Neal Ex Rel. Kanter v. Casey , 43 F.3d 48 ( 1994 )


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  •                                                                                                                            Opinions of the United
    1994 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    12-15-1994
    Baby Neal v. Casey
    Precedential or Non-Precedential:
    Docket 94-1381
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
    Recommended Citation
    "Baby Neal v. Casey" (1994). 1994 Decisions. Paper 221.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1994/221
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    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    No. 94-1381
    ________________
    BABY NEAL, for and by his next friend, NANCY KANTER;
    KAREEM AND KENT H, for and by their next friend,
    JOHN PEIRCE; WILLIAM AND JOSEPH H, for and by
    their next friend, FATHER, ROBERTO MALDONADO;
    MARCELLA B, for and by her next friend, FRANK
    CERVONE; SHERRY G, for and by her next friend,
    JOAN ATLAS; JOHN, JEAN, JACOB, AND JEFFREY W,
    for and by their next friend, WILLIAM SWEENEY;
    ALICIA P, for and by her next friend, SARA
    NERKEN; MANUEL I, for and by his next friend,
    FRANK CERVONE; TAMARA AND CARL I, for and     by
    their next friend, FRANK CERVONE; JANE L, for
    and by her next friend, ANNA SCHMIDT
    JAMIE B; IVY V; AMELIA V; TARA M; EVAN M; ELLIE C;
    JOHN B; CHUCK L; LARRY P; SHERIS C; KYLE S;
    TODD MCL; JAY I; MAX C;
    Plaintiffs-Intervenors
    v.
    ROBERT P. CASEY, in his official capacity as
    Governor of COMMONWEALTH OF PENNSYLVANIA; KAREN
    F. SNIDER,* in her official capacity as Secretary
    of the Department of Public Welfare for the
    Commonwealth of Pennsylvania; W. WILSON GOODE,
    in his official capacity as Mayor of the City of
    Philadelphia; JOAN M. REEVES, in her official
    capacity as Commissioner of the Department of Human
    Services of the City of Philadelphia; MAXINE TUCKER,
    in her official capacity as Interim Deputy
    Commissioner of the Children and Youth Division of the
    Philadelphia Department of Human Services; EDWARD
    J. BLAKE, in his official capacity as President Judge
    of the Philadelphia Court of Common Pleas
    *[substituted pursuant to FRAP 43(c)]
    Baby Neal, by and through his next friend, Nancy
    Kanter; Marcella B, by and through her next
    friend, Frank Cervone; Sherry G, by and through
    her next friend, Joan Atlas; John, Jean, Jacob,
    and Jeffrey W, by and through their next friend,
    William Sweeney; Alicia P, by and through her next
    friend, Sara Nerken; Tamara, Carl, and Manuel I,
    by and through their next friend, Frank Cervone;
    Jane L, by and through her next friend, Anna
    Schmidt; Jamie B, by and through his next friend,
    Claire Rosenstein; Ivy, Amelia, and Jay V, by and
    through their next friend, Susan Bergin; Tara M,
    by and through her next friend, Nancy Kanter; Evan
    M and Ellie C, by and through their next friend,
    Najma Davis; John B, by and through his next
    friend, Anita Wirzberger; Chuck L, by and through
    his next friend, Sara Nerken; Max C, by and
    through his next friend, Nancy Kanter; Larry P, by
    and through his next friend, Nancy Kanter; Sheris
    C, by and through his next friend, William W.
    Norvell, III; Kyle S, by and through his next
    friend, Sara Nerken; and Todd McL, by and through
    his next friend, Nancy Kanter,
    Appellants
    ___________________________________________________
    On Appeal From the United States District Court
    For the Eastern District of Pennsylvania
    (D.C. No. 90-cv-02343)
    ___________________________________________________
    Argued: September 22, 1994
    Before: BECKER, COWEN, and GARTH, Circuit Judges.
    (Filed   December 15, l994)
    ROBIN   L.       DALHBERG,   Esquire
    (ARGUED)
    MARCIA ROBINSON LOWRY, Esquire
    American Civil Liberties Union
    Children's Rights Project
    132 West 43rd Street
    New York, New York   10036
    LAWRENCE J. FOX, Esquire
    MARY E. KOHART, Esquire
    E. GRAHAM ROBB, Esquire
    PAUL H. SAINT-ANTOINE, Esquire
    Drinker Biddle & Reath
    Philadelphia National Bank Bldg.
    1345 Chestnut Street
    Philadelphia, PA 19107-3496
    STEFAN PRESSER, Esquire
    American Civil Liberties Union
    of Pennsylvania
    125 South Ninth Street, Suite 701
    Philadelphia, PA 19107
    Attorneys for Appellants
    DANA B. KLINGES, Esquire (ARGUED)
    JEROME J. SHESTACK, Esquire
    MICHELE K. CABOT, Esquire
    Wolf, Block, Schorr & Solis-Cohen
    S.E. Corner 15th & Chestnut Sts.
    Packard Building, 12th Floor
    Philadelphia, PA 19102
    JOHN A. KANE, Esquire
    Chief Counsel
    DORIS M. LEISCH, Esquire
    Assistant Counsel
    Department of Public Welfare
    309 Health & Welfare Building
    Harrisburg, PA 17120
    Attorneys for Appellees
    Robert P. Casey and Karen Snider
    MICHAEL F. EICHERT, Esquire
    Office of the City Solicitor
    1600 Arch Street, 8th Floor
    Philadelphia, PA 19102
    Attorney for Appellees
    W. Wilson Goode, Joan M. Reeves,
    and Maxine Tucker
    A. TAYLOR WILLIAMS, Esquire
    Supreme Court of Pennsylvania
    Administrative Office of
    Pennsylvania Courts
    1515 Market Street, Suite 1414
    Philadelphia, PA 19102
    Attorney for Appellee
    Edward J. Blake
    MARTHA MATTHEWS, Esquire
    National Center for Youth Law
    114 Sansome Street, Suite 900
    San Francisco, CA 94104-3820
    Attorney for Amicus Curiae
    National Center for Youth Law
    ROBERT G. SCHWARTZ, Esquire
    JACQUELINE L. DUBY, Esquire
    Juvenile Law Center
    801 Arch Street, Suite 610
    Philadelphia, PA 19107
    Attorneys for Amici Curae
    Juvenile Law Center
    Philadelphia     Citizens               for
    Children
    and Youth
    ___________________________
    OPINION OF THE COURT
    ____________________________
    BECKER, Circuit Judge.
