|
On December 22, 1999, plaintiffs filed a complaint raising constitutional challenges
to their involuntary retirement from active duty with the United States Air Force
based upon the recommendation of the Fiscal Year 1994 Colonel (O-6) Selective
Early Retirement Board (FY94 O-6 SERB or Board). In accordance with Rule 23
of the Rules of the Court of Federal Claims (RCFC), plaintiffs contemporaneously
filed a motion to certify a purported class of similarly situated officers.
Pursuant to RCFC 1, 23, 77.1(a), and 83.2(a), we move to stay consideration
of their motion. In the alternative, we respond in opposition to plaintiffs' motion for
class certification.
I. Request to Stay Consideration
As we discussed in our contemporaneously filed memorandum,
the United States intends to file a dispositive motion, in lieu of
an answer, to plaintiffs' complaint. In light of our pending motion,
the Court is empowered to stay consideration of plaintiffs' motion for
class certification to first consider the merits of their claim.
See Schweizer v. Trans Union Corp., 136 F.3d 233, 239 (2d Cir. 1998)
("There is nothing in Rule 23 which precludes the court from examining
the merits of plaintiff's claims on a proper [dispositive motion] because
such a motion precedes resolution of the issue of class certification.")
(internal quotation omitted); Cowen v. Bank United of Texas, FSB,
70 F.3d 937, 941 (7th Cir. 1995); Jibson v. Michigan Educ. Ass'n-NEA,
30 F.3d 723, 734 (6th Cir. 1994); Floyd v. Bowen, 833 F.2d 529, 534
(5th Cir. 1987) ("class action litigation may be halted by a Rule 12 motion to
dismiss or by a Rule 56 motion for summary judgment");
Marx v. Centran Corp., 747 F.2d 1536, 1552 (6th Cir. 1984)
("It has never been doubted that a complaint asserting a class action
could be dismissed on the merits before determining whether the suit could
be maintained as a class action.");
Wright v. Schock, 742 F.2d 541, 543-44 (9th Cir. 1984)
("Under the proper circumstances -- where it is more practicable to do so
and where the parties will not suffer significant prejudice -- the district court has
discretion to rule on a motion for summary judgment before it decides the
certification issue.");
Vervaecke v. Chiles, Heider & Co., 578 F.2d 713, 719-20 (8th Cir. 1978)
("Under Rule 23 the district court is given broad discretion to determine the
maintainability and the conduct of class actions." ) (quotation omitted);
Thornton v. Mercantile Stores Co., 13 F. Supp. 2d 1282, 1290 (D. Ala. 1998);
Kirchgessner v. Wilentz, 884 F. Supp. 901, 917-18 (D.N.J. 1995).
But see Fineberg v. Sullivan, 634 F.2d 50, 64 (3d Cir. 1980).
Our memorandum outlines strong grounds, upon which our dispositive motion will expand,
for granting judgment in favor of the United States. In light of our forthcoming motion,
it would be
inefficient for the Court to consider the class certification issue at this time;
if the Court grants
judgment in our favor, the issue will become moot.
Marx, 747 F.2d at 1552 ("To require notice
to be sent to all potential plaintiffs in a class action when the underlying claim is
without merit is
to promote inefficiency for its own sake.");
Baystone Resources Co. v. United States,
2 Cl. Ct. 625, 628 (1983) ("[t]he other members of the [proposed] class should not be invited
to board a sinking ship");
see also RCFC 1(a)(2) ("These rules shall be construed to secure
the just, speedy, and inexpensive determination of every action.").
II. Opposition To Class Certification
Plaintiffs principally rely upon two cases in their motion:
Quinault Allottee Ass'n v. United States, 197 Ct. Cl. 134, 453 F.2d 1272 (1972), and
Berkley v. United States, 45 Fed. Cl. 224 (1999). As they note,
Quinault requires the Court to evaluate eight criteria in determining whether
class certification is warranted; whether:
(1) the proposed membership of the purported class "constitute[s] a large but manageable class";
(2) "there is a question of law common to the whole class";
(3) the asserted common legal question predominates over
"any separate factual issues affecting the individual members [of the purported class]";
(4) the asserted claims of the named plaintiff(s) are "typical" of the claims likely to
be asserted by the proposed class;
(5) the challenged Government action is "generally applicable" to the entire
membership of the proposed class;
(6) the asserted claims of the purported class "are so small that it is doubtful that
they would be pursued other than through this case";
(7) the named plaintiff(s) "will fairly and adequately protect the interests of the
[proposed] class without a conflict of interest"; and
(8) "the prosecution of individual actions by members of the [purported] class
. . . would create a risk of inconsistent or varying adjudications."
Quinault, 197 Ct. Cl. at 140-41.
In Berkley, the Court considered a constitutional challenge C raised by involuntarily
separated Air Force officers C to the Memorandum of Instructions
(MOI) provided to their reduction-in-force board.
Berkley, 45 Fed. Cl. at 226. Although this case is similar to
Berkley, it differs with respect to at least one material point.
Furthermore, the proposed class fails to satisfy several
Quinault criteria.
A. Numerosity
Similar to plaintiffs here, the
Berkley plaintiffs sought to certify a class comprised of all officers selected for involuntary
separation by their board.
Compare Berkley, 45 Fed. Cl. at 225-26
with Compl. ¶ 1. The class proposed by the
Berkley plaintiffs constituted approximately 1,595 people, which the Court determined
was "a sufficiently large number of prospective litigants."
Berkley, 45 Fed. Cl. at 225-26, 231.
By contrast, the class proposed by plaintiffs in this case --
which includes all of the officers recommended for retirement by the FY94 O-6 SERB --
comprises only 166 officers. This is not a sufficient number of prospective litigants to
justify class certification. As this Court and its predecessors have made clear,
"[t]his court has . . . never had any difficulty dealing with hundreds of party plaintiffs."
Buchan v. United States, 27 Fed. Cl. 222, 224 (1992);
Abel v. United States, 18 Cl. Ct. 477, 478-79 (1989);
O'Hanlon v. United States, 7 Cl. Ct. 204, 206-07 (1985);
accord Campa v. United States, No. 96-279C (Fed. Cl.) (Merow, J.)
(pending military pay action involving 370 named plaintiffs).
In Quinault, the Court of Claims based its enumeration of class action criteria upon
Rule 23 of the Federal Rules of Civil Procedure.
1
Quinault, 197 Ct. Cl. 134, 453 F.2d 1272, 1274-76 (1972). To satisfy the numerosity
criterion under Fed. R. Civ. P. 23, a plaintiff must show that
"the class is so numerous
that joinder of all members is impracticable." Fed. R. Civ. P. 23(a);
see also Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 54 (8th Cir. 1977)
("party seeking class certification bears the burden of showing the impracticability
of joinder of potential class members");
Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980)
("The basic question is practicability of joinder, not number of interested persons per se.
Practicability of joinder depends on size of the class, ease of identifying its
members and determining their addresses, facility of making service on them
if joined and their geographic dispersion.")
In this case, joinder is quite practical. The number of proposed plaintiffs is relatively small;
this Court has demonstrated its ability to deal with an even larger number of individual
plaintiffs; their addresses are easy to determine; and, because of the Court's nationwide
jurisdiction, it has the facility to make service upon all of the proposed plaintiffs,
regardless of their geographic dispersion. Therefore, joinder is not impracticable and class
certification is not called for here.
2
B. Typicality And Adequacy Of Representation
Quinault also requires that the asserted claims of the named plaintiffs
be typical of the claims likely to be asserted by the proposed class, and that
the named plaintiffs be able to fairly and adequately protect the interests of the
proposed class without a conflict of interest. Plaintiffs' proposed class satisfies
neither of these requirements because their complaint fails to account for any
individual claims that officers may wish to raise with respect to the evaluation
of their own records.
When service members challenge the legality of a military separation,
they often attack not only the global board procedures, but also elements of the
board's particular consideration of their own records. This can be illustrated with reference to
Small v. United States, 158 F.3d 576 (Fed. Cir. 1998),
amended by 180 F.3d 1343 (Fed. Cir.),
cert. denied, 120 S. Ct. 64 (1999). In
Small, the plaintiff challenged the entire Air Force promotion system based upon his
promotion selection board's use of panels in lieu of its meeting as a single entity.
158 F.3d at 577-78. He also challenged the propriety of his own officer evaluation
report, which the board relied upon in determining his promotability.
Id. at 577, 581-82. As this Court explained in
Buchan v. United States, 27 Fed. Cl. 222 (1992),
"[b]ecause class members may be precluded from raising individual arguments,
this court has serious concerns that each member may not be adequately
represented by the named plaintiffs." 27 Fed. Cl. at 226.
But see Berkley, 45 Fed. Cl. 233-34.
C. Size Of Claims
Lastly, Quinault requires that the claims of the individual plaintiffs be so small that
they would likely not be pursued other than through a class action. In their
motion, plaintiffs do not assert that their proposed class meets this requirement.
Instead, plaintiffs argue that the Court should ignore this requirement because
the imminent running of the statute of limitations provides the proposed class
members with no better alternative to assert their claims than by a class action.
3
This Quinault criterion, however, relates to whether the
size of the claims makes
it doubtful that possible class members would pursue them through individual actions,
not whether the proposed class members have sat upon their claims rather than
asserting them in a timely manner. Acceptance of plaintiffs' argument would
encourage prospective plaintiffs to wait until the last day of the statute of
limitations to assert their claims so that they may have their cases certified as
class actions. The only issue regarding this criterion, therefore, is whether the
individual proposed class members' claims are so small that it is doubtful they
would pursue them other than through a class action.
If any proposed class member ultimately prevails in overturning the Air Force's decision to
select him or her for involuntary separation, that member may be entitled to any one
or more of five different remedies:
(1) backpay from the date of involuntary separation;
(2) a retroactive proportionate increase in cumulative retirement pay;
(3) retroactive reinstatement to active duty;
(4) correction of his or her military records to reflect continuous active duty service; and
(5) consideration for promotion based upon constructive service and, if selected, the
entitlements associated with such a promotion. These remedies, standing alone or
in combination, would likely result in a significant monetary judgment. Hence, it cannot
be said that the proposed class members' claims
"are so small that it is doubtful that
they would be pursued other than through this case."
See, e.g., Strickland v. United States,
36 Fed. Cl. 651 (1996) (involuntarily retired Air Force technical sergeant brought suit seeking
promotion, backpay, and reinstatement);
Womack v. United States, 34 Fed. Cl. 755 (1996)
(involuntarily retired Marine officer brought suit seeking promotion, backpay,
reinstatement and correction of military records);
Miller v. United States,
29 Fed. Cl. 107 (1993) (Coast Guard officer, who alleged he was wrongfully
passed over for promotion, brought suit seeking promotion, backpay and
correction of military records).
But see Berkley, 45 Fed. Cl. at 233.
CONCLUSION
For these reasons, we respectfully request that the Court stay
consideration of plaintiffs' motion for class certification. In the alternative,
we request that the Court deny their motion.
|
