UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA CANEISHAMILLS, 

### etal., ) 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 ofthe District ofColumbia, and they have brought this suit challenging the constitutionality ofthe District's Neighborhood Safety Zone ("NSZ") program. 

### In addition to theirplaintiff-specific claims for damages, the plaintiffs have asked the Court to declare the NSZ program unconstitutional and to enjoin further operation ofthe program on that basis. They also seek an order requiring the District to expunge any information collected by law enforcement as a result ofthe NSZ checkpoints. Now before the Court is the plaintiffs' Motion for Class Certification Under Federal Rules ofCivil Procedure 23(b)(l) and 23(b)(2) [#7]. The plaintiffs' propose the certification oftwo classes. The first class consists of"[a]11 residents ofthe District of Columbiawho possess a motor vehicle operator or 'driver's' license." (Mot. for Class Cert. [#7] at 1). According to the plaintiffs, this class is entitledto an injunction barring the District from any further implementation ofthe NSZ program. (Jd.). The secondclass consists of"[a]11 motorvehicle operators who have been stopped atNSZ checkpoints." (Id.). Theplaintiffs claim that this class is entitled to an injunction requiringthe District to expunge any information aboutthe 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 ofthe program affords completeprotection, not only to the proposed class members, butto 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 DENYthe plaintiffs' motion. To bring a class action underRule 23, aplaintiffmust show: (1) that "the class is

so numerous thatjoinderofall members is impracticable," (2) that "there are questions of law or fact common to the class," (3) that "the claims or defenses ofthe representative parties are typical ofthe claims or defenses ofthe class," and (4) that "the representative parties will fairly and adequately protect the interests ofthe class." Fed. R. Civ. P. 23(a). In addition to satisfying the criteria ofRule 23(a), a plaintiffseeking class certification must also showthat the class is maintainable underRule 23(b). The plaintiffs in this case contend thattheirproposed class qualifies under Rule 23(b)(1) or Rule 23(b)(2). J (Mot. for Class Cert. [#7-1] at 5-6).

IRule 23(b)(1)provides for class certification ifprosecuting separate actions would create a risk of"(A) inconsistent or varying adjudications with respect to 2The Court is satisfied thatthe plaintiffs have met the Rule 23 criteria for class certification. First, the scope ofboth classes is sufficiently broad that thejoinder ofall class members would indeed be impracticable. Second, because the plaintiffs attack the constitutionality ofthe NSZ program on its face and because the resolution ofthat 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 ofthe class representatives are identical to those ofthe class. Fourth, although there is some disagreement about whether the class representatives can fairly and adequately protect the interests ofthe two classes given that some class members favor the NSZprogram, "diversity ofopinion 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 ifsome members ofthe class might prefernot to have violations oftheir rights remedied'''). Finally, the Court finds that a class action is maintainable underRule 23(b)(2) because the NSZprogram applies generally to each class such that an injunction prohibiting

individual class members" or "(B) adjudications with respectto individual class members that, as a practical matter, would be dispositive ofthe interests ofother members not parties to the individual adjudications." Fed. R. Civ. P. 23(b)(l). Rule 23(b)(2) provides for class certification if"theparty opposing the class has acted orrefused to act on grounds that apply generally to the class, so that final injunctive reliefor corresponding declaratory reliefis appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). 3further implementation ofthe program and expunging any information obtained by virtue ofthe program would benefit all members ofboth classes.2 Even though the proposed classes satisfy the eligibility criteria in Rule 23, the Court may nevertheless deny class certification based on otherrelevant 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 offactors not expressly delineated in Rule 23. One factor that courts often consider is whetherthere 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 ofthe case warrant doing so. See, e.g., Kan. Health CareAss 'n

v. Kan. Dep'ta/Soc. andRehab. 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 ifall the class members will benefit from an injunction issued

on behalfofthe named plaintiffs" (internal quotation marks omitted»;Davis v. Smith, 607 F.2d 535,540 (2d Cir. 1978) ("Where retroactive monetary reliefis not at issue and the prospectivebenefits ofdeclaratory and injunctive reliefwill benefit all members ofa proposed class to such an extent that the certification ofa class would not further the

2Having concluded that the plaintiffs' class action is maintainable underRule 23(b)(2), the Court need not considerwhether it is also maintainable under Rule 23(b)(I). 3See, e.g., DisabilityRights Council a/Greater Wash. v. Wash. Metro. Area TransitAuth., 239 F.R.D. 9, 23 (D.D.C. 2006) (stating that "the ideathat a class may be certified only if'necessary' flies in the face ofthe Federal Rules" (internal quotation marks omitted»;Littlewolfv. Hodel, 681 F. Supp. 929, 937 (D.D.C. 1988) (same). 4implementation ofthejudgment, 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 reliefsoughtby the named plaintiffs would benefit all proposed class members."). Class certification is particularly unnecessary where, as here, "the suit is attacking

a statute orregulation as being facially unconstitutional." Alliance to EndRepression v. Rochford, 565 F.2d 975, 980 (7th Cir. 1977). In that circumstance, "there would appear to be little need for the suitto proceed as a class action" because "it canbe assumed that ifthe 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 particularto the proposed classes. There is no suggestion, for instance, that the NSZprogram is unconstitutional as applied to the class members but might be constitutional as applied to others. To the contrary, the gravamen ofthe 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 ofthe Districtbut operate motorvehicles in the District. Ifthe 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 subjectto the program. In addition, ifthe Court requires the District to expunge all information gathered pursuant to the facially 5unconstitutional NSZ program, then all members ofthe secondproposed class would be protected, whether or not the Court actually certifies the class. In short, the reliefsought by the namedplaintiffs by virtue oftheir facial challenge affords sufficientprotection to the proposed class members and to others affected by the NSZ program, thereby making class certification in this particular contextwholly unnecessary. Given thatthe plaintiffs challenge the program on its face, the Court fails to see what would be achieved by certifying the proposed classes otherthan 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 ofCivil Procedure 23(b)(1) and 23(b)(2) [#7] is DENIED. 

### SO ORDERED.**~**

# ~ United States DistrictJudge

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