    This appeal from orders of the district court for the
    Eastern District of Pennsylvania requires that we decide whether
    the court abused its discretion in denying class certification
    pursuant      to   FED. R. CIV. P.        23(b)(2)    to    a   putative   class   of
    children      in   the   legal     care     and    custody      of    Philadelphia's
    Department of Human Services ("DHS"), who sought declatory and
    injunctive relief against the officials responsible for operation
    of the child welfare system.                Plaintiffs allege that systemic
    deficiencies       prevent   DHS    from    providing       a   variety    of    child
    welfare    services       legally     mandated        by     the      United    States
    Constitution and by federal and state law.                      The district court
    held   that    the   plaintiffs     could    not     meet   the      commonality and
    typicality requirements of Rule 23, essentially because each of
    the    plaintiffs'      claims      arose       out     of    individual     (and       tragic)
    circumstances and hence they could not claim a single common
    injury and be appropriately entitled to class relief pursuant to
    RULE 23(b)(2).        We reverse.
    I. FACTS AND PROCEDURAL HISTORY
    This suit was brought on behalf of sixteen children who
    had been placed in DHS's care by orders of the Family Court
    Division of the Philadelphia County Court of Common Pleas ("the
    Court").       Defendants         are     the     Governor         of   Pennsylvania,        the
    Secretary of Pennsylvania's Department of Public Welfare ("DPW"),
    the    Mayor     of     Philadelphia,             the        Commissioner        and     Deputy
    Commissioner of DHS, and the President Judge of the Court.                                   The
    city    defendants          are     responsible              for    the    operation         and
    administration         of    DHS.           The       Commonwealth        defendants         are
    responsible for ensuring that DHS provides legally mandated child
    welfare services to eligible children and families.                              The Judicial
    defendant is responsible for the allocation of judicial resources
    for the Family Court.
    It is a matter of common knowledge (and it is not
    disputed here) that in recent years the system run by DHS and
    overseen by DPW has repeatedly failed to fulfill its mandates,
    and    unfortunately        has     often       jeopardized         the   welfare       of   the
    children    in    its       care.         Plagued       by     severe      and    widespread
    deficiencies     in     staff       and     revenues,          the      system    has     often
    demonstrated a lack of ability to provide abused and neglected
    children with the necessary welfare services.
    The DHS acknowledged many of these deficiencies in its
    Three    Year    Plan     1991-1992      (A486-A492).         The    Commonwealth
    defendants      have    also   acknowledged     these   deficiencies:           three
    times since April 1992, DPW denied a full operating license to
    the DHS.     At those times, DPW announced that DHS had failed (1)
    to   satisfy      legal    mandates       for   child    protective        services
    investigations; (2) to adhere to the caseload maximum of 30 cases
    per caseworker; (3) to assign to a substantial number of foster
    children a caseworker to monitor foster care placement and to
    ensure   that     the    children   received     necessary     and       appropriate
    services; (4) to ensure that foster parents received the training
    necessary to permit them to care for foster children; and (5) to
    provide any child whose records were reviewed with an adequate
    case plan. (A277-A332; A333-A338; A389-A445)
    The original complaint, filed on April 4, 1990, sought
    both declaratory and injunctive relief, and alleged that systemic
    deficiencies prevent DHS from providing the following legally
    mandated     child        welfare       services:         protective         service
    investigations as required by the United States Constitution, the
    Child    Abuse    Prevention     and     Treatment    Act,1   and    state      law2;
    monitoring and supervision as required by the Constitution and
    1 42 U.S.C. § 5106a(b) (West Supp. 1994).
    2
    23 Pa. CON. STAT.           ANN.     §§6301-84     (1991),     55    Pa.    Code
    §§3490.51-.73 (1994).
    state law3; safe and secure foster care placements as required by
    the Constitution, the Adoption Assistance Act,4 and state law5;
    written case plans as required by the Constitution, the Adoption
    Assistance Act,6 and state law7; necessary medical, psychiatric,
    psychological,       and   educational   services      as    required    by   the
    Constitution, and state law8; the planning and steps required to
    return children to their families or to find them alternative
    permanent     placements     as   required     by    the    Constitution,     the
    Adoption Assistance Act,9 and state law10; and periodic judicial
    reviews as required by the Constitution, the Adoption Assistance
    Act,11 and state law12.
    In factual terms, plaintiffs allege that the system has
    the following deficiencies:          an insufficient number of trained
    caseworkers;    an    insufficient    number    of    medical,    psychiatric,
    psychological, and educational service providers; an insufficient
    3
    55 Pa. Code § 3490.61 (1994).
    4
    42 U.S.C. §671(a)(10) (West Supp. 1994).
    5
    55 Pa. Code § 3130.67 (1994).
    6
    42 U.S.C. §§627(a)(2)(B), 675 (West 1991).
    7
    55 Pa. Code §§ 3130.61,             3130.63,      3130.66-67,      3130.73,
    3490.59, 3810.35 (1994).
    8
    55 Pa. Code §§3130.12(c),           3130.34-35,        3130.73,    3490.60,
    3700.51, 3810.51 (1994).
    9
    42 U.S.C. §627(a)(2)(C) (West 1991).
    10
    55 Pa. Code §§3130.36-37 (1994).
    11
    42 U.S.C. §§627(a)(2)(B), 675 (West 1991).
    12
    55 Pa. Code §§3130.71, 3130.72 (1994).
    number     of    trained   foster      parents;         an   insufficient      number    of
    placements       for   children       who   need    environments        that    are     more
    structured than foster homes; an insufficient number of potential
    adoptive parents; and a host of policies and procedures that are
    inefficient and deficient as measured against the standards of
    national        organizations     incorporated          under    federal      law.       The
    complaint       portrays   the    impact      of    these       deficiencies        through
    accounts of the lives and conditions of the named plaintiffs.
