The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
This lawsuit challenges actions by Todd Dillard, the former Marshal of the Superior Court of the District of Columbia, the United States Marshal Service ("USMS"), and the District of Columbia. Plaintiffs complain that from December 2, 1999 to April 25, 2003 (the "Class Period"), the Superior Court Marshal subjected all female (but not male) arrestees*fn1 to blanket drop, squat, and cough strip searches, without an individualized finding of reasonable suspicion, and that the District of Columbia knew or should have known about the illegal searches but nonetheless presented its arrestees to the Superior Court Marshal. On this factual predicate, Plaintiffs have filed a Motion for Class Certification [Dkt. # 138]. Plaintiffs propose certification of a "Fifth Amendment Class," based on alleged violations of the equal protection component of the Fifth Amendment to the U.S. Constitution, composed of all female arrestees, regardless of charge, taken to the Superior Court for presentment during the Class Period,*fn2 and a "Fourth Amendment Class," composed of female arrestees, arrested on charges not involving weapons, drugs, or felony violence, who were taken to the Superior Court for presentment during the Class Period.*fn3
Plaintiffs also seek to certify an "Alternative Fourth Amendment Class," complaining that the Superior Court Marshall subjected all arrestees, males as well as females, to the blanket drop, squat, and cough strip searches, and that the District of Columbia knew or should have known about the illegal searches, but handed its arrestees over to the Superior Court Marshal during the Class Period anyway.
Plaintiffs argue that each class -- the Fifth Amendment Class, the Fourth Amendment Class, and the Alternative Fourth Amendment Class -- separately meets the requirements as a "hybrid" class. See Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997) (courts may adopt a "hybrid" approach, certifying a Federal Rule of Civil Procedure 23(b)(2) class as to the claims for declaratory or injunctive relief, and a 23(b)(3) class as to the claims for monetary relief, effectively granting 23(b)(3) protections including the right to opt out to class members at the monetary relief stage). Plaintiffs seek injunctive and monetary relief against the District of Columbia and former Superior Court Marshal Dillard, and injunctive relief only against the USMS.
Marshal Dillard and the USMS (collectively, the "Federal Defendants") and the District of Columbia oppose the motion entirely, arguing, inter alia, that there is no live controversy and that the Plaintiffs lack standing to represent the interest of any future arrestees for purposes of injunctive relief. The District of Columbia further argues that Plaintiffs cannot meet the "adequacy of representation" requirement of Federal Rule of Civil Procedure 23(a)(4). For the reasons that follow, the motion will be granted in part and denied in part.
This case has been pending for over five years. The Plaintiffs and the United States first strove mightily, with yeoman help from the District of Columbia, to identify the female arrestees during the Class Period and then to reach a settlement. Only when those efforts failed unexpectedly did it become necessary to complete discovery and prepare for trial.
Plaintiffs allege that almost 16,000 female arrestees were subjected to the drop, squat, and cough strip searches during the period from December 2, 1999, three years before the Complaint was filed, to April 25, 2003, the date Federal Defendants allege they stopped the practice. Pls.' Mem. at 2, Ex. 24 (Kriegler Aff. ¶ 11).
Courts routinely certify strip search class actions similar to this one. See, e.g., Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 461 F.3d 219 (2d Cir. 2006); Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004); Dodge County of Orange, 226 F.R.D. 177 (S.D.N.Y. 2005); Blihovde v. St. Croix County, 219 F.R.D. 607, 622-23 (W.D. Wis. 2003); Bynum v. District of Columbia, 217 F.R.D. 43 (D.D.C. 2003); Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y. 2002).
The "party requesting class certification under Rule 23 bears the burden of showing the existence of a class, that all prerequisites of Rule 23(a) are satisfied and the class falls within one of the categories of Rule 23(b)." Bynum v. District of Columbia, 214 F.R.D. 27, 30-31 (D.D.C. 2003) (citations omitted).
Under Rule 23(a) of the Federal Rules of Civil Procedure, there are four requirements for certification of a class:
1. the class is so numerous that joinder of all members is impracticable ("numerosity");
2. there are questions of law or fact common to the class ("commonality");
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class ("typicality"); and
4. the representative parties will fairly and adequately protect the interests of the class ("adequacy").
Fed. R. Civ. P. 23(a). Plaintiffs must also satisfy at least one of the subdivisions of Rule 23(b). A plaintiff satisfies Rule 23(b)(2) by showing: the party opposing the class had 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.
Fed. R. Civ. P. 23(b)(2). A plaintiff satisfies Rule 23(b)(3) by showing:
(1) the questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Fed. R. Civ. P. 23(b)(3).
In deciding a motion for class certification, the "inquiry does not extend to an examination of the merits of the case. Instead, the legal standard is whether the evidence presented by plaintiffs establishes a 'reasonable basis for crediting [plaintiffs'] assertions.'" Bynum, 214 F.R.D. at 31 (citing cases); Chang v. United States, 717 F.R.D. 262, 269 (D.D.C. 2003) ("Once the existence of a class has been established, the Court does not consider the merits of the plaintiffs' claims prior to proceeding to a determination of whether the requirements for class certification set forth in Fed. R. Civ. P. 23(a) and (b) have been met."). The determination of whether to certify a matter as a class action must be done "at an early practicable time" in the case. See Fed. R. Civ. P. 23(c)(1)(A).
The Federal Defendants resist class certification. Only two of their arguments are serious: First, they contend that there is no live controversy, because Marshal Dillard has retired and the USMS has ceased the practice (i.e., the case is moot); and second, the Federal Defendants contend that the named Plaintiffs do not have standing to ...