Elsie Simer v. Richard J. Rios, Acting Director of Community Services Administration Community Services Administration

This case raises many issues concerning the legality and eventual vacating of a settlement agreement entered into by the plaintiffs and the Community Services Administration (CSA).

Suit was initiated on September 24, 1979 by eight individuals and Gray Panthers of Chicago, an unincorporated non-profit organization, as a class action. The complaint alleged several claims against CSA for its administration of the Crisis Intervention Program (CIP).

CIP was a program funded under the Emergency Energy Conservation Services Program (EECSP), 42 U.S.C. § 2809(a)(5), and was designed "to enable low income individuals and families, including the elderly ... to participate in the energy conservation programs designed to lessen the impact of the high cost of energy ... and to reduce ... energy consumption." Id.1

One aspect of this program provided cash assistance for fuel and utility bills to qualified individuals.2 The pertinent regulations adopted by CSA conditioned the grant of assistance payments upon the production of a shut-off notice from a utility company.3 Plaintiffs' complaint alleged that this regulation violated EECSP which provided that "(e)ligibility for any of the programs authorized under this section shall not be based solely on delinquency in payment of fuel bills." 42 U.S.C. § 2809(a)(5).

Within 10 days of the filing of the complaint, plaintiffs moved in the district court for a temporary restraining order and a preliminary injunction which would enjoin CSA from returning unspent funds from the 1979 program to the United States Treasury.4 The district court entered a temporary restraining order which directed CSA not to return the unspent money to the Treasury until further court order.

Thereafter, both parties moved for summary judgment, plaintiffs contending that the regulation violated the plain letter of the statute. In response, CSA argued that assistance was to be offered only in cases of crisis or emergency and that the regulation was a reasonable means to ensure that a "crisis" did exist.5

At a hearing held on the motions for summary judgment, the district court indicated that it would rule for plaintiffs. In regard to defendant's contention that the shut-off notice requirement was consistent with the "crisis" emphasis of the statute the court stated:

I do not find the language about crisis in this statute. In Section 2809 of Title 42 in Paragraph 5, it talks about the Energy Conservation Service. It talks about the elderly and the near poor. It talks about lessening the impact of high cost of energy on such individuals and families. In other words, it does not speak in terms of crisis. It speaks in terms of helping poor and near poor people.

After the district court indicated that it would be inclined to rule for plaintiffs on the issue of the validity of the regulation, counsel for CSA indicated that settlement discussions might be appropriate. The district court agreed and continued to hold the motions for summary judgment under advisement.

The parties next appeared in court on April 25, 1980 with a settlement to present to the district court. At the prior hearing the parties and the district court discussed the problem of relief for the statutory violation. Several alternatives were discussed with varying opposition to each alternative stated by CSA. One possibility was that the 1979 program would be reopened and that the remaining funds would be administered and disbursed through this program. CSA objected to this because a new more extensive program for 1980 was presently functioning and was substantially different from the 1979 program. Therefore, reopening the 1979 program would be, in the words of CSA, an "administrative nightmare." Hearing of Jan. 4, 1980, App. at 186-87.

A second alternative considered at the hearing was to reprogram the funds from the 1979 program into the 1980 program. The major flaw with this proposal, according to the parties, was that it would not provide the greatest relief for those who were to benefit from the program.

The settlement eventually agreed to by the parties presented a third alternative funding of programs which would accelerate long range solutions to the energy problems for the elderly.7 The programs funded by the settlement included: 1) a four million dollar hypothermia program; 2) four million dollars for emergency energy conservation kits; 3) a two million dollar solarization program; 4) six and one-half million dollars to local groups to fund advocacy programs to represent the interests of energy consumers; 5) one million dollars for an "Emergency Preparedness/Impact Assessment" program; 6) $300,000 to fund a Small Farm Energy Project; 7) $350,000 to hire personnel to administer and monitor all of the above programs. In addition to the funding of these programs, each of the eight named individual plaintiffs received a cash payment of $250.00.

The parties presented the settlement to the district court and recommended that the court approve the agreement. The parties informed the district court that the settlement was consistent with congressional intent and was a proper accommodation of the various conflicting interests at stake. The district court agreed with this characterization of the settlement and signed and entered the consent decree. At no time at this hearing was the issue of class certification or notice to the putative class members discussed or alluded to. Nor was settlement conditioned upon class certification or the putative class being bound by the judgment.