    The stories are quite pathetic.
    Doctrinally, these allegations comprise four separate
    claims for declaratory and injunctive relief.                     The first cause of
    action involves the alleged violations of rights conferred by the
    Adoption Assistance and Child Welfare Act of 1980, including the
    right to reasonable efforts to keep the children in their home or
    to enable them to return home; the right to timely written case
    plans;     the     right   to    placement         in    foster       homes    that    meet
    nationally        recommended     standards;        the       right     to    appropriate
    services; the right to placement in the least restrictive, most
    family-like setting; the right to proper care while in custody;
    the right to a plan and to services that will assure permanent
    placement; the right to dispositional hearings within eighteen
    months of entering custody and periodically thereafter; and the
    right to receive services in a child welfare system with an
    adequate information system.
    The second cause of action lies in alleged violations
    of   the   First,      Ninth    and    Fourteenth        Amendments     to    the     United
    States Constitution.            Specifically, plaintiffs claim that these
    amendments   confer   the    right    not   to     be    deprived       of   a   family
    relationship; the right not to be harmed while in state custody;
    the right to placement in the least restrictive, most appropriate
    placement; the right to medical and psychiatric treatment; the
    right to care consistent with competent professional judgment;
    and the right not to be deprived of liberty or property interests
    without due process of law.
    The third cause of action alleges violations of rights
    conferred on the plaintiffs by the Child Abuse Prevention and
    Treatment Act, including the right to a prompt and appropriate
    investigation   of    reports   of    abuse      or     neglect;    the      right   to
    protection from those who endanger their health and welfare; and
    the right to procedures, personnel, programs, and facilities that
    are necessary to deal effectively with child abuse and neglect.
    As with the first cause of action, defendants argue that this Act
    does not create any private rights of action.
    The   fourth      cause    of   action      provides     an    alternative
    basis in state law for some of the claims alleged under the three
    federal causes of action.            These claims include the right to
    protection from abuse; the right to preventive rehabilitative
    services; the right to appropriate and timely case records and
    plans; the right to have every effort made to enable the children
    to remain in their homes or be returned to their homes; the right
    to appropriate services to assure proper permanent placement; and
    the right to adoption services.
    Simultaneously with the filing of the complaint, the
    plaintiffs sought certification of a class consisting of "all
    children in Philadelphia who have been abused or neglected and
    are or should be known to the Philadelphia Department of Human
    Services." (Pls. Motion 4/4/90 ¶2).                   The Commonwealth defendants
    moved to dismiss the complaint on the grounds that the plaintiffs
    had no valid claim for relief under any of the relevant federal
    laws.        The district court denied the defendants' motion, but it
    stayed the class certification motion during its consideration of
    this motion to dismiss.                   In response to defendants' asserted
    inability         to    complete    the    discovery      necessary         to    oppose     the
    certification, the district court stayed resolution of the class
    certification           motion   three     additional     times.       (Order 11/19/90;
    Order 1/30/91; Order 5/6/91).                   During this period, the plaintiffs
    attempted to commence system-wide discovery.                               They now allege
    that        the    defendants      never       produced   "much       of    the       requested
    discovery."
    The    district       court    denied   the     class      certification
    motion in an order dated January 6, 1992, based on the finding
    that the putative class had failed to satisfy the commonality and
    typicality requirements of Rule 23(a) and had also failed to
    satisfy Rule 23(b).13               The court based these determinations on
    its     view      that    each     of    the    plaintiffs      had    his       or    her   own
    individual circumstances and needs, and that the class thus could
    not complain about a single, common injury.                       The plaintiffs moved
    13
    The court also based its decision on the failure                                    to
    satisfy   the   adequate representation  requirement,  but                                    it
    subsequently approved the substitution of new next friends                                    on
    March 20, 1992, and the adequacy of representation issue is                                   no
    longer pressed.
    for reconsideration or, in the alternative, for certification of
    subclasses.         While this motion was pending, fourteen children
    intervened     as    plaintiffs,    seeking     relief    for    themselves    and
    proffering a demonstration that children in DHS's custody and
    care continued to be harmed by DHS's failure to provide legally
    mandated child welfare services.           The court subsequently denied
    the   motion      for   reconsideration       and   for     certification       of
    subclasses.
    The      defendants    then   moved     for    summary      judgment,
    repeating the argument made in the motion to dismiss that the
    plaintiffs had no private rights of action under the federal laws
    alleged, and arguing that the plaintiffs' claims had become moot.
    On August 24, 1992, the plaintiffs again moved for certification
    of subclasses.        The district court stayed consideration of that
    motion pending the resolution of the summary judgment motion.                  In
    an order dated April 12, 1993, the court partially granted the
    defendants'       motion    for     summary     judgment,        rejecting     the
    plaintiffs' claims as to the existence of the private rights of
    action under the Child Abuse Prevention and Treatment Act and the
    Adoption Assistance and Child Welfare Act.                The court denied the
    defendants' motion insofar as it asserted the mootness of all but
    twenty-three of the twenty-six plaintiffs' claims.
    On May 10, 1993, the plaintiffs renewed their motion
    for subclass certification.           On October 13, 1993, in an order
    denying certification the court held that the subclasses were not
    properly defined.       The plaintiffs then moved for reconsideration,
    proposing     new    subclass     definitions    intended       to   address   the
    court's concerns.      The court denied this motion without comment,
    forbade   plaintiffs    from   making   any   other   class   certification
    motions, and scheduled the case for trial. (Order, 12/6/93).
