Pappas v. Metropolitan Police Department of the District of Columbia

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STEVE PAPPAS, et al., : : Plaintiffs, : Civil Action No.: 19-2800 (RC) : v. : Re Document No.: 86 : DISTRICT OF COLUMBIA, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR NOTICE

I. INTRODUCTION

Plaintiffs, a certified class of current and former D.C. Metropolitan Police Department

officers, are suing Defendants alleging that Defendants violated the Americans with Disabilities

Act. Plaintiffs move this Court to issue an Order directing that notice be sent to members of the

class certified in this case informing class members that this case is proceeding for injunctive

relief and that, if class members seek other relief, class members must take additional action.

See generally Pls.’ Mot. Notice, ECF No. 86. Plaintiffs also ask this Court to apply the doctrine

of vicarious exhaustion of administrative remedies to all members of the class who intervene in

this case. See id. at 4. In response, Defendants contend that providing class members with

notice is costly and unnecessary and that applying the doctrine of vicarious exhaustion on a

class-wide basis is inappropriate. See Defs.’ Opp’n Mot. Notice, ECF No. 88.

II. BACKGROUND

The Court assumes familiarity with the factual and procedural background related in

Pappas v. Dist. Columbia (“Pappas I”), 513 F. Supp. 3d 64, 74–77 (D.D.C. 2021) and Pappas v. Dist. Columbia (“Pappas II”), No. 19-cv-2800, 2024 WL 1111298, at *1–2 (D.D.C. Mar. 14,

2024). As relevant here, in Pappas II, the Court denied Plaintiffs’ motion to certify a class

pursuant to Federal Rule of Civil Procedure 23(b)(3) but granted Plaintiffs’ motion to certify a

class pursuant to Federal Rule of Civil Procedure 23(b)(2). See Pappas II, 2024 WL 1111298, at

*1, *10–16.

Now that a 23(b)(2) class has been certified, Plaintiffs move the Court to issue an order

directing that “court-approved notice [be sent] to members of the certified class of their right to

pursue their damages claims individually.” Pls.’ Mot. Notice at 1. Plaintiffs also ask the Court

to hold, and inform class members, that “they need not file their own charge of discrimination

with the U.S. Equal Employment Opportunity Commission to challenge MPD’s involuntary

retirement policy,” because class members’ claims have been vicariously exhausted by named

Plaintiff Pappas. Id. at 4. In response, Defendants argue that providing notice to absent class

members is both costly and unnecessary under governing law. See Defs.’ Opp’n Mot. Notice at

1–2. Defendants also argue that applying the doctrine of vicarious exhaustion of administrative

remedies to all class members who intervene would be inappropriate given that intervening class

members may have issues in their individual cases that make their claims distinguishable from

the claims that were exhausted by Plaintiff Pappas, and therefore ineligible for vicarious

exhaustion. See id. at 7–8.

III. ANALYSIS

A. Class Notice

Under Federal Rule of Civil Procedure 23(c), “[f]or any class certified under Rule

23(b)(1) or (b)(2), the court may direct appropriate notice to the class” whereas for classes

certified under Rule 23(b)(3), “the court must direct to class members the best notice that is

2 practicable under the circumstances.” Fed. R. Civ. P. 23(c). Rule 23(c) therefore makes notice

(and opt out) discretionary for (b)(1) and (b)(2) classes. Id.; see also Eubanks v. Billington, 110

F.3d 87, 94 (D.C. Cir. 1997) (holding that “the language of Rule 23 is sufficiently flexible to

afford district courts discretion to grant opt-out rights in (b)(1) and (b)(2) class actions”); In re

Monumental Life Ins. Co., 365 F.3d 408, 417 (5th Cir. 2004) (“A district court is empowered by

rule 23(d)(2) to provide notice and opt-out for any class action.”); Pate v. United States, 328 F.

Supp. 2d 62, 70 (D.D.C. 2004) (“Rule 23(b)(2) has been interpreted, consistent with due process,

as leaving notice to the discretion of the trial court, especially where the defendant’s alleged

actions have affected the plaintiff class in generally the same manner.”).

Although notice is not required for classes certified pursuant to Rule 23(b)(2), courts

have approved of notice in cases where classes were certified under Rule 23(b)(2). See, e.g.,

Keepseagle v. Johanns, 236 F.R.D. 1, 4 (D.D.C. 2006) (providing for opt out in a certified (b)(2)

class alleging racial discrimination in the processing of USDA loan and benefits applications);

see also McReynolds v. Richards-Cantave, 588 F.3d 790, 800 (2d Cir. 2009) (“The right of a

class member to opt-out in Rule 23(b)(1) and (b)(2) actions is not obvious on the face of the rule;

however, ‘the language of Rule 23 is sufficiently flexible to afford district courts discretion to

grant opt-out rights in (b)(1) and (b)(2) class actions.’” (quoting Eubanks, 110 F.3d at 94));

LaFlamme v. Carpenters Local No. 370 Pension Plan, 212 F.R.D. 448, 459 (N.D.N.Y. 2003)

(“Even though due process is assumed to be satisfied when a class is certified under Rule

23(b)(2), apprising prospective class members of this Order and the general legal issues involved

in this case and, most importantly, that their rights will be affected by resolution of this case,

seems to be a reasonable measure unharmful to either side.”). “If the court decides that notice is

appropriate, it also need not require notice to be made in the same manner as in a (b)(3) action by

3 individual notice, because there is no right to request exclusion from (b)(1) and (b)(2) classes.” 1

McLaughlin on Class Actions § 5:21 (20th ed. 2023).

Providing notice and opt-out rights to absent class members is appropriate where doing

so is consistent with “basic fairness.” Eubanks, 110 F.3d at 99. In particular, providing class

members with notice and a chance to opt out of the class must be consistent with “the range of

fairness considerations that may enter into” the determination of class notice. Id. at 98. These

considerations can include whether providing notice and allowing opt out rights has the

“potential [to] prejudice [] the prospects for classwide recovery” and whether the “monetary

claims of the class members [are] insufficiently cohesive to warrant collective treatment.” Id.;

see also Cobell v. Salazar, No. 96-cv-01285, 2011 WL 13248995, at *1 (D.D.C. Sept. 13, 2011)

(explaining that providing for notice and opt out rights is appropriate where “necessary to

facilitate the fair and efficient conduct of the action because the assumption of cohesiveness

underlying certification of a (b)(2) class is inapplicable to the individual class member’s claims

for monetary damages or if the court determines that particular plaintiff’s claims are unique or

sufficiently distinct from the claims of the class as a whole”).

Courts in this District have also explained that procedural fairness requires “some sort of

notice” where “individual [23(b)(2) class] members could [otherwise] have . . . the opportunity

to add [other] claims to the suit or to opt-out of the class to pursue their claims for monetary

relief in a separate action.” Pate, 328 F. Supp. 2d at 73. This is so because, if a class member

who could otherwise bring a damages claim does not opt out of the 23(b)(2) class, they may later

be barred “from ever re-litigating the same claims or the issues pertinent to [the 23(b)(2) class]

judgment.” Id. at 69; see also Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 874

(1984) (explaining that “[a] judgment in favor of the plaintiff class extinguishes their claim,

4 which merges into the judgment granting relief,” while a “judgment in favor of the defendant

extinguishes the claim, barring a subsequent action on that claim”); but see Norris v. Slothouber,

718 F.2d 1116, 1117 (D.C. Cir. 1983) (explaining that “[a] suit for damages is not precluded by

reason of the plaintiff’s membership in a class for which no monetary relief is sought”).

Here, providing absent class members with notice is consistent with due process

principles and basic fairness. Because the Court certified only a 23(b)(2) class, damages claims

are unavailable to the class in this case but there is a risk that after this case concludes, absent

class members will be barred by res judicata in future individual suits—if they were to file

individual suits—from pursuing damages claims. McAdams v. Robinson, 26 F.4th 149, 161 (4th

Cir. 2022) (explaining that “[i]t is well settled that a court adjudicating a class action cannot

predetermine the res judicata effects of its own judgment; that can only be determined in a

subsequent suit” (quoting Pelt v. Utah, 539 F.3d 1271, 1285 (10th Cir. 2008)); Harrison v.

Lewis, 559 F. Supp. 943, 947 (D.D.C. 1983) (“In general, the court conducting a class action

cannot predetermine the res judicata effect of its judgment.”). Indeed, it appears that Plaintiffs

seek to provide notice to absent class members to protect them from the potential claim

preclusive effect of this litigation. See Pls.’ Mot. Notice at 3 (“[N]otice is appropriate because it

will protect the class members’ financial interests and rights.”).

Although “notice is not necessary to bind absent class members in a 23(b)(2) class action

seeking only injunctive and declaratory relief, due process does require notice before the

individual monetary claims of absent class members may be barred.” Pate, 328 F. Supp. 2d at

73–74 (quoting Johnson v. Gen. Motors Corp., 598 F.2d 432, 433 (5th Cir. 1979)). Given the

risk that a future court would bar absent class members’ individual damages claims—if those

class members were to seek damages in future individual suits—the Court believes that it is

5 consistent with due process to provide absent class members with notice and an opportunity to

intervene or seek to opt out of the class certified in this case. C.f. id. (holding that a plaintiff’s

claim was not barred by res judicata where plaintiff had no notice or chance to opt out of

23(b)(2) class). Moreover, it does not appear that providing absent class members with notice

has the “potential [to] prejudice [] the prospects for classwide recovery” because the class

certified here is certified with respect to declaratory and injunctive relief that is capable of

changing Defendants’ conduct regardless of the number of class members. Eubanks, 110 F.3d at

99. Additionally, as the Court discussed in its earlier opinion, see Pappas II, 2024 WL 1111298,

at *10–12, any “monetary claims of the class members were insufficiently cohesive to warrant

collective treatment,” which is why the Court did not certify a 23(b)(3) class, Eubanks, 110 F.3d

at 99.

Given the fairness considerations at issue in this case, the Court concludes that providing

the class with notice and informing class members of the need to intervene or opt out to preserve

their rights to pursue individual relief is appropriate. See Keepseagle, 236 F.R.D. at 5

(permitting class members to opt out of 23(b)(2) class where “forcing them to remain in th[e]

class [would] rob them of a meaningful opportunity to present the merits of their individual

claims.” (quotation marks and citation omitted)). Moreover, given the size of the class involved

in this case, it does not appear that providing notice to the class will be particularly costly. See

Pappas II, 2024 WL 1111298 at * 3 (estimating size of class at 100 members). The cost to

Defendants of providing notice is also minimal here because “the representative plaintiff

. . . bear[s] all costs relating to the sending of notice because it is he who seeks to maintain the

suit as a class action,” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 359 (1978), and

Defendants have indicated that “[t]o the extent Defendants have contact information for the class

6 members, they are more than willing to provide it to Plaintiffs,” Defs.’ Opp’n Mot. Notice at 4;

see also Pls.’ Reply Supp. Mot. Notice at 1, ECF No. 89 (“Plaintiffs are asking defendants to

provide names and addresses, which would not cost the District money.”). The Court therefore

concludes that providing notice to the class is appropriate.

The parties disagree about the wording of the class notice, and Defendants point to parts

of Plaintiffs’ proposed notice that, they say, are misleading. Accordingly, the Court directs the

parties to meet and confer regarding what should be contained in the notice and how it should be

sent to putative class members. 1 The parties will thereafter file a joint status report with a joint

proposed notice attached.

B. Vicarious Exhaustion of Administrative Remedies

Plaintiffs also request that the Court apply the doctrine of vicarious exhaustion of

administrative remedies to the claims of all class members who intervene in this case—and

include a statement to that effect in the notice. See Pls.’ Mot. Notice at 4–5. The doctrine of

vicarious exhaustion

functions as an exception to the ordinary requirement that each plaintiff must have exhausted administrative remedies. It allows an individual to treat her claim as having been exhausted, notwithstanding her failure personally to have done so, if her claim and that of a person who did personally exhaust are so similar that it can fairly be said that no conciliatory purpose would be served by filing separate administrative claims.

1 The Court observes that notice for a 23(b)(2) class need not “be made in the same manner as in a (b)(3) action,” 1 McLaughlin on Class Actions § 5:21, and that email notice may be the most practical and cost effective form of notice in this case, see Advisory Committee Notes on 2018 Amendment, Fed. R. Civ. P. 23 (“[I]t may sometimes be true that electronic methods of notice, for example email, are the most promising.”); Advisory Committee Notes on 2003 Amendment, Fed. R. Civ. P. 23 (“When the court does direct certification notice in a (b)(1) or (b)(2) class action, the discretion and flexibility established by subdivision (c)(2)(A) extend to the method of giving notice.”).

7 Barkley v. U.S. Marshals Serv. ex rel. Hylton, 766 F.3d 25, 34 (D.C. Cir. 2014) (cleaned up). As

this Court has previously explained, “[v]icarious exhaustion is available only to parties whose

claims are so similar to those asserted by the original plaintiff that no purpose would be served

by requiring them to file independent charges.” Pappas I, 513 F. Supp. 3d at 78 (quotation

marks and citation omitted). “Thus, in order for vicarious exhaustion to apply, the original

EEOC charge must: (1) put the employer-defendant on notice of all charges by the similarly

situated plaintiff, and (2) provide the employer and the EEOC with an opportunity for

administrative consolidation and resolution.” Id. (quotation marks and citation omitted).

Because the claims of class members who seek to intervene may require individualized

determinations due to differences in their claims from that of Plaintiff Pappas, see Pappas II,

2024 WL 1111298, at *11 (denying certification of 23(b)(3) class given individualized

determinations required for claims of individual class members), the Court cannot conclude ex

ante that Plaintiff Pappas’s EEO filing “could have put the EEOC or MPD on notice regarding

[intervening class members’] claims, or provided the MPD and EEOC with an opportunity for

administrative consolidation and resolution.” See Pappas I, 513 F. Supp. 3d at 81. But such a

conclusion would be required to apply the doctrine of vicarious exhaustion to the claims of all

class members who seek to intervene. Thus, the Court will need to analyze the claims of class

members who intervene individually to determine whether their claims are sufficiently similar to

the Plaintiff Pappas’s claims such that vicarious exhaustion applies. Accordingly, the Court will

not grant Plaintiffs’ motion to treat all intervening class members’ claims as vicariously

exhausted. See Byrd v. District of Columbia, 807 F. Supp. 2d 37, 63 (D.D.C. 2011) (explaining

that purported similarity of claims in question must be “evaluated for whether the original filing

performs the principal notice function of the EEOC filing requirement”). Rather, if any class

8 member seeks to intervene, the Court can address the issue of vicarious exhaustion of

administrative remedies—if raised and relevant—at that time.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion (ECF No. 86) is GRANTED in part and

DENIED in part. The Parties shall meet and confer about the precise language of the notice and

provide the Court with a status report proposing the notice’s language on or before September

25, 2024; 14 days after the Court approves the notice, Defendants shall provide Class Counsel

with the last-known mail and email addresses for all class members; 14 days after Class Counsel

receive the addresses, Class Counsel shall send the notice to class members; and the deadline for

absent class members to intervene in this case shall be 90 days after Class Counsel sends notice

to the class members. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: August 29, 2024 RUDOLPH CONTRERAS United States District Judge