On August 20, 1980 an article entitled "A Sweetheart of a Lawsuit" appeared in the Wall Street Journal. The article was highly critical of the settlement in this case and indicated that it was the result of collusion between CSA and plaintiffs' counsel. According to the article, CSA entered into the settlement because funding for many CSA projects probably would be terminated. The settlement's distribution of the funds allowed CSA to continue to fund these "pet projects."

Approximately one month after the publication of the article in the Wall Street Journal, Senator Paul Laxalt sent a letter to defendant Richard J. Rios, acting director of the CSA. Senator Laxalt stated that he was "disturbed by reports that our adversary system of justice may have been compromised by the settlement in the case." Senator Laxalt requested an accounting of monies spent and unspent pursuant to the settlement and that "(u)ntil such time as the ... accounting has been delivered to me, and I have a chance to review it, I request that no additional funds be disbursed by the Community Services Administration." App. at 278. A copy of the letter also was sent to Judge Grady, the district court judge who signed the settlement decree.

On September 26, 1980 the district court issued an order, sua sponte, calling for a status conference in the case. The order, apparently referring to contacts by Senator Laxalt and discussions in the media, stated:It has come to our attention that questions have been raised as to whether the "Stipulation and Agreed Order" in this case ... may provide for the funding of programs which Congress did not intend to be funded in this manner.

App. at 93.

The order set the status conference for October 6, 1980. On October 5, 1980 a "motion to intervene and motion for relief from the order" was filed by: Fred P. Meagher, a member of the putative class, Senators Paul Laxalt, Orrin Hatch, and Edward Zorinsky, and the Capital Legal Foundation (Capital).8 The motion sought to vacate the order approving the settlement and to restrain any further spending pursuant to the settlement.

The above motion stated several grounds for intervention and for vacating the settlement. Most significantly, the intervenors contended that the settlement violated proper class action procedure under Rule 23(e) by failing to give putative class members notice and an opportunity to be heard. The intervenors also argued that the settlement was not in the best interests of class members or CSA.

At the status conference of October 6, 1980, the district court pursued several lines of inquiry regarding the settlement approved on April 25, 1980. First, the district court queried whether the disbursement of the funds pursuant to the settlement order was consistent with congressional intent. Second, the district court discussed the class action issue and intimated that it previously had concluded that class certification was properly denied.9 The district court denied the motion to intervene and requested that memoranda be filed on whether or not the settlement order should be vacated.

On October 29, 1980 the district court issued a "Memorandum Opinion" which vacated the order of April 25, 1980 approving the settlement. Furthermore, in the opinion, the court denied the motion for class certification and held the claims of the organizational plaintiffs, Gray Panthers, nonjusticiable. The court concluded that since the eight individual plaintiffs had received their relief and the class action had been denied, there was no case or controversy before the court and ordered the case dismissed with prejudice.10

The "Memorandum Opinion" offered several rationale for vacating the order of April 25, 1980. Primarily, the court reasoned that the parties had misrepresented the facts and the law in prior hearings on the settlement. The alleged misrepresentations concerned whether the funding of programs provided for in the settlement was consistent with congressional intent and whether the parties informed the district court that absent its prior order the money would revert to the United States Treasury.

On October 30, 1980 plaintiffs filed a notice of appeal and requested an expedited briefing and hearing on the case. The latter motions were granted. On appeal many issues are presented for review by the briefs of the parties as well as those filed by amicus curiae.11 However, the primary issues on appeal are the proper procedure to be utilized for settling class actions which have not been certified and whether this case should have been certified as a class action.

The initial issue which must be decided is whether the district court properly acted within the scope of Rule 60(b) in vacating the judgment approving the settlement decree. The district court held that there were two separate grounds for vacating the judgment the judgment was void, Fed.R.Civ.P. 60(b)(4), and the judgment was obtained by misrepresentation or fraud on the court, Fed.R.Civ.P. 60(b)(3). On appeal, plaintiffs contend that the parties fully apprised the district court of both the facts and the law and therefore there was no misrepresentation or fraud on the court. The Government agrees with plaintiffs' position on the issues of misrepresentation and fraud on the court. However, the Government argues that the judgment was properly vacated as void because "it granted class-wide relief without giving putative class members notice and an opportunity to be heard."12

We agree that the judgment cannot be vacated by reason of fraud or misrepresentation. An examination of the record leads us to the conclusion that the parties were sufficiently forthright with the district court on both the factual and legal issues in the case. The district court pointed to two separate matters on which it was misled whether it was informed that without its order of September 26, 1979 the money would have reverted to the United States Treasury and whether the parties misled it on the issue of congressional intent. We proceed to discuss these allegations of misrepresentation and fraud.