    By this time, nearly four years after the commencement
    of the litigation, almost all of the individual service needs of
    the plaintiff children had been met or otherwise resolved.             The
    parties then settled the plaintiffs' remaining claims based on
    individual service needs and entered into a stipulation of entry
    of judgment (Stip., 2/28/94), preserving the plaintiffs' right to
    appeal the denial of class certification and the grant of partial
    summary judgment as to the existence of private rights of action
    under the federal statutes. This appeal followed.14
    14
    We raised sua sponte the question whether we had
    appellate jurisdiction to consider the case since the named
    plaintiffs' individual claims had been mooted after the denial of
    class certification. Both parties submitted briefs in favor of
    the exercise of appellate jurisdiction.     We conclude, for the
    reasons set out in this footnote, that we have jurisdiction to
    consider the class certification issue, but not the summary
    judgment issues.
    Because the combination of the summary judgment order (to
    which the class was not a party) and the stipulation left nothing
    in the district court, the orders of the district court are now
    final and thus subject to review.           28 U.S.C. § 1291.
    Notwithstanding the fact that some of the named plaintiffs'
    claims have become moot since the original denial of class
    certification, this case does present live issues. United States
    Parole Com. v. Geraghty, 
    445 U.S. 388
    , 
    100 S. Ct. 1202
    (1980),
    made clear that the expiration of the named plaintiff's claims
    after the denial of class certification does not moot the action
    brought on behalf of the class.    See also Eisenberg v. Gagnon,
    
    766 F.2d 770
    , 784 (3d Cir. 1985).     Thus, the district court's
    orders were final and the issues presented are not moot.
    This court, however, only has jurisdiction to review the
    certification decision, in contrast to the summary judgment order
    issued on the existence of the private rights of action under the
    Adoption Assistance and Child Welfare Act, the Child Abuse
    Prevention  and   Treatment  Act,   state  law,   and  the   U.S.
    II.    THE LEGAL REQUISITES FOR CLASS CERTIFICATION
    A.   Introduction
    To obtain class action certification, plaintiffs must
    establish that all four requisites of Rule 23(a) and at least one
    part of Rule 23(b) are met.     Wetzel v. Liberty Mutual Ins. Co.,
    
    508 F.2d 239
    (3d Cir.), cert. denied, 
    421 U.S. 1011
    (1975).   Rule
    23(a) provides that
    [o]ne or more members of a class may sue or
    be sued as representative parties on behalf
    of all only if (1) the class is so numerous
    that joinder of all members is impracticable,
    (2) there are questions of law or fact common
    to the class, (3) the claims or defenses of
    the representative parties are typical of the
    claims or defenses of the class, and (4) the
    representative   parties   will  fairly   and
    adequately protect the interests of the
    class.
    FED. R. CIV. P. 23(a).
    The requirements of Rule 23(a) are meant to assure both
    that class action treatment is necessary and efficient and that
    it is fair to the absentees under the particular circumstances.
    While numerosity addresses the first of these concerns, i.e.,
    Constitution.    In affirming the Court of Appeals on the
    jurisdictional ground, the Geraghty Court emphasized,
    It would be inappropriate for this Court to reach the merits
    of this controversy in the present posture of the case.
    . . . Furthermore, although the Court of Appeals
    commented upon the merits for the sole purpose of
    avoiding waste of judicial resources, it did not reach
    a final conclusion on the validity of the 
    guidelines. 445 U.S. at 408
    , 100 S. Ct. at 1215.
    necessity, the last three requirements help determine whether the
    class action can be maintained in a fair and efficient manner.
    Class treatment makes no sense if there are no common issues; the
    trial court would gain nothing but logistical headaches from the
    combination of the cases for trial.                      Typicality asks whether the
    named plaintiffs' claims are typical, in common-sense terms, of
    the class, thus suggesting that the incentives of the plaintiffs
    are aligned with those of the class.                      Adequacy of representation
    assures that the named plaintiffs' claims are not antagonistic to
    the class and that the attorneys for the class representatives
    are experienced and qualified to prosecute the claims on behalf
    of the entire class.
    In    addition         to   satisfying      the   requirements    of    Rule
    23(a), a putative class must also comply with one of the parts of
    subsection (b).             In this case, plaintiffs seek certification
    pursuant to Rule 23(b)(2) which requires that "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."                   FED. R. CIV. P. 23(b).
    For the reasons explained below, we conclude that the
    plaintiffs satisfied all of the requirements of Rule 23, and that
    the   district          court    abused      its    discretion       in   denying    class
    certification on the grounds that plaintiffs failed to comply
    with subsections (a)(2) (commonality), (a)(3) (typicality), and
    (b)(2) (appropriateness of class relief) of Rule 23.15                      There is,
    as we have noted, no dispute over numerosity ((a)(1)) or adequacy
    of representation ((a)(4)).
    The concepts of commonality and typicality are broadly
    defined and tend to merge.              See 7A CHARLES A. WRIGHT,       ET AL.,   FEDERAL
    PRACTICE    AND   PROCEDURE § 1764, at 247 (1986).         Both criteria seek to
    assure       that    the    action    can     be   practically    and    efficiently
    maintained and that the interests of the absentees will be fairly
    and adequately represented.              See General Tel. Co. of Southwest v.
    Falcon, 
    457 U.S. 147
    , 157 n.13, 
    102 S. Ct. 2364
    , 2370 n.13
    (1982).           Despite   their     similarity,     however,    commonality        and
    typicality are distinct requirements under Rule 23.                      See Hassine
    v.     Jeffes,        
    846 F.2d 169
    ,     176    n.   4     (3d     Cir.     1988)
    ("'[C]ommonality' like 'numerosity' evaluates the sufficiency of
    the        class     itself,    and      'typicality'      like        'adequacy      of
    representation' evaluates the sufficiency of the named plaintiff
    . . ."); Weiss v. York Hosp., 
    745 F.2d 786
    , 810 (3d Cir. 1984),
    cert. denied, 
    470 U.S. 1060
    (1985).
