Harold A. Spriggs, on Behalf of Himself and All Others Similarly Situated v. Jerry v. Wilson, Chief of Police

467 F.2d 382, 151 U.S. App. D.C. 328, 1972 U.S. App. LEXIS 8210

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 27, 1972
• Docket: 24719
• Status: Published

Opinions

MacKINNON, Circuit Judge:

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

I

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

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

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

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

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

II

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

A. Mootness

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

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

B. Class Action Status

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

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

The only operative difference between finding or not finding the case to be maintainable as a class action is the scope of the res judicata effect of the District Court’s judgment. If the case is not a class action, only appellant will be formally bound by the District Court’s judgment ; if it is properly a class determination then all members of the class are bound. The dismissal of the action as an exercise of the District Court's discretion to grant or deny declaratory relief makes this distinction chimerical at best. If class status were denied, any member of the class could bring another individual action for declaratory relief and, if he presented factual circumstances and claims more convincing than those presented by appellant here, the District Court would be free to exercise his discretion to grant such relief. However, upon presentation of similarly convincing claims by a class member bound by this case if adjudged a class action, the District Court would still be free to consider that those claims were sufficiently novel and compelling to avoid the res judicata effect of a previous exercise of discretion based on different factual and equitable considerations. Thus, in my opinion, the District Court’s failure to determine the class status of the case pursuant to Rule 23(c)(1) was not improper here — his disposition of the complaint makes such a determination largely irrelevant.

C. The Propriety of Declaratory Relief

The panel is also divided in our grounds for affirming the District Court’s order dismissing appellant’s request for declaratory relief. Appellant argued that the questions concerning police lineup procedures that he seeks to have resolved in this case have been the subject in this jurisdiction of considerable confusion and uncertainty regarding the rights of a suspect compelled to appear therein. He cites Professor Borchard’s classic treatise for the pi’oposition that:

The two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity and controversy giving rise to the proceeding.

E. Borchard, Declaratory Judgments 299 (2d ed. 1941). Appellant concludes that declaratory relief would thus provide an ideal way to clarify and settle the legal relations in issue and to resolve uncertainties surrounding the suspect’s rights at a lineup. He also disputes the District Court’s conclusion that an adequate alternative remedy exists, though he points out as well that Fed.R.Civ.P. 57 provides: “The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” ¹¹

The Government responds to these contentions with two, alternative, arguments. The first of these is premised on their position that the case cannot be maintained as a class action. Since the case is moot with regard to appellant’s individual claim, unless it can be maintained as a class action there is no actual, live controversy between parties with adverse legal interests.¹² Alternatively, the Government contends that all of appellant’s objections to the lineup procedures could be raised in a pre-trial suppression hearing and that such a hearing provides a completely adequate legal remedy.¹³ Where such an alternative legal remedy exists, the granting of declaratory relief is within the discretion of the district court,¹⁴ and a declaratory judgment action may properly be dismissed in the exercise of that discretion.¹⁵

Judge Tamm, having concluded that the case cannot be brought as a class action, would hold that there is no case or controversy presented here and would affirm the dismissal on the ground that the District Court lacked jurisdiction to grant the requested declaratory judgment. Judge Fahy and I find that the dismissal was a proper exercise of the District Court’s discretion to refuse to grant declaratory relief.

Appellant’s quotation from Professor Borchard’s treatise is taken somewhat out of context. After reciting the “two principal criteria” for awarding a declaratory judgment, the next sentence continues: “It follows that when neither of these results can be accomplished, the court should decline to render the declaration prayed.” E. Bor-chard, supra. Summarizing several pages later, Borchard states:

The only proper criterion which courts should apply is the utility of the declaration in terminating “the uncertainty or controversy giving rise to the proceeding.” It is the adequacy and utility of the declaratory judgment, not of another remedy, which is determinative. Expressed in a different way, the court must be convinced that the declaration will serve a useful purpose.

Id. at 308. This concept of declaratory relief is precisely that which has been adopted by the Supreme Court:

But when all of the axioms have been exhausted and all words of definition have been spent, the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. While the courts should not be reluctant or niggardly in granting this relief in the cases for which it was designed, they must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, especialy [sic] in the field of public law. A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought which tuould reach far beyond the particular case. Such differences of opinion or conflicts of interest must be “ripe for determination” as controversies over legal rights. The disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.

Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 243-244, 73 S.Ct. 236, 97 L.Ed. 291 (1952) (emphasis added). I believe that no useful purpose would be served by granting the declaratory judgment requested here and that the District Court thus properly declined to grant it.

The Supreme Court’s recent decision ¹⁶ distinguishing a criminal suspect’s right to counsel at a lineup conducted before or after commencement of a formal “criminal prosecution” would make any general declaration concerning what information must be provided to counsel at every lineup a wholly futile exercise — in that decision the Court has authorized the conduct of many lineups without the presence or aid of counsel. Any Sixth Amendment basis for appellant’s requested declaration has therefore been seriously undercut.

A Fifth Amendment due process justification would seem to be a particularly inappropriate basis for declaratory relief. In Stovall, supra note 13, the Supreme Court held that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it,” 388 U.S. at 302, 87 S.Ct. at 1972 and this basic approach to due process in the context of pre-trial identifications was reiterated in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 347 (1968): “[W]e hold that each case must be considered on its own facts. . . .” After reviewing this line of decisions we found, sitting en banc in Clemons, supra note 13, 133 U.S.App.D.C. at 34, 408 F.2d at 1237 (emphasis added):

[T]he resolution of due process claims, both past and future, remains for us, as it was for the Supreme Court in Stovall, Simmons, and Big-gers [Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968)] an inescapable duty. That affirmances were the result in all those cases may or may not be significant, but, in any event, we think the Court has formulated a broad standard of review which focuses upon the distinctive facts of each case in their totality, and which relies very heavily upon the special capacity and experience of judges, trial and appellate, to discriminate between real and fancied dangers of the miscarriage of justice.

