Defendant.

The principal case interpreting RCFC 23 is Quinault Allottee Association v. United States, 197 Ct. Cl. 134, 453 F.2d 1272 (Ct. Cl. 1972). As described in both the memorandum supporting our motion and defendant’s opposition, Quinault established eight criteria for evaluation on a case-by-case basis in determining whether a class action is warranted. In Berkley v. United States, 45 Fed. Cl. 224 (1999), Judge Horn articulates these criteria and places them in context with class action analysis under Rule 23 of the Federal Rules of Civil Procedure:

The eight elements of the Quinault standard for class certification closely parallel Federal Rule of Civil Procedure 23, as follows:

(1) Quinault states that the members of the class must constitute a large, but manageable class; Federal Rule of Civil Procedure 23(a)(1) allows certification if the class is so numerous that joinder of all members is impracticable, and Federal Rule of Civil Procedure 23(b)(3)(D) takes into account manageability in allowing class certification;

(2) Quinault requires that there must be a question of law common to the whole class; Federal Rule of Civil Procedure 23(a)(2) requires questions of law or fact common to the class;

(3) Quinault directs that there must be a common legal issue that overrides separate factual issues affecting individual members; Federal Rule of Civil Procedure 23(b)(3) has a consistent requirement that the question of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for fair and efficient adjudication;

(4) Quinault offers that the claims of the party plaintiffs should be typical of the claims of the class; Federal Rule of Civil Procedure 23(a)(3) requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class;

(5) Quinault directs that the government must have acted on grounds generally applicable to the whole class; another of the alternatives identified in Federal Rule of Civil Procedure 23(b) states that one of the possible elements of a maintainable class action is that the opposing party to the class has acted or refused to act on grounds generally applicable to the group (Rule 23(b)(2));

(6) Quinault offers that the court should review whether the claims of the many claimants are so small that it is doubtful they otherwise would be pursued; similarly, the underlying theme of Federal Rule of Civil Procedure 23, as discussed in the Advisory Committee Notes of 1966, suggests that "the amounts at stake for individuals may be so small that separate suits would be impracticable," see Federal Rule of Civil Procedure 23 (Advisory Committee Notes discussing subsection (b)(3) of Rule 23); see also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 616, 138 L. Ed. 2d 689, 117 S. Ct. 2231 (1997);

(7) Quinault directs that the party plaintiffs must adequately and fairly protect the interests of the class without a conflict of interest; the same requirement is covered in Federal Rule of Civil Procedure 23(a)(4);

(8) Quinault requires consideration of whether the prosecution of individual lawsuits could create a risk of inconsistent or varying adjudications; Federal Rule of Civil Procedure 23(b)(1)(A) addresses the same concern.

In the course of suggesting a class of 166 officers might not be sufficiently large to warrant class proceedings, defendant makes reference to several earlier cases in which certification was denied and in which reference was made to the fact that this Court does not have difficulty dealing with proceedings in which there may be hundreds of plaintiffs. Defendant’s Opposition at 4. Plaintiffs do not challenge this assertion but question its relevance to the issue now before the Court. Judge Tidwell, the author of one of the those cases, Abel v. United States, 18 Cl. Ct. 477 (1989), has revisited the nature of class action proceedings in this Court and the terminology used in discussing them:

Unlike Rule 23 of the Federal Rules of Civil Procedure, RCFC 23 is discretionary, granting the court freedom to determine under what circumstances to certify a class and the terms and conditions of the class once it is certified.

