

Amici respectfully suggest that the judgment of the

Court of Appeals that the case is not moot should be af-

firmed.

Respectfully submitted,

Rosert J. Hoss

Ricuarp ALPERT

National Consumer Law

Center, Ine.

Attorneys for Amici Curiae

National Clients Council,

Ine. and

Jackson, Mississippi

Chapter of the Gray

Panthers