The district court, in its October 29, 1980 order, concluded that:

No one informed me that, without the order (of April 25, 1979) the $18 million would have to go back to the United States Treasury. No one alerted me to the possibility that the various projects described in the order might not have been within the contemplation of Congress at the time the money was appropriated.

App. at 145. This statement is contrary to statements made to the district court by counsel for plaintiffs in papers presented in their motion for a temporary restraining order and memorandum in support thereof.13 Plaintiffs' "Notice of Motion" states that:

(Counsel for plaintiffs) shall appear before the Honorable Judge Grady ... and shall ... file the motion of plaintiffs to restrain the defendants from returning any unobligated funds in the 1979 Crisis Intervention Program to the U.S. Treasury pending further Court order....

Plaintiffs' memorandum in support of the motion states that "This motion seeks a court order preventing any return to the U.S. Treasury of the funds currently in dispute pending court order." App. at 51. The exigency of the situation is made even more explicit in the text of their memorandum. In arguing that a temporary restraining order was necessary because of the irreparable harm that would be suffered absent such relief, plaintiffs stated:

If CSA is not restrained from returning unobligated funds, the portion of the $200,000,000 CIP appropriation not obligated by that date will be returned to the United States Treasury. Should the court subsequently determine that the CIP has been unlawfully administered, the balance of the 1979 CIP funds will no longer be available for obligation on behalf of eligible applicants.

App. at 52-53. In light of these statements in the record we do not believe that the parties misled the district court on the issue of whether its order was the sole authority for preventing the money from reverting to the Treasury.15

The district court also concluded that the parties misled it on the issue of whether the expenditures in the settlement agreement were consistent with congressional intent. Specifically, the district court believed that the parties failed to inform it that the expenditure of funds was only to be for crisis situations. App. at 149.

Again, this conclusion of fraud is not supported by the record. The issue of congressional intent and whether funding only was to be for crisis situations was sufficiently explored by the parties and the district court prior to settlement. At the hearing held on January 4, 1980, when the motions for summary judgment on the validity of the regulation were being discussed, the issue of congressional intent was explored.

MR. DOCKTERMAN (counsel for CSA): If your bill is not due until next month then you have no immediate crisis.

THE COURT: The statute does not say anything about an immediate crisis, does it? In the sense that you are talking about, it talks about people who are having difficulty providing themselves with these various things that are covered by the program.

App. at 186. Defendants' reply memorandum on the motion for summary judgment presses the "crisis" contention and also notes the broad range of CSA-funded programs.

Congress was addressing all energy programs, not just one segment of a particular program .... Since CIP was not designed solely to pay fuel and utility bills, but to provide a wide range of energy assistance, applicants without fuel bills could nevertheless be eligible. Any applicant in crisis because of payment of such bills was eligible for assistance.

Congress had directed CSA to limit its programs for use only in a "clear and demonstrated energy emergency."

Therefore, at several stages in the proceedings the parties informed the district court on the issue of congressional intent and whether disbursements by CSA could be made only for crisis situations. Although it does appear that there may have been some misunderstanding between Judge Grady and counsel about the settlement and its implication, we conclude that there was an insufficient basis to vacate the judgment for misrepresentation or fraud on the court.

While we reject the district court's conclusion that fraud or misrepresentation was a proper basis for vacating the settlement order, we do conclude, on other grounds, that the settlement decree should have been vacated as void.