Despite this broad grant of discretion, prior cases in this court have repeatedly observed that class actions are "reserved for extraordinary cases and [are] generally disfavored." O'Hanlon v. United States, 7 Cl. Ct. 204, 206 (1985); see Buchan v. United States, 27 Fed. Cl. 222, 223 (1992); Black v. United States, 24 Cl. Ct. 471, 477 (1991); Armitage v. United States, 18 Cl. Ct. 310, 312 (1989), aff'd, 991 F.2d 747 (Fed. Cir. 1993); Cutright v. United States, 15 Cl. Ct. 576, 578 (1988); Busby School of the Northern Cheyenne Tribe v. United States, 8 Cl. Ct. 596, 602 (1985), Saunooke v. United States, 8 Cl. Ct. 327, 329 (1985). The language disfavoring class actions originated in O'Hanlon, and appears to have been premised merely on the fact that class actions were not frequently certified in this court. See O'Hanlon, 7 Cl. Ct. at 206. The lack of class actions prior to O'Hanlon may be attributed more to the fact that previous cases were not suited for class action resolution than to a generalized belief that they should not be certified in this court. After O'Hanlon, however, courts appeared to treat the disfavored status language as a general rule, rather than making an individual determination regarding the propriety of each class action. Considering the discretionary nature of RCFC 23 and the fact that it calls for a case-by-case determination, there appears to be no basis for stating that class actions are "generally disfavored" and should be used only in "rare and extraordinary cases."

Whether a proposed class satisfies the size and manageability criteria is not a simple mathematical analysis. As stated in Taylor v. United States, 41 Fed. Cl. 440 (1998) :

The court finds plaintiffs’ proposed class of at least 213 persons a sufficiently large but manageable group. Cases applying the numerosity requirement very widely. Compare Abel, 18 Cl. Ct. at 478-79 (numerosity requirement not satisfied by class of over 1200 plaintiffs), with Hannon v. United States, 31 Fed. Cl. 98, 103 (1994) (numerosity requirement satisfied by class of 340 plaintiffs). The court is given the discretion to determine on a case-by-case basis whether a proposed class is sufficiently large, and in this case the court believes that the numerosity requirement is satisfied.

In determining whether a class is manageable, the court considers whether the members of the class are readily identifiable, easily reachable, and whether there are factual distinctions that would interfere with resolution of the issues and thus undermine the manageability of the class. See Moore, 41 Fed. Cl. 394, 1998 U.S. Claims LEXIS 148, 1998 WL 381732, at *2; Hannon, 31 Fed. Cl. at 103; Armitage, 18 Cl. Ct. at 313-14. Through limited discovery of AAFES records, plaintiffs can readily identify and notify the potential class members. Although the potential members are spread throughout the world, they are linked through the Army and Air Force, and as a result, should not be difficult to reach. Finally, there appears to be little factual variance among the claims. Plaintiffs’ proposed class is manageable.

The class proposed here is sufficiently large but manageable. An appropriate discussion of the “numerosity” factor cannot be divorced from discussion of manageability. There are potentially 166 members of the class. The defendant can and apparently has precisely identified all such individuals. Defendant’s Response at 4. The statute of limitations has run as to any issues regarding the conduct of the FY94SERB other than those raised by the pending complaint. Now, as a matter of law, there are no factual distinctions that would interfere with resolution of the issues and thus undermine the manageability of the class. This is true for two reasons. First, by virtue of the application of the statute of limitations, the only claims which may be presented to this Court are the Constitutional claims raised by the pending complaint. Any additional claims that members of the class might theoretically have had cannot now be the subject of judicial review. Second, Constitutional rights are individual, not group rights: every Air Force Officer’s Equal Protection rights are identical whatever the race or gender of the individual. There inevitably are many factual differences between the qualifications of the officers considered for involuntary retirement by the FY94 SERB, but no such factual differences are legally relevant to the universal entitlement to an evaluation free from Constitutionally prohibited discrimination nor to the remedy for violation of that right. There are no factual distinctions that would interfere with efficient management of the case. Defendant asserts that 166 officers were involuntarily retired as a result of the FY94 SERB while the potential class in Berkley consisted of 1,595 officers. Defendant’s opposition at 4. Judge Horn’s discussion of numerosity in Berkley is particularly relevant to defendant’s assertion:

The plaintiffs are correct that the first Quinault factor, which requires a large, but manageable class, has been satisfied in the instant case. The plaintiffs allege that there would be approximately 1,595 possible plaintiffs in the proposed class. This is a sufficiently large number of prospective litigants even if certain potential members are found to be ineligible because of an expired statute of limitations. Each case raises the identical legal questions, and originates from the same factual background, the impact of the Memorandum of Instruction issued by the Secretary. The potential class, although not small, is manageable, in part because the defendant should be able to identify the class members by using military personnel records.

