Unpublished Disposition, 890 F.2d 420 (9th Cir. 1989)

MEMORANDUM^* 

This appeal involves nine consolidated cases filed as class action suits to challenge the rental practices at apartment complexes owned and operated by the defendants-appellees. Appellants allege that each of the challenged practices discriminates against tenants and potential tenants who wish to live with minor children. In each action, the class of parents and minor children challenges the maintenance of a sign at the rental premises which includes the words "adults only," "adults/no children," "adult apartments," or "adult living." The class contends that this practice violates Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3600 et seq., the California Unruh Civil Rights, Cal.Civ.Code Secs. 51 et seq., and Article 5.5 of the Los Angeles Municipal Code.

The lead plaintiff in each of these cases is the Fair Housing for Children Coalition (FHCC), which sued on behalf of itself, its members, and a class of parents and children allegedly harmed by the defendants-appellees' rental practices. Two months after the first nine test cases were filed, the class was certified pursuant to Fed. R. Civ. P. 23(b) (2) and later amended. The district court also granted partial summary judgment for the class on the pendent state law claims and issued a prohibitory injunction. Finally, the district court ordered the FHCC to name at least one injured individual for each case.

One month later, the cases were transferred to another district judge pursuant to General Order 224-F. The district court continued to press the FHCC to substitute injured individuals as named plaintiffs for each of the test cases. After lengthy evidentiary proceedings and careful review of the record, the district court concluded that the FHCC was incapable of identifying injured individuals. The court entered judgment vacating previous class certification orders, decertifying the classes for injunctive relief, dismissing the cases, and awarding costs to defendants. The district court also denied the class' request for recusal.

The FHCC attacks all these rulings and argues that they violate law of the case principles and the requirements of Rule 23. We review the district court's decision to dismiss de novo and its decision to decertify for abuse of discretion, and affirm.

Law of the Case Principles

The district judge emphasized in his decertification memorandum that his predecessor would have reached precisely the same determination. The FHCC, however, argues that the law of the case doctrine constrains a successor judge from reversing orders absent a showing that the predecessor's rulings were clearly erroneous or that changes have occurred since the issuance of such orders.

Appellants misunderstand the law of the case doctrine.

A decision of law, once made, becomes the "law of the case," and should not be changed absent clear error or changed circumstances. See United States v. Estrada-Lucas, 651 F.2d 1261, 1263-64 (9th Cir. 1980). Law of the case is not an "inexorable command," however. Kimball v. Callahan, 590 F.2d 768, 771-72 (9th Cir.), cert. denied, 444 U.S. 826 (1979). Furthermore, the law of the case doctrine applies only sparingly in class certification proceedings, for Rule 23(c) invests broad authority in the district court to alter and amend orders until entry of judgment.

The district court was not bound by law of the case here. The classes were certified quite early in the litigation on the basis of statements made by the FHCC. Significant new information surfaced during the next two years which cast doubt on the accuracy of those statements. For example, the district court noted the difficulties raised by the FHCC's inability to find class members to whom it could distribute settlement funds. The FHCC concedes, as it must, that no law of the case problem arises in the context of changed circumstances. The district court did not abuse its discretion in connection with law of the case doctrine when it decertified the class.¹ 

The Requirements of Rule 23

After decertifying the class, the district court dismissed the cases largely because the class in each had been decertified. The FHCC argues that the early determinations by the original district judge, particularly the grant of summary judgment, constitute judgment on the merits and so foreclose the decertification which mandated dismissal.

Before entry of final judgment on the merits, a district court's order respecting class status is not final or irrevocable, but rather, it is inherently tentative. Officers for Justice v. Civil Service Comm'n, 688 F.2d 615, 633 (9th Cir. 1982), cert. denied, 459 U.S. 1217 (1983) (citations omitted).

The FHCC is simply misguided when it characterizes the district court's early, tentative rulings as a determination of classwide liability. The predecessor district judge, himself, emphasized the "limited nature of [this] summary judgment." No final judgment of any kind was rendered, no permanent injunction issued, and no damages were awarded. When no classwide determination has been made, Rule 23(c) (1), by its terms, permits amendment and alteration of the class.

The Absence of Direct Injury

Both the original district judge and his successor required the FHCC to demonstrate that at least one person was actually injured by the practices of the defendants at each apartment complex. The FHCC insists that it has standing to sue and that the district court erred in dismissing its cases when it could not identify individuals who could allege injury.

We do not question the well-established rule that organizations have standing to sue on behalf of their members. See, e.g., Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333 (1977). Neither did the district court. Rather, the district court found after carefully questioning the FHCC's designated individuals that two of the three could not even remember seeing the defendants' "adults only" signs.²  The FHCC is unable to explain how it can have a case when it failed to identify a single class member who could show direct injury.³ 

The Motion for Recusal

Although the FHCC insists that the district judge had extrajudicial concerns about the litigation, it fails to demonstrate that the judge suffered from any bias beyond that which he read in the case materials. The appeal from the district court's denial of the motion for recusal lacks any merit.

The judgment of the district court is AFFIRMED.