Mere error in the entry of a judgment does not render a judgment void for purposes of Rule 60(b)(4).17 Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374-78, 60 S.Ct. 317, 318-20, 84 L.Ed. 329 (1940). But where an error of constitutional dimension occurs, a judgment may be vacated as void. One such constitutional error for concluding that a judgment is void for purposes of Rule 60(b)(4) is if the judgment was entered in violation of due process.18

As is discussed below, in greater detail, entry of the settlement decree without notice to putative class members violated the due process rights of the class members. Entry of the settlement decree, while not binding on absent individuals, nonetheless did prejudice the rights of these individuals. Therefore, as a matter of due process, notice was required to protect their rights. Because this notice never was delivered the judgment must be vacated as void. Sertic v. Cuyahoga Lake, etc., Carpenters District Council, 459 F.2d 579, 581 (6th Cir. 1972); Sagers v. Yellow Freight Systems, Inc., 68 F.R.D. 686 (N.D.Ga.1975).

In their complaint filed on September 24, 1979 plaintiffs requested that the case be certified as a class action. The class was described as:

all low income persons otherwise eligible for participation in the 1979 CIP who were denied 1979 CIP assistance by the federal defendants or discouraged from applying for assistance because they were not delinquent in the payment of their fuel bills for 1979.

App. at 2.

The case never was certified as a class action. At the initial hearing on the motions for summary judgment the district court indicated that the plaintiffs were entitled to judgment and that the "next step is what to do about it. That means certifying a class." Hearing of Jan. 4, 1980, App. at 195. At this point the parties decided that settlement discussions might be appropriate. The district court agreed and eventually the settlement decree was signed and entered. However, it appears that the issue of class certification disappeared from significance once settlement became apparent.

The district court, in its decision vacating the settlement, decided against class certification, concluding that a class action was unmanageable. On appeal we are faced with two issues not necessarily separate. First, should the members of the putative class, either under Rule 23(e) or the Due Process Clause of the Fifth Amendment, have been given notice of the settlement? Second, if notice was necessary, was the case appropriate for class action status?

Plaintiffs first contend that notice was not required under Rule 23(e) because the rule applies only to settlement of a certified class action. In the alternative plaintiff contends that although notice may be required in some instances in a class action which has not been certified, this is not such a case.

Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

The purposes served by Rule 23(e) are most evident in the case where a class has been certified and the case is settled or dismissed. Most importantly, the settlement or dismissal of the case will be res judicata as to claims of the individual class members. Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115, 118, 85 L.Ed. 22 (1940) (Stone, J.); 3B Moore's Federal Practice, P 23.80(1) at 23-504 (3d ed. 1980). In the case where the claims are settled, important rights and remedies may be bargained away in the settlement process. Therefore, notice of the settlement is necessary as a matter of constitutional due process an individual's claim cannot be extinguished without notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950). After notification, class members can make a decision as to the proposed settlement either choosing to be bound, objecting to, or eventually appealing the judgment.19

In a settlement entered without class certification the judgment will not have a res judicata effect on the claims of absent class members. Thus, a strong argument can be made that the absolute notice requirement of Rule 23(e) should not apply. However, most of the early decisions rejected this contention and held that a putative class action must be assumed to be a class action under Rule 23(e) and therefore notice was required. Wallican v. Waterloo Community School District, 80 F.R.D. 492 (N.D.Iowa 1978); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61 (S.D.Tex.1977); Duncan v. Goodyear Tire & Rubber Co., 66 F.R.D. 615 (E.D.Wis.1975); Rotzenburg v. Neenah Joint School District, 64 F.R.D. 181 (E.D.Wis.1974); Held v. Missouri Pacific Railroad Co., 64 F.R.D. 346 (S.D.Tex.1974); Muntz v. Ohio Screw Products, 61 F.R.D. 396 (N.D.Ohio 1973); Washington v. Wyman, 54 F.R.D. 266 (S.D.N.Y.1971); Rothman v. Gould, 52 F.R.D. 494 (S.D.N.Y.1971); Yaffe v. Detroit Steel Corp., 50 F.R.D. 481 (N.D.Ill.1970); Gaddis v. Wyman, 304 F.Supp. 713 (S.D.N.Y.1969); Philadelphia Electric Co. v. Anaconda American Brass Co., 42 F.R.D. 324 (E.D.Pa.1967).

The purposes to be served by the imposition of Rule 23(e) requirements to putative class actions are twofold. First, it protects the class defendant from plaintiffs who append a class claim merely to strengthen their bargaining power in settlement discussions. Requiring that Rule 23(e) notice be sent out deters the filing and alleging of frivolous class actions that is, the time and cost of effecting the notice requirement make a plaintiff consider carefully the consequences of filing a class claim. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 548, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949); Rothman v. Gould, 52 F.R.D. 494, 496 (S.D.N.Y.1971).

