The opinion of the court was delivered by: GASCH
This matter came before the Court upon defendants' motion to dismiss or, in the alternative, for summary judgment. Plaintiffs cross-moved for partial summary judgment. Also pending before the Court is plaintiffs' motion for certification of the class which plaintiffs seek to represent. In order to set the background for a discussion of the issues raised by these motions, a chronological development of the suit is set forth below.
Plaintiffs filed these two actions on September 26, 1973, seeking declaratory relief, an injunction and damages against the United States Air Force Academy (C.A. No. 1825-73) and the United States Naval Academy (C.A. No. 1826-73) for their alleged unconstitutional failure to consider women for appointment to those service academies. Extensive discovery followed.
On March 11, 1974, plaintiffs filed a motion, pursuant to local rule 1-13(b), to certify the class. On April 29, 1974, the defendants moved to dismiss the complaints, or, in the alternative, for summary judgment. At the same time, defendants also moved to consolidate the two actions. Plaintiffs cross-moved for summary judgment May 15, 1974, and a hearing was held June 4, 1974, at which time the motions were taken under advisement. On June 14, 1974, plaintiffs moved for a temporary restraining order, and a hearing was held that same day. By Order dated June 14, the Court denied the request for a temporary restraining order, for reasons set forth therein. At the same time, the Court ruled on defendants' motion for consolidation, granting the same insofar as the Naval and Air Force Academies were concerned.
The facts as presented by the various motions and oral arguments are as follows: Plaintiffs in each case are two Congressmen who have nominated female applicants for the respective academies. Also named as party plaintiff in each case is one female nominee. Plaintiffs allege that those individuals nominated who are female are routinely refused consideration for appointment to the Academy, to the detriment of their rights under the Equal Protection Clause of the Fourteenth Amendment and Due Process Clause of the Fifth Amendment to the Constitution.
Because oral argument could not be held until June 4, 1974, and the case having been taken under advisement at that time, plaintiffs moved for a temporary restraining order June 14, asking this Court to extend for 10 days the period open for possible appointment of women. The Court, finding no irreparable injury or probability of success on the merits, denied that motion.
The fundamental question raised by this lawsuit is whether or not plaintiffs suffer a deprivation of constitutional rights through the policy of the Air Force and Naval Academies. As will be seen below, this question is not susceptible to a simple solution. Before discussing this issue, however, the motion to certify the class will be dealt with.
Plaintiffs seek to maintain these suits as class actions, on behalf of "all past, present, and future female applicants to the U.S. Air Force [and Naval] Academy who have been, are being, and will be denied admission by the discriminatory practices complained of herein."
The class is of the type described by Fed.R.Civ.P. 23(b)(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 with respect to the class as a whole; . . . .
At the outset, it should be noted that plaintiffs' motion is untimely. Local rule 1-13(b) provides that "within 90 days after the filing of a complaint . . . plaintiff shall move for a certification under Rule [Fed.R.Civ.P.] 23(c)(1) . . . ." The complaints in these cases were filed September 26, 1973, but the motions to certify the class were not filed until March 11, 1974.
Proceeding to the merits of certifying the class, it can be seen that the group of people sought to be included is ill-defined, particularly with respect to those "future" members of the class. Notice, a desirable, although not required, element, would be impossible.
This Court adheres to the view that where injunctive and declaratory relief is requested, such relief, where appropriate, can be fashioned to run to the benefit of those sought to be included in the class.
In light of this, no compelling reason is presented to ...