Since the due process inquiry into the totality of the circumstances surrounding identification confrontations is necessarily so individualized by the particular facts presented, I consider that general declaratory relief in advance of such confrontations would be improper.

In addition to the difficulty of formulating a rationally supportable declaration in the context of the near-infinite variety of factual situations capable of existing in lineups, the very nature of our criminal procedure and the wide variance of the factual contexts of lineups and the important nuances thereof would make a judgment virtually useless. Despite the presumed res judicata effect of a class action declaratory judgment on any of the issues appellant seeks to resolve in this suit, in practical terms no defendant in a subsequent criminal prosecution would be bound thereby — in other words, regardless of this judgment no trial court could properly refuse to hear an argument that these procedures as applied in the factual circumstances of any given defendant’s case, operated to deprive him of his right to due process of law. In brief, the declaratory judgment requested here would not as a practical matter guarantee that the lineup questions here presented would be finally terminated and settled in any actual criminal prosecution. Under such circumstances the declaration requested would be of very limited utility as it could be attacked and relitigated in practically every criminal case.

Under these circumstances the District Court was fully justified in dismissing this request for declaratory relief. That dismissal was well within the scope of his discretion to grant or deny such relief. The judgment of the District Court is, therefore,

Affirmed.

1 . This was a so-called “Adams order” issued pursuant to procedures suggested by our opinion in Adams v. United States, 130 U.S.App.D.C. 203, 207-208, 399 F.2d 574, 578-579 (1968).

2 . Spriggs v. Wilson, 136 U.S.App.D.C. 177, 419 F.2d 759 (1969).

3 . Appellant was nonetheless charged with that second robbery, and a third, in a nine-count indictment. The six counts relating to the second and third robberies were dismissed upon the Government’s motion on February 10, 1970 when the District Court suppressed all identification evidence pertaining thereto following a pre-trial hearing. Appellant was acquitted by a jury on April 24, 1970 on the remaining three counts of the indictment.

4 . Rule 23(c) (1) requires that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” (Emphasis added.)

5 . Fed.R.Civ.P. 23(e) provides:

A class action shall not be dismissed or compromised without approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

Professor Moore notes, however, that “[t]liis notice requirement applies only to voluntary dismissals by the jdaintiff, and such notice is not a condition precedent to dismissal by the court for lack of jurisdiction or after a hearing on the merits.” 3B J. Moore, Federal Practice If 23.80 [3] (1969). Thus the Government’s contention on this particular point seems clearly wrong.

6 . See, e. g., Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911); Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944 (1970); Jeannette Rankin Brigade v. Chief of the Capitol Police, 137 U.S.App.D.C. 155, 421 F.2d 1090 (1969); Women Strike for Peace v. Hickel, 137 U.S.App.D.C. 29, 420 F.2d 597 (1969).

7 . Fed.R.Civ.P. 23(a) provides:

Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) • there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

8 . Fed.R.Civ.P. 23(b) (2) provides:

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition :

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief witli respect to the class as a whole.

9 . The Government relied on Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), as their principal authority for this proposition.

10 . Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n, 375 F.2d 648, 657 (4th Cir. 1967) (en banc); Gatling v. Butler, 52 F.R.D. 389, 394-395 (D.Conn. 1971); Vaughan v. Bower, 313 F.Supp. 37, 40 (D.Ariz.) (3-judge court), aff’d, 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129 (1970); Gaddis v. Wyman, 304 F.Supp. 713 (S.D.N.Y.1969) (following this procedural decision the merits of the case were decided by a 3-judge court, 304 F.Supp. 717, and the case was aff’d per curiam sub nom. Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38 (1970)).

11 . See, e. g., Powell v. McCormack, 395 U.S. 486, 518, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 93, 67 S.Ct. 556, 91 L.Ed. 754 (1947); 6A J. Moore, Federal Practice ¶ 57.08 [3] (1971).

12 . See, e. g., Golden v. Zwickler, 394 U.S. 103, 108, 110, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941); Davis v. Ichord, 143 U.S.App.D.C. 183, 189-190, 442 F.2d 1207, 1213-1214 (1970).

13 . Since the three major Supreme Court identification cases of 1967, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the suppression hearing has become virtually a regular procedure in criminal trials in this jurisdiction. Issues raised in such hearings have ultimately led to a substantial portion of the criminal appeals in this court. See, e. g., United States v. Ash, 149 U.S.App.D.C. 1, 461 F.2d 92 (1972) (en banc), cert. granted, 407 U.S. 909, 92 S.Ct. 2436, 32 L.Ed.2d 682 (1972); United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148 (1971); United States v. Greene, 139 U.S.App.D.C. 9, 429 F.2d 193 (1970); cf. the disposition of the case in Williams v. United States, 136 U.S.App.D.C. 158, 165, 419 F.2d 740, 747 (1969) (en banc); and this court’s procedural instructions in Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).

14 . Public Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952); Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942).

15 . Cunningham Bros. Inc. v. Bail, 407 F.2d 1165 (7th Cir.), cert. denied, 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 745 (1969); Larson v. General Motors Corp., 134 F.2d 450 (2d Cir.), cert. denied, 319 U.S. 762, 63 S.Ct. 1318, 87 L.Ed. 1713 (1943); see Employers’ Liability Assur. Corp. v. Mitchell, 211 F.2d 441 (5th Cir.), cert. denied, 347 U.S. 1014, 74 S.Ct. 869, 98 L.Ed. 1137 (1954).

16 . Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).