In addition to this institutional or defendant's concern, requiring notice to putative class members also insures that the putative class members' interests will be protected. This prejudice might occur in spite of the fact that the putative class members are not barred by res judicata. Shelton v. Pargo, Inc., 582 F.2d 1298, 1311 (4th Cir. 1978). Note, Developments in the Law Class Actions, 89 Harv.L.Rev. 1318, 1541-42 (1976) (hereinafter cited as Developments). A settlement of the class action could affect the putative class in several ways the settlement may seek to achieve structural relief that putative class members may not agree with; if the relief is in the form of both structural and compensatory relief, trade-offs at the expense of the putative class may occur; finally, the relief may be from a limited fund and thus putative class members may have no recourse for compensatory relief. Armstrong v. Board of School Directors, 616 F.2d 305, 313 (7th Cir. 1980); Developments, supra, at 1552-54.

While the emphasis these decisions place on protecting putative class members from prejudice and class defendants from frivolous class claims should not be underestimated, it appears that the absolute application of Rule 23(e) and the reasoning behind such an absolute rule may prove too much often at the expense of other important individual and institutional policies. First, converting every potential class claim into a class action requiring rule 23(e) notice as well as other full class treatment will be time consuming and costly. Thus, the potential beneficiaries of the relief the putative class may actually be harmed by a rule meant to protect their interests. Shelton, 582 F.2d at 1311. Notice and a certification determination can be extremely costly matters which could be taxed against the class relief or serve as a deterrent to the filing of class actions. Id. Also, the time delay involved in notice and a certification determination may well delay the relief eventually provided to the class members. Therefore, a rule requiring notice in a settled case which has not been certified may be injurious to the interests of the putative class members.

An absolute rule would also cause institutional problems. The legal system should favor and encourage the voluntary resolution of litigation. Settlements spare the judicial system the expense and time that is attendant to the full panoply of pre-trial, trial, and post-trial proceedings. Armstrong, 616 F.2d at 313 (7th Cir. 1980). Thus, requiring notice and a certification determination would impair the settlement of class actions. Also, representative class plaintiffs may choose to drop out their class claim, even if it has merit, in order to settle their own claims. Thus, the efficiency as well as societal benefit of the class action device will not come to be appreciated. Id. at 313.

In sum, we believe that there are serious shortcomings with a rule that would require that Rule 23(e) be applied to all settled class actions which have not been certified. To be sure, there may be instances where the need for notice or class certification prior to settlement is absolutely necessary to protect the rights of putative class members. In those cases the district court, in its discretion and acting pursuant to Rule 23(d) as well as its general equity power, may order notice. Therefore, rather than setting down an absolute rule we choose to place discretion in the district court to assess the prejudice to absent class members caused by the settlement, the institutional costs of notice and a certification hearing, as well as other factors relevant to this determination.20

The approach we adopt is fully consistent with that set out by the Fourth Circuit in Shelton v. Pargo, 582 F.2d 1298 (4th Cir. 1978). In Shelton plaintiffs filed a class action alleging violations of Title VII and seeking injunctive and monetary relief. While the motions for class certification were pending, settlement negotiations began. Eventually, plaintiff settled his individual claim and then sought a stipulated dismissal under Fed.R.Civ.P. 41. The district court believed that notice was required under Rule 23(e) because putative class members might be relying on prosecution of the action to protect their own rights.

The court of appeals reversed, holding that Rule 23(e) simply did not apply to a class action which is not certified. The court reasoned that since putative class members were not barred by the settlement, any abuses attendant to non-certified class actions which are settled can be controlled by the discretionary supervisory power under Rule 23(d). The court acknowledged that in some instances due process considerations may require notice and a precertification hearing. However, the court concluded that these problems were best left to the discretion of the district court. Thus, absent prejudice to putative class members or the abuse of the class action device, a case could be settled without notice to the putative class.

As stated above, we agree with the Fourth Circuit and conclude that the absolute notice requirement of Rule 23(e) is inapplicable to settled cases which have not been certified. However, we emphasize that district courts should scrupulously scrutinize the terms of settlement agreements for the impact on absent putative class members.