In Taylor v. United States, 213 Army and Air Force employees were found to satisfy the requirement for a sufficiently large, but manageable class when the court used a discretionary, case-by-case approach to approve the numerosity requirements for the class certification. See Taylor v. United States, 41 Fed. Cl. at 445. The court considered whether the members of the class were "readily identifiable, easily reachable, and whether there [were] factual distinctions that would interfere with resolution of the issues and thus undermine the manageability of the class." Id. The court found that, despite the possibility that the potential plaintiffs were located around the globe, they were linked through the Army and Air Force, and based on this connection were easily reachable. Id. Similar to the case at bar, there appeared to be few factual differences between the liability issues raised by the potential class members in Taylor v. United States. Id.; see also Moore v. United States, 41 Fed. Cl. at 397-99; Armitage v. United States, 18 Cl. Ct. at 313 (finding numerosity satisfied by 100,000 class members, yet denying certification based in part on unidentifiable class members).

As noted earlier, defendant also questions whether the Fourth, Sixth and Seventh Quinault factors support certification of the proposed class, but does not claim there are any material differences between the analysis of these factors in this case and in Berkley. The formal instruction in Berkley, which is alleged to have introduced unconstitutional consideration of race and gender by a formal selection board, is identical to the instruction used by the FY94SERB. Compare Answer ¶ 15 in Berkley v. United States, CFC No. 98-943C with Complaint ¶ 16. Accordingly, the discussion of these factors in Berkley is of particular relevance. In Berkley, defendant also suggested that the claims were not uniform and typical. The Court, however, determined:

Next, in order to meet the fourth Quinault test, the plaintiffs contend that their constitutional claims are uniform and typical of the proposed class by the very nature of their claim that the Secretary's Memorandum of Instruction issued to the FY93 RIF Board violated the constitutionally protected right of equal protection under the law for all of the commissioned officers who were involuntarily separated. The defendant responds by suggesting that if the class is certified, the individual members of the proposed class will be denied the opportunity to bring other separate claims beyond the constitutional allegations included in plaintiff's complaint. The defendant further argues that dissimilar remedies, which it believes apply to each of the class members, prevent the potential class from having the required typicality of claims directed by the forth element of the Quinault model.

In the past, the typicality requirement in the Quinault test has not been found to be unusually restrictive. For example, in Armitage v. United States, 18 Cl. Ct. at 313, the court, although ultimately denying the request for class certification, was satisfied that the typicality requirement was met, even though the named plaintiffs, law enforcement officers, wanted to represent a class of potentially 100,000 diverse federal employees. A constitutional challenge to federal taking of private land likewise fulfilled the typicality prerequisite based on a sample of deeds furnished. Moore v. United States, 41 Fed. Cl. at 399. In Taylor v. United States, five plaintiffs who claimed they were denied separation pay were found to be sufficiently typical to represent "all future, present, and former Army and Air Force Exchange Service (AAFES), non-mobile employees and all future, present, and former AAFES, mobile employees who did not make a Permanent Change of Station ... and who are, were, or will be employees as defined by 5 U.S.C. § 5597(a)(3)." 41 Fed. Cl. at 443. In the case at bar, the court believes that the named plaintiffs, who claim a denial of equal protection under the Constitution of the United States, are typical of the 1,595 commissioned officers who, according to the allegations in the plaintiffs' complaint, were denied the equal protection of the law based on the Memorandum of Instruction issued by the Secretary of the Air Force.

