Class Actions and the Military

• Author: Major H. A Dickerion
• Pages: 05

1. INTRODUCTION

Much OF the Ittigarion against the federal gmernmenr could be prevented If rhe officials who formulated policr took the time to carefully consider the effects that their decisions might haw on individual citizens Decision and policy makers should explicirlg consider these effects before finalizing their actions, particularl) m

YEW of the fact that an mdi\idual plaintiff mag bring a ciiil action tn a Federal disrricr court to \Indicate his rights. Further. a person iiho sues 10 redress a grievance against rhe Gorernmenr ma\ dw coier rhat there are many orhers who could bring suit an similar grounds, and if (heir number is so large chat their joinder as named plaintiffs IS mpracticable. a class action is then possible.

In the class action. named reprerentatires sue OT defend on be-half of rhe entire classli and the judgmenr, uhether or not farorable 10 the CIPSE. IS generalh binding on all members of the class.1 The rvpical class acrian IS brought on behalf of P class against P

this amcle II an adaprruon of d papper presented ID Thcludge idiacrte Gen-eral s Sclinol L S Arm, Charlorie~iille. Virginia nhile the aurhoi /$a/ a member of the Tuenwtourth ludse hdiocile Officer ,Adianced Claii The o~inions and

single defendant or againir a small numbei ofjoined defendants In such cases. although II ma, nor hare been economicalli feasible to sue P I a single plaintiff or eien ai joined plaintiffs. 11 ma! become fmanaalli pracrical IO bring a class action For tire same reasons. a class acrion has the capabiliri of >asrh increasing the hnancia1 exposure of a defendanr hho had expected thar onh a fen plaintiffs uih small claims would sue.

By its \ e n nature, the milttar\ establiihmenr affects large claries of people. and 11 is natural that the class action de\m IS being used mcreasingl> in witi against the militan H'hde there are no figures a\adable on rhe number of class action surs pending against the Deparrments of Defense and Arm). figures ihoii thar m recent bears there has been a general increase m class actions in the federal C0"TtS 6

Vhile class action litigation against the Arm, is primaril) defended h\ the Departmenr of Jumce s n ~ r h direct asii~tan~e from

the Lit1gmon Diiia~on,~

Arm\ arrorne)~ BC the installation ahere such litigarion ames are requiied to make prompt and detailed

legal reports IO the Lirigation Diriaton,' and ma) sometimes be called upon LO appear in court.8 The purpose of thn ariicle 1s to acquam mhtar) attomess wrh rhe current state of the la% regard. mg federal class actions and therebv pro\tde mhtarv attornmi with a frame ofreference to guide their involvemeni in lirigdriw di

their This article hill firs1 discuss the general prerequisites for class actions under Rule 23 of the Federal Ruler of Cnd Procedure. and ~ ~ 1 1

[hen deicnbe the three categories of class actions and their sometimes different procedural requiremenri. Finall), II will briefly examine rhe relarionshlp between Rule 23and cerrainiurisdictional issues Cares involving rhe military will be briefl5 presented, prmanh to clariR the \armus prerequisites for and the categories of class actions. In addition. these cases will idemif\ rituarions where litleation IS Iikelr.10

11. RULE 23-THE BASICS A. PREREQCISITES FOR MAISTAIXI~VGA CLASS ACTIOS

CA'DER RCLE 2310)

Subdivision (a) of Rule 23" lists the prerequisites for bringing a class action. These are neceiiarv preconditions. but not sufficienr in rhemselves roptifv the action. as rhe introductory language of subdi\ision (b) makes For certification of a ciais action, a partr must satish the prerequisires of iubdi\ismn (a) and ani one of the three proiisions in subdivision (bj. The burden is on the parti bringing a class action to shoX rhar the isrious requirements of Rule 23 are m a Subdiririon (a) hsrs four prerequiriter Tho others not explicitly listed but self-e\ident ale rhar a definable class musr exist and that the represenrati\e(r) must be members of the

i~aS~.14

1. A t1ais must exut

An eisenrial prerequisite to mainraining a class acrion IS the ex-istence of a class whore bounds are definable." While the class does not haie to be EO preiiaelv defined that e\err possible

member can be idenrified at the beginning of rhe the gen-eral outlines of the class must be determinable." As LVright and Miller note, the existence of B class "is a quesrion of fact that wll be determined on the basis of the circumstances of each This factual determination was illustrated m Cullen V. Cmted Stores,lg where a class composed of Air Narional Guardsmen conrested an Air Force regulation which prohibited the wearing of uigr. The district court in Cullen gave LWO reasons for the requirement thar the class be definable: 'This definition of the class 1s carefull\ dra*n so that It wtII not only insure the proper representation of the class by the named plaintiffs, bur also allot, a class r,hich IS ~n reality similarly situated to the named plaintiffs." The court defined the class as

tne measures as a con'equenie of a iiolaiion of k r Faice Regulation 3>10.

The court rejected a request by the plaintiffs for a retroactiie inclusion of Guardsmen who had been stationed ai OHare prior to the date that the action rar filed br raving that honoring the request "would onli obfuscate the muei and unnecessanl) complicate the Lnstant action.''2P

2.

Ordinar& rhe named representatiie part) must be a member of the class he purports to repre~enr.~~

Indeed, the opening phrase of subdivision (a) of Rule 23 requires that "one or more mambrri OC a cIPsI''~' serve as the representative Of course, uherher the pura-

'' Dolgow Y .Anderson, 43 I R D 472, 492 (E 0Lm,rupra note 14, 5 I760 rf 580 Danelan Pirrtyu Rule 23. 10 B C l ~ o ~ r

& COM L RE\ 527, 529 (1 x7Rappsportr Karr.62FRD 512,513!SDN rupm now 14, B 1760, SI

7 W a i c ~ r

& Ulrlra. iup,c note 14 Is 352 F Supp 441 (h D 111 1974) " I d ai 447

I* Id at 446.m Bnilcy \ Patterson, 369 L S 31 119 4 % 1761 Buliie uole,Du~iMaaringo/rhr.\ d Purrvont Io Rule 21 oflhr Fsdmd Rulr; of C L n 103 (1974)

Fro R Crr. P. 25!al (empha5ls add

Id SI

The repremmrwes mu~lbe members qfthe class

'I

1760 and

tiie representative IS a member of the class depends upon how rhe court defmer the class.

A difficulr problem in applying [he memberrhip-in-the-claEr pre-requiiire arises *hen an aimciatmn seeks to act as the representa-tive of its Some courts hare stated rhat the associatmn is not requesting any relief for itself and therefore is nor a member of the class it purports to represent; consequentlr. it cannot bring a class action on behalf of its membership.*6 Other courts have made an exceprion to this rule for asmaations created specially to protect the interests of their members if those interests are the subject of the acrion.l' Where the association 1s a bona fide unincorporated

associmon, Rule 23 2 of the Federal Rules provides that members of the unincorporated association m a be appointed as representa-tive parties for the class of a~so~iation

3. .viirnrraszty

Rule 23(a)( I) probides rhat a class action ma, be maintained onl)

if rhe s m of rhe class maker '31omder of a11 members . mpracric- able."*Y "Impracr~cable"...