Plaintiffs contend that notice was not required under the criteria of Shelton absent putative class members were not bound by the judgment nor was there a reliance expectation of the absent putative class members since the lawsuit was filed only six days before the money was to revert to the Treasury.

We cannot agree with plaintiffs' characterization of the prejudice to absent putative class members. Although the judgment did not bind absent putative class members, the practical effect of the settlement was to distribute the $18 million dollar fund of CIP funds in a manner that may have been contrary to the interests of putative class members. The prejudice to the absent individuals is evident at several levels. Assuming that the absent individuals would have chosen that the funds be spent in providing programs rather than individualized damage payments, there is no guarantee that they would decide to seek the mix of structural relief eventually agreed upon. More importantly, the class representatives (and their counsel) had to decide how to spend the funds. They decided that having the money fund programs rather than attempting the long and laborious task of identifying class members and determining the form of relief was a better alternative. But it cannot be doubted that some individuals might have preferred to receive the monetary payment rather than the program funding.21 By identifying and notifying the individuals, they would be given this choice; and failure to do so unfairly prejudiced their rights in the matter.

Notice and an opportunity to be heard are the touchstones of procedural due process. We conclude that entry of the settlement without notice violated the due process rights of the absent putative class members.22

Having concluded that notice to absent putative class members was required and therefore that the settlement was properly vacated, plaintiffs would urge us to remand the case for a determination of class certification. The district court, in its order of October 30, 1980, concluded that the case could not properly be maintained as a class action. Plaintiffs contend that the district court's conclusion is erroneous substantively and furthermore that the procedure used by the district court to dispose of the issue was erroneous. Before discussing these contentions we set forth the procedural history of the class action issue.

A class claim was included in plaintiffs' original complaint. On October 18, 1979 plaintiffs filed a motion for class certification which was taken under advisement. At the January 4, 1980 hearing the district court indicated that it would rule for plaintiffs on the issue of the validity of the regulation and that the next step was to certify a class. However, settlement negotiations followed and the class issue did not arise again until the district court sua sponte called for a status conference on whether to vacate the settlement decree. At this time the court expressed concerns about the manageability of a class action in the case. Finally, in its order vacating the settlement decree the court denied class certification, again emphasizing the manageability problems.

Initially we note that our review of the district court's denial of class certification is limited. We can reverse this determination only if the district court's decision denying certification was an abuse of discretion. Patterson v. General Motors Corporation, 631 F.2d 476, 480 (7th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981) (citing Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir. 1977)); Adashunas v. Negley, 626 F.2d 600, 605 (7th Cir. 1980).23

The parties, as did the district court, focus on the concept of "manageability" of a class action and whether the issue of each individual plaintiff's state of mind makes the class action unmanageable.24 We agree that the issue of "state of mind" does make this case difficult to manage as a class action. However, we also conclude that the class action fails for other reasons.

It is axiomatic that for a class action to be certified a "class" must exist. De Bremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970); 3B Moore's Federal Practice, P 23.04(1) at 23-111 (3d ed. 1980). In the present case serious problems existed in defining and identifying the members of the class. As noted above, the complaint defined the class as those individuals eligible for CIP assistance but who were denied assistance or who were discouraged from applying because of the existence of the invalid regulation promulgated by CSA.

Cases have recognized the difficulty of identifying class members whose membership in the class depends on each individual's state of mind. De Bremaecker, 433 F.2d at 734; Chaffee v. Johnson, 229 F.Supp. 445, 448 (S.D.Miss.1964), aff'd on other grounds, 352 F.2d 514 (5th Cir. 1965), cert. denied, 384 U.S. 956, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); Capaci v. Katz & Besthoff, Inc., 72 F.R.D. 71, 78 (E.D.La.1976). In De Bremaecker a class action was filed on behalf of all state residents active in the peace movement who had been harassed or intimidated as well as those who feared harassment or intimidation in the exercise of their constitutional rights. The court held that this did not satisfy the requirement of an adequately defined and clearly ascertainable class. First, the court noted the ambiguity inherent in the term "peace movement." Even aside from this ambiguity, however, the court went on to discuss another problem in identifying the class the theory of the complaint was that state law chilled residents in the exercise of their first amendment rights. It could not be concluded that all state residents were "chilled" in such a manner and therefo