The sixth Quinault factor calls for an evaluation of whether the size of the claims is such that they would not independently be pursued. Defendant assumes because plaintiffs noted that the statute of limitation would preclude any independent pursuit of relief, that plaintiffs were arguing the Court should otherwise ignore the size analysis. This is incorrect. The size of the claims here fully supports class certification. As summarized in Berkley:

The sixth factor of Quinault directs this court to inquire whether the claims of the plaintiffs are so small that it is doubtful that otherwise the claims would be pursued, but for certification of the class action. The "class-action device was designed to allow an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-01, 61 L. Ed. 2d 176, 99 S. Ct. 2545 (1979). Although each person involved in litigation has a significant interest in individually controlling the prosecution of his or her case, those interests "may be no more than theoretic where the individual stake is so small as to make a separate action impracticable." See Amchem Products v. Windsor, 521 U.S. at 616 (citing Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356 (1967) (footnotes omitted in original)). If the approximately potential 1,595 alleged class members, who are located throughout the United States, were to bring their not-so-large claims individually, it could be cost prohibitive for some, if not many.

In addition to the evaluation of the specific Quinault factors there is a further consideration relevant to determining whether it is appropriate to certify the class in this case, the statute of limitations:

Prior decisions also have suggested that an expiring statute of limitations is a "legitimate concern" when deciding whether or not to certify a class, and one which weighs in the plaintiff's favor. See Moore v. United States, 41 Fed. Cl. at 400 (citing Armitage v. United States, 18 Cl. Ct. at 315). In the instant case, if the class certification is not granted, the former commissioned officers who have not joined in the action would be precluded from filing any future claims against the FY93 RIF Board based on the applicable six year statute of limitations.

Related considerations inform the court’s decision whether to certify a class at all. Were the certification refused here, many retired officers, a number of them pro se, would be forced to file intervention motions or initiate their own suits to avoid the statute of limitations. Because the operative events of this controversy took place approximately five years prior to the filing of the Complaint in this case, the access of other similarly situated officers to the court would be significantly constrained. Timely suits, on the other hand, would likely burden the court through a backlog of similar cases and the likely need for extensive travel to accommodate all the plaintiffs. These problems will be avoided through the use of a class action device.

The expiration of the statute of limitations further supports granting the certification requested in this case because any involuntarily retired officers who have not joined in this action would be precluded from filing future claims against the FY94SERB.

Defendant requests a stay based upon defendant’s intention to file a dispositive motion in this proceeding. Defendant has cited no precedent of this Court for such a stay and plaintiffs are aware of none. Moreover, based upon Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) and other relevant authority plaintiffs also intend to file a dispositive motion in this matter asserting that judgment should be entered for the plaintiffs based upon the administrative record because no compelling governmental interest can ever justify the use of race and gender conscious measures in the termination of the careers of innocent individuals. Judgment for the plaintiffs was entered in Christian v. United States, __ Fed. Cl. ___, No. 97-165C (Court of Federal Claims June 5, 2000), upon that predicate. It would be extremely inefficient and introduce unwarranted complexity to this action for the Court to delay the normal prompt disposition of class certification motions in favor of a special motion opportunity for defendant that would likely ultimately require duplication of briefing and hearing requirements before the Court on the applicability of Constitutional standards to defendant’s board procedures. Accordingly, granting the requested stay would be contrary to the standard of Rule 1(a)(2) of the RCFC which states “These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.” This filing completes the scheduled briefing on the motion for class certification. There is no apparent reason to delay a decision on that matter. However, in the event the Court concludes that it would be more efficient to address the certification issue in the course of addressing defendant’s contemplated dispositive motion, plaintiffs respectfully suggest that the simultaneous adjudication of these issues, including plaintiffs’ contemplated cross motion, is more efficient than indefinitely staying a certification decision. In Christian v. United States, __ Fed. Cl. ___, No. 97-165C (Court of Federal Claims June 5, 2000), the Court dealt simultaneously with both a motion for certification and cross motions for judgment upon the administrative record.

For the reasons set forth above plaintiffs respectfully request that the Court certify this proceeding as a class action and deny defendant’s motion to stay.

I certify under penalty of perjury that on this 8^th day of June, 2000, I caused to be placed in the United States Mail (first class mail postage prepaid), copies of Plaintiffs’ reply to defendant’s Opposition to plaintiffs’ motion for class certification and opposition to defendant’s motion to stay addressed to defendant as follows: