                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

 CANEISHA MILLS, et al.,                          )
                                                  )
                       Plaintiffs,                )
                                                  )
                v.                                )   Civil Case No. 08-1061 (RJL)
                                                  )
 DISTRICT OF COLUMBIA,                            )
                                                  )
                       Defendant.                 )
                                                  )

                                               ~t::
                                 MEMORANDUM ORDER
                                  (March 3.1, 2010 [#7])

       The plaintiffs are four citizens of the District of Columbia, and they have brought

this suit challenging the constitutionality of the District's Neighborhood Safety Zone

("NSZ") program. In addition to their plaintiff-specific claims for damages, the plaintiffs

have asked the Court to declare the NSZ program unconstitutional and to enjoin further

operation of the program on that basis. They also seek an order requiring the District to

expunge any information collected by law enforcement as a result of the NSZ

checkpoints.

       Now before the Court is the plaintiffs' Motion for Class Certification Under

Federal Rules of Civil Procedure 23(b)(l) and 23(b)(2) [#7]. The plaintiffs' propose the

certification of two classes. The first class consists of "[ a] 11 residents of the District of

Columbia who possess a motor vehicle operator or 'driver's' license." (Mot. for Class

Cert. [#7] at 1). According to the plaintiffs, this class is entitled to an injunction barring

the District from any further implementation of the NSZ program. (Jd.). The second
class consists of "[ a]11 motor vehicle operators who have been stopped at NSZ

checkpoints." (Id.). The plaintiffs claim that this class is entitled to an injunction

requiring the District to expunge any information about the class members collected at

the checkpoints. (Id.). Even though the plaintiffs have, strictly speaking, satisfied the

criteria in Rule 23 for establishing eligibility for class certification, the Court sees no

need to certify the proposed classes given that the plaintiffs raise a facial challenge to the

NSZ program. An injunction predicated on the facial invalidation of the program affords

complete protection, not only to the proposed class members, but to all others potentially

affected by the program as well. Accordingly, for the reasons detailed below, the Court

will exercise its considerable discretion over class certification and DENY the plaintiffs'

motion.

       To bring a class action under Rule 23, a plaintiff must show: (1) that "the class is

so numerous that joinder of all members is impracticable," (2) that "there are questions of

law or fact common to the class," (3) that "the claims or defenses of the representative

parties are typical of the claims or defenses of the class," and (4) that "the representative

parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a).

In addition to satisfying the criteria of Rule 23(a), a plaintiff seeking class certification

must also show that the class is maintainable under Rule 23(b). The plaintiffs in this case

contend that their proposed class qualifies under Rule 23(b)(1) or Rule 23(b )(2). J (Mot.

for Class Cert. [#7-1] at 5-6).



       Rule 23(b)(1) provides for class certification if prosecuting separate actions
       I

would create a risk of "(A) inconsistent or varying adjudications with respect to

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       The Court is satisfied that the plaintiffs have met the Rule 23 criteria for class

certification. First, the scope of both classes is sufficiently broad that the joinder of all

class members would indeed be impracticable. Second, because the plaintiffs attack the

constitutionality of the NSZ program on its face and because the resolution of that issue

does not tum on any facts unique to individual class members, the legal question at issue

and the facts needed to resolve it are common to each class. Third, for the same reason,

the claims of the class representatives are identical to those of the class. Fourth, although

there is some disagreement about whether the class representatives can fairly and

adequately protect the interests of the two classes given that some class members favor

the NSZ program, "diversity of opinion within a class does not defeat class certification."

Waters v. Barry, 711 F. Supp. 1125, 1131 (D.D.C. 1989); see also Lanner v. Wimmer,

662 F.2d 1349, 1357 (lOth Cir. 1981) ("The fact that the class may have included persons

who support the [challenged] program does not offend [Rule 23]. It is not' fatal if some

members of the class might prefer not to have violations of their rights remedied''').

Finally, the Court finds that a class action is maintainable under Rule 23(b )(2) because

the NSZ program applies generally to each class such that an injunction prohibiting




individual class members" or "(B) adjudications with respect to individual class members
that, as a practical matter, would be dispositive of the interests of other members not
parties to the individual adjudications." Fed. R. Civ. P. 23(b)(l). Rule 23(b)(2) provides
for class certification if "the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P.
23(b)(2).

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further implementation of the program and expunging any information obtained by virtue

of the program would benefit all members of both classes. 2

       Even though the proposed classes satisfy the eligibility criteria in Rule 23, the

Court may nevertheless deny class certification based on other relevant considerations.

District courts have "broad discretion in deciding whether to permit a case to proceed as a

class action." Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994). This discretion

includes taking account of factors not expressly delineated in Rule 23. One factor that

courts often consider is whether there is a need for class certification. Although

establishing need is not a mandatory prerequisite,3 it is not uncommon for courts, in

exercising their discretion, to deny class certification on that basis when the particular

facts and circumstances of the case warrant doing so. See, e.g., Kan. Health Care Ass 'n

v. Kan. Dep't a/Soc. and Rehab. Servs., 31 F.3d 1536, 1548 (lOth Cir. 1994) (affirming

the district court's decision to deny class certification on the ground that "class

certification is unnecessary if all the class members will benefit from an injunction issued

on behalf of the named plaintiffs" (internal quotation marks omitted»; Davis v. Smith,

607 F.2d 535,540 (2d Cir. 1978) ("Where retroactive monetary relief is not at issue and

the prospective benefits of declaratory and injunctive reliefwill benefit all members of a

proposed class to such an extent that the certification of a class would not further the



       2  Having concluded that the plaintiffs' class action is maintainable under Rule
23(b )(2), the Court need not consider whether it is also maintainable under Rule 23(b)( I).
        3 See, e.g., Disability Rights Council a/Greater Wash. v. Wash. Metro. Area

Transit Auth., 239 F.R.D. 9, 23 (D.D.C. 2006) (stating that "the idea that a class may be
certified only if 'necessary' flies in the face of the Federal Rules" (internal quotation
marks omitted»; Littlewolfv. Hodel, 681 F. Supp. 929, 937 (D.D.C. 1988) (same).

                                              4
implementation of the judgment, a district court may decline certification."); Sargent v.

Block, 576 F. Supp. 882, 888 (D.D.C. 1983) ("[T]he Court finds that class certification is

unnecessary in this action since the defendants are government officials and the

declaratory and injunctive relief sought by the named plaintiffs would benefit all

proposed class members.").

       Class certification is particularly unnecessary where, as here, "the suit is attacking

a statute or regulation as being facially unconstitutional." Alliance to End Repression v.

Rochford, 565 F .2d 975, 980 (7th Cir. 1977). In that circumstance, "there would appear

to be little need for the suit to proceed as a class action" because "it can be assumed that

if the court declares the statute or regulation unconstitutional then the responsible

government officials will discontinue the [regulation's] enforcement." Id. The plaintiffs'

constitutional challenge in this case does not tum on any fact particular to the proposed

classes. There is no suggestion, for instance, that the NSZ program is unconstitutional as

applied to the class members but might be constitutional as applied to others. To the

contrary, the gravamen of the plaintiffs' claim is that the NSZ program, as it is presently

configured, is unconstitutional in all circumstances. Indeed, the first proposed class is

underinclusive to the extent that it excludes those who reside outside of the District but

operate motor vehicles in the District. If the Court declares the NSZ program facially

unconstitutional and, on that basis, enjoins the district from operating the program, all

proposed class members would certainly benefit but so too would non-class members

who travel in the District and are potentially subject to the program. In addition, if the

Court requires the District to expunge all information gathered pursuant to the facially

                                              5
unconstitutional NSZ program, then all members of the second proposed class would be

protected, whether or not the Court actually certifies the class. In short, the relief sought

by the named plaintiffs by virtue of their facial challenge affords sufficient protection to

the proposed class members and to others affected by the NSZ program, thereby making

class certification in this particular context wholly unnecessary. Given that the plaintiffs

challenge the program on its face, the Court fails to see what would be achieved by

certifying the proposed classes other than to needlessly burden this litigation.

       Therefore, for the reasons set forth above, it is hereby

       ORDERED that the plaintiffs' Motion for Class Certification Under Federal

Rules of Civil Procedure 23(b)(1) and 23(b)(2) [#7] is DENIED.

      SO ORDERED.



                                                           ~




                                                 ~United States District Judge




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