    We turn to a more particularized discussion of these
    requisites.          We underscore at the outset, however, that neither
    of these requirements mandates that all putative class members
    share identical claims, see 
    Hassine, 846 F.2d at 176-77
    ; 
    Weiss, 745 F.2d at 809
    ; WRIGHT,            ET AL.,   § 1763, at 198, and that factual
    15
    Denial of class certification is reviewed for abuse of
    discretion.   Hoxworth v. Blinder, Robinson & Co., 
    980 F.2d 912
    ,
    923 (3d Cir. 1992); Winston v. Children & Youth Services, 
    948 F.2d 1380
    , 1392 (3d Cir.), cert. denied 
    112 S. Ct. 2303
    (1992).
    Valenti v. Mitchell, 
    962 F.2d 288
    , 299 (3d Cir. 1992).
    differences among the claims of the putative class members do not
    defeat certification.           See Eisenberg v. Gagnon, 
    766 F.2d 770
    (3d
    Cir.    1985)    (certifying      securities     fraud    class     action    despite
    differences in injuries); Troutman v. Cohen, 
    661 F. Supp. 802
    ,
    811 (E.D. Pa. 1987) (certifying subclass of 1,973 nursing home
    patients challenging reductions in their level of nursing care
    designations over typicality and commonality objections "because
    it is not the unique facts of the individual appeals which give
    rise to this action but rather the decision making process").
    B.     Commonality
    The commonality requirement will be satisfied if the
    named plaintiffs share at least one question of fact or law with
    the grievances of the prospective class.                 
    Weiss, 745 F.2d at 808
    -
    09; In re "Agent Orange" Prod. Liab. Lit., 
    818 F.2d 145
    , 166-67
    (2d Cir. 1987).           Because the requirement may be satisfied by a
    single common issue, it is easily met, as at least one treatise
    has noted.       See H. NEWBERG & A. CONTE, 1 NEWBERG      ON   CLASS ACTIONS § 3.10,
    at 3-50 (1992).           Furthermore, class members can assert such a
    single common complaint even if they have not all suffered actual
    injury; demonstrating that all class members are subject to the
    same harm will suffice.           
    Hassine, 846 F.2d at 177-78
    ; cf. Riley
    v.     Jeffes,     
    777 F.2d 143
    ,     147   (3d      Cir.     1985)     (finding
    constitutional violation in prisoners' being subject to constant
    threat of violence and sexual assault and rejecting contention
    that    plaintiff        must   actually   be    assaulted       before    obtaining
    relief).
    Challenges to a program's compliance with the mandates
    of its enabling legislation, even where plaintiff-beneficiaries
    are differently impacted by the violations, have satisfied the
    commonality requirement.                  See 3B JAMES W. MOORE & JOHN E. KENNEDY,
    MOORE'S FEDERAL PRACTICE ¶ 23.06-1, at 23-162 (1993) (citing cases).
    Courts    appear         to    consider     "common"        such    challenges      based     on
    alleged violations of statutory standards.                          See Liberty Alliance
    of the Blind v. Califano, 
    568 F.2d 333
    (3d Cir. 1977) (certifying
    class of blind recipients challenging regulations for calculation
    of Supplemental Security Income benefits); Appleyard v. Wallace,
    
    754 F.2d 955
           (11th    Cir.    1985)    (certifying         class      challenging
    regulations pertaining to receipt of Medicaid benefits despite
    factual differences among claims).                     Moreover, because they do not
    also involve an individualized inquiry for the determination of
    damage awards, injunctive actions "by their very nature often
    present common questions satisfying Rule 23(a)(2)."                               7A WRIGHT   ET
    AL.,   § 1763, at 201.
    To     the       extent      that       the    defendants        assert    that
    commonality requirements cannot be met in this case because of
    the individualized circumstances of the children, their argument
    has been squarely rejected by the Supreme Court.                             In Califano v.
    Yamasaki,      
    442 U.S. 682
    ,     
    99 S. Ct. 2545
       (1979),       plaintiffs
    challenged         the     adequacy       of    the    procedures          used   to    recoup
    overpayments         under       the     Social    Security         Act.      Rejecting       an
    argument      that       the     applicable       statute     only     invited      suits     by
    individuals, the court explained that "class relief is consistent
    with the need for case-by-case adjudication," especially where
    "[i]t is unlikely that differences in the factual background of
    each claim will affect the outcome of the legal issue."                           
    Id. at 701,
    99 S. Ct. at 2557.           This is especially true where plaintiffs
    request declaratory and injunctive relief against a defendant
    engaging in a common course of conduct toward them, and there is
    therefore    no     need    for    individualized          determinations         of    the
    propriety of injunctive relief.                See 7A WRIGHT       ET AL.,   § 1763 at
    203.    Indeed, (b)(2) classes have been certified in a legion of
    civil     rights    cases       where    commonality        findings       were        based
    primarily on the fact that defendant's conduct is central to the
    claims of all class members irrespective of their individual
    circumstances and the disparate effects of the conduct. 
    Id. at 219.
    In Hassine v. Jeffes, 
    846 F.2d 169
    (3d Cir. 1988),
    plaintiffs claimed that the conditions at the Graterford prison
    violated their constitutional rights.                      Reversing the district
    court's    denial     of   certification       on    commonality      grounds,         this
    court   explained     that      Rule    23   did    not   require    all     plaintiffs
    actually to suffer the same injury; rather, the fact that the
    plaintiffs    were     subject     to    the   injury,      that    they     faced      the
    immediate threat of these injuries, sufficed for Rule 23. In
    particular, the Hassine panel explained that the named plaintiffs
    could attack the inadequate mental health care provided at the
    prison despite the fact that none of them were in current need of
    those     services;        it     was   enough      that    they     challenged         the
    "inadequacy of the provision of any health care service, to which
    they are entitled, and which they might at some time require."
    
    Hassine, 846 F.2d at 178
    n.5.
    Even where individual facts and circumstances do become
    important to the resolution, class treatment is not precluded.
    Classes can be certified for certain particularized issues, and,
    under     well-established       principles        of     modern     case    management,
    actions are frequently           bifurcated.        In Eisenberg v. Gagnon, 
    766 F.2d 770
    (3d Cir. 1985), we held that a securities fraud case
    against three separate partnerships, and hence three different
    general      partners,    met         the    commonality        requirement.            The
    individual damage determinations could be made, we explained, at
    a separate phase of the trial, but the class phase could resolve
    the central issue of liability for the alleged misrepresentations
    and omissions.
    C.    Typicality
    The typicality inquiry is intended to assess whether
    the action can be efficiently maintained as a class and whether
    the named plaintiffs have incentives that align with those of
    absent      class    members     so    as    to   assure      that    the     absentees'
    interests will be fairly represented.                    3B MOORE & KENNEDY, ¶ 23.06-
    02;   1     NEWBERG & CONTE,     §    3.13.       The     typicality        criterion   is
    intended to preclude certification of those cases where the legal
    theories of the named plaintiffs potentially conflict with those
    of    the    absentees   by     requiring         that    the   common       claims     are
    comparably central to the claims of the named plaintiffs as to
    the claims of the absentees.                See 
    Weiss, 745 F.2d at 810
    .
    "Typicality         entails        an   inquiry    whether   'the     named
    plaintiff's individual circumstances are markedly different or .
    . . the legal theory upon which the claims are based differs from
    that upon which the claims of other class members will perforce
    be based.'"        
    Hassine, 846 F.2d at 177
    (quoting 
    Eisenberg, 766 F.2d at 786
    ); see also 
    Hoxworth, 980 F.2d at 923
    ; 
    Appleyard, 754 F.2d at 958
    .       Commentators have noted that cases challenging the
    same unlawful conduct which affects both the named plaintiffs and
    the putative class usually satisfy the typicality requirement
    irrespective       of     the    varying        fact   patterns     underlying      the
    individual    claims.           See   1    NEWBERG & CONTE      §   3.13.       Actions
    requesting declaratory and injunctive relief to remedy conduct
    directed at the class clearly fit this mold.
    "[F]actual differences will not render a claim atypical
    if the claim arises from the same event or practice or course of
    conduct that gives rise to the claims of the class members, and
    if it is based on the same legal theory."                     
    Hoxworth, 980 F.2d at 923
    (citing Grasty v. Amalgamated Clothing & Textile Workers
    Union, 
    828 F.2d 123
    , 130 (3d Cir. 1987), cert. denied, 
    484 U.S. 1042
    , 
    108 S. Ct. 773
    (1988), and 1 NEWBERG & CONTE § 3.15). In
    Hoxworth,    this       court    affirmed      over    typicality    objections     the
    class certification of a (b)(3) class of securities investors who
    had   purchased     or    sold    any     of    twenty-one    securities    during    a
    specified period.          We explained that the claims stemmed solely
    from the defendant's "course of conduct in failing to advise
    purchasers    of    its    excessive       markup      policy."      Id.;   see    also
    Appleyard, 
    754 F.2d 955
    (reversing a denial of certification of a
    class challenging Alabama Medicaid admissions procedures).
    Indeed, even relatively pronounced factual differences
    will generally not preclude a finding of typicality where there
    is a strong similarity of legal theories.                            See De La Fuente v.
    Stokely-Van       Camp,      Inc.,    
    713 F.2d 225
    ,      232      (7th       Cir.    1983)
    (affirming      certification         of    a    class       challenging          a    farmworker
    recruitment system even though some of the named plaintiffs had
    not worked for the defendant company during the disputed years
    and even though it was not clear that all plaintiffs had worked
    in the specific employment situation as the named plaintiffs).
    Where an action challenges a policy or practice, the
    named plaintiffs suffering one specific injury from the practice
    can represent a class suffering other injuries, so long as all
    the injuries are shown to result from the practice.                                   See General
    Tel. Co. of Southwest v. 
    Falcon, 457 U.S. at 157-59
    , 102 S. Ct.
    at 2370-71.       In Falcon, the Supreme Court reversed certification
    of a class of Mexican Americans challenging hiring and promotion
    actions,       which   had    been     affirmed         by     the    Fifth       Circuit,       on
    typicality grounds.            Rather than standing for the proposition
    that   a   named       plaintiff       complaining           of    one     specific          injury
    (Falcon's not being promoted) cannot represent a class suffering
    perhaps    a    different      injury       (not       being      hired),     Falcon         merely
    requires that the class representative prove that there is a
    pervasive violation and that the various injuries alleged all
    stem   from     that    common       violation.          
    Id. See also
          Wilder    v.
    Bernstein, 
    499 F. Supp. 980
    , 992-94 (S.D.N.Y. 1980) (holding that
    a claim against the overall child care system states a claim
    against the entire system and each of its components).
    D.   The Requisites of Rule 23(b)(2)
    Besides      meeting       the     requirements       of     Rule     23(a),
    plaintiffs must also satisfy one of the requirements of 23(b).
    The     district        court     alternatively          based      its        denial     of
    certification on its conclusion that the plaintiffs failed this
    test.     The plaintiffs maintain that their action satisfies Rule
    23(b)(2), which is met if "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."      FED. R. CIV. P. 23(b).
    In   Weiss    v.    York      Hospital     we    explained        that    this
    requirement        is    almost       automatically        satisfied       in      actions
    primarily seeking injunctive 
    relief. 745 F.2d at 811
    .          "When a
    suit seeks to define the relationship between the defendant(s)
    and the world at large, ... (b)(2) certification is appropriate."
    
    Id. Commentators have
    also noted that the language of (b)(2)
    does not even require that the defendant's conduct be directed or
    damaging to every member of the class.                        See 1 NEWBERG & CONTE §
    4.11,   at    4-37.        It    is   the      (b)(2)   class    which     serves       most
    frequently as the vehicle for civil rights actions and other
    institutional reform cases that receive class action treatment.
    In    fact,        the     injunctive          class    provision        was     "designed
    specifically for civil rights cases seeking broad declaratory or
    injunctive relief for a numerous and often unascertainable or
    amorphous class of persons."         
    Id. at 4-39.
    What is important is that the relief sought by the
    named plaintiffs should benefit the entire class.                    The general
    applicability     requirement     of    (b)(2)       also    aims    to   prevent
    prejudice   to   absentees   by   mandating      that       the   putative   class
    "demonstrate that the interests of the class members are so like
    those of the individual representatives that injustice will not
    result from their being bound by such judgment in the subsequent
    application of principles of res judicata." 
    Hassine, 846 F.2d at 179
    .   But injunctive actions, seeking to define the relationship
    between the defendant and the "world at large," will usually
    satisfy this requirement.
    E.   Precedents in Child Welfare Cases
    A review of the jurisprudence in this area discloses
    that many very similar lawsuits challenging the provision of
    services    to   foster   children     have   been    certified      despite   the
    varieties of factual differences that characterize the plaintiffs
    in each case and despite the variety of legal claims any one
    class may make.       Many of these cases also involve claims by
    classes that include differently situated plaintiffs, who were
    not, at the time of the litigation, suffering identical injuries
    from the defendants' conduct.
    For example, in a class action brought in Vermont state
    court,16       the    court    certified      a    class    of   handicapped      children
    challenging           the    provision       of    child     welfare        services     over
    defendants'           commonality      and     typicality        objections      based    on
    factual differences of class members. The court explained:
    Certainly, the plaintiffs will have different stories
    to tell.   However, it is apparent from the pleadings
    that plaintiffs legal claims are based on a common
    factual predicate:   the defendants alleged failure to
    fulfill their duties in providing for a coordinated
    system that protects the welfare of class members. The
    individual treatment of handicapped youths, while
    important and crucial to plaintiffs' case, only serves
    to support a larger inquiry into the functioning of the
    state structure appropriated for administering programs
    that serve the handicapped.
    Jane T. v. Morse, No. S-359-86 WnC, slip op. at 4, (Vt. St. Ct.,
    June 12, 1987).
    Courts have also certified class actions alleging a
    variety of legal claims falling under the rubric of a systemic
    failure to provide certain child welfare services.                              See e.g.,
    LaShawn A. v. Dixon, 
    762 F. Supp. 959
    , 960 (D.D.C. 1991).                                 In
    that        case    the     class    challenged     the     alleged    failure     of    the
    District of Columbia Department of Human Services to initiate
    timely       investigations          into    reports   of    abuse     or    neglect,     the
    failure to provide services to families to prevent the placement
    of children in foster care, the failure to place those who may
    not     safely       remain     at    home    in   appropriate       foster     homes    and
    institutions, the failure to develop case plans for children in
    16
    Vermont's class certification statute, V.R.C.P. 23, is
    almost identical to Federal Rule 23.
    foster care, and the failure to make permanent placements.                                      The
    class included foster children under the care of the DHS and
    children reported as abused or neglected though not yet in the
    care of the DHS.           The court certified the class.
    Another federal court allowed a class of children in
    the custody of a child welfare agency to challenge the agency's
    failure to provide children with follow-up caseworkers to work
    with the family, to arrange for appropriate services, and to
    oversee the fulfillment of the children's medical and educational
    needs.      The action requested a declaratory judgment that the
    policies       violated       the     Fourteenth          Amendment,            an     injunction
    requiring      the    defendant          to     submit     a    plan       assuring       legally
    adequate care and treatment, and the appointment of a master to
    determine       the    adequacy          of     the     plan     and       to        oversee    its
    implementation.            The court granted class certification.                         B.H. v.
    Johnson, 
    715 F. Supp. 1387
    , 1389 (N.D. Ill. 1989).
    There are many additional examples of certification of
    class    actions      asserting          a    broad     range   of     grievances         closely
    resembling      those       alleged      in     this    case.        See    e.g.,       Smith   v.
    Organization of Foster Families, 
    431 U.S. 816
    , 822 n.7, 
    97 S. Ct. 2094
    , 2098 n.7 (1977) (perceiving no error in district court's
    certification         of     foster          parents,    children,         and        intervening
    natural parents); Lynch v. Dukakis, 
    719 F.2d 504
    , 506 n.1 (1st
    Cir. 1983) (affirming district court's preliminary injunction, in
    favor of a class of foster children and their natural and foster
    families, ordering state social services department to comply
    with    case    plans       and     to       review     obligations         of       foster    care
    maintenance program); Eric L. v. Bird, No. 91-376-D slip op.
    (D.N.H. Dec. 16, 1993) (certifying class of all New Hampshire
    children concerning whom the State Division of Children and Youth
    Services (DCYS) had received a complaint of abuse or neglect, who
    are the subject of a petition brought pursuant to state law or
    are   entitled    to   services   from   DCYS   as   a   result   of   court
    proceedings, and all children with disabilities who are placed
    either in twenty-four hour residential facilities or in foster
    care and whose families are in need of support services); David
    C. v. Leavitt, No. 93-C-206W slip op. (D. Utah May 5, 1993)
    (certifying over adequacy-of-representation objections a class of
    all children who are or will be in Utah's DHS custody or will be
    placed in a foster home, a group home, institutional care or a
    shelter and children who are or will be known to DHS by virtue of
    report of abuse or neglect).
    Admittedly, these cases did not (with the exception of
    Jane T.) discuss commonality and typicality; nevertheless, the
    trial judges had to be satisfied that the requisites of Rule 23
    (or its state law equivalent) were met in order to certify the
    classes.     We find it persuasive that these courts have found
    quite similar actions to comply with Rule 23's requirements.
    III.   DID THE DISTRICT COURT ABUSE ITS DISCRETION
    IN DENYING CLASS CERTIFICATION?
    Appellants contend that the district court abused its
    discretion when it denied certification.        We agree.    In our view,
    the district court applied an overly restrictive legal standard
    in evaluating the requirements of Rule 23 and in denying class
    certification.                 Although     the     court    took    cognizance      of    cases
    holding that common questions need only exist -- not predominate
    -- for (b)(2) actions, it nevertheless proceeded to demand higher
    demonstrations               of   commonality        and    typicality      than     the      rule
    requires.               It   is    axiomatic       that     errant    conclusions        of   law
    constitute an abuse of discretion.                            See International Union,
    United Auto, etc. v. Mack Trucks, Inc., 
    820 F.2d 91
    , 95 (3d Cir.
    1987), cert. denied, 
    499 U.S. 921
    , 
    111 S. Ct. 1313
    (1991).
    A.     Commonality
    As to commonality, the district court concluded that:
    "Not        one    of    the      common    legal    issues     asserted     by     plaintiffs
    applies to every member of the proposed class . . . .                                         The
    children's             claims      are     based    upon     different      legal     theories
    depending on the individual circumstances of that child . . . .
    The services required to meet the needs of one child are vastly
    different from that of another child."                         (Mem. Op. at 7).17          These
    statements are at odds with the applicable standard.                                Plaintiffs
    are challenging common conditions and practices under a unitary
    regime.           All the children in the class are subject to the risk
    that they will suffer from the same deprivations resulting from
    the    DHS's       alleged        violations.         Because       the   nature    of    foster
    17
    Unless otherwise specified, Mem. Op. citations refer to
    the Memorandum and Opinion issued on January 6, 1992.
    placement     is    transitory       and    thus    inherently     variable,     it   is
    unreasonable to require that all plaintiffs suffer from the same
    injury simultaneously.
    Defendants maintain that "[p]roving systemwide failure
    does not establish that the law has been violated as to any
    child."   (Br.      of   Appellees     at    16).       However,     the    commonality
    standard requires only that a putative class share either the
    injury or the immediate threat of being subject to the injury.
    
    See supra
    at typescript 18.            Here, systemwide deficiencies either
    violate class members' rights currently or subject them to the
    risk of such a violation.
    Furthermore, all of the plaintiffs seek to force the
    DHS to comply with its statutory mandates, and all of their
    injuries alleged here would be cured if DHS remedied the systemic
    deficiencies.        Insofar as the children challenge the scheme for
    the provision of child welfare services, their claims share a
    common legal basis.          Class certification for a similar attack on
    New    York's      child    welfare        system     was   upheld     in   Wilder     v.
    Bernstein, 
    499 F. Supp. 980
    , 994 (S.D.N.Y. 1980) ("[In alleging
    that   defendants]         created    an    overall     child-care      system   which
    discriminates on the basis of race and religion, plaintiffs have
    stated    a   claim      against     the     entire    system    and    each    of    its
    components.").           Thus, we find the            plaintiffs' attack on the
    DHS's systemic deficiencies in providing legally mandated child
    care services to be a sufficiently common legal basis to support
    class certification here.
    The    differing         degree      and   nature      of    the    plaintiffs'
    injuries also do not preclude a finding of commonality.                             Just as
    in Califano,        where     the     amounts      of   each    class      member's      claim
    differed but where the class members nonetheless shared a common
    statutory claim, the putative class members in this case share
    the common legal claim that DHS's systemic deficiencies result in
    widespread     violations           of    their    statutory        and    constitutional
    rights,     irrespective         of      their    varying      individual         needs    and
    complaints.        As in Califano, where the plaintiffs challenged the
    conduct of the defendant towards the class, the children here
    challenge DHS's conduct, which is generally applicable to them.
    Also, as in Califano, where it did not matter that the amounts of
    the individuals' claims differed, it does not matter here that
    the children suffer in varying ways from the DHS's violation of
    its statutory mandates.
    When it concluded that "not one factual issue pertains
    to the entire proposed class," the district court committed the
    error of overly fragmenting the plaintiffs' claims.                               A similar
    approach taken in another case, Ward v. Luttrell, 
    292 F. Supp. 165
    (E.D. La. 1968) (denying certification to a claim by female
    workers challenging state labor laws that denied overtime pay),
    has been characterized as "contrary to the clear language of the
    rule" and "irreconcilable with the majority of decisions on the
    common question issue."               See 1 NEWBERG & CONTE §3.11, at 3-59.                 It
    is   true    that       each     plaintiff         here     has      his    or     her     own
    circumstances,          but    every       plaintiff        shares         the    essential
    circumstance       of    being      in    the     custody      or   the    care     of    DHS.
    Individual          factual    differences             do        not     affect     the      central
    allegation          that     the     DHS     violates             various         statutory      and
    constitutional rights in its provision of child care services to
    the class.
    Because of the district court's capacity to bifurcate
    (or trifurcate) the proceedings, the individual circumstances of
    the children, even if they affect the issues presented by this
    case, would not preclude certification.                                And in this suit for
    declaratory relief, the court can substantially avoid examining
    those individualized circumstances, for the relief requested by
    the     plaintiffs         focuses      entirely            on     the     effort       to    reform
    defendants' conduct so that it complies with the various legal
    provisions          raised    here.          Thus,          while        the      children      will
    undoubtedly be affected by the district court's rulings, the
    court       need    not    consider        the    individual             children's          peculiar
    circumstances in fashioning its order.
    The court's heavy emphasis on the factual differences
    of    the    6,000     children      also        suggests          that    it     did     not   take
    sufficient         cognizance      of      the    nature          of     the    relief       sought.
    Because       the    complaint       does        not    seek           damages,     the      factual
    differences are largely irrelevant.                              The complaint prays for
    declaratory and injunctive relief.                      Factual differences among the
    situations of the plaintiffs will thus not preclude the district
    court from determining whether the class claims are meritorious,
    or from ordering the appropriate relief in the event that they
    are.
    The     district     court's    rendering      of     the    commonality
    requirement     also    goes      astray    in   its    analysis    of    Hassine      v.
    Jeffes, 
    846 F.2d 169
    (3d Cir. 1988).                   Notwithstanding the clear
    language of that decision, the district court here seems to have
    relied on Hassine to suggest that all of the named plaintiffs
    must suffer from the same harm.             (Mem. Op. at 7).           The plaintiffs
    in Hassine, however, complained of over-crowding, though they
    were not actually double bunked, and of deficient medical and
    mental health services, though they did not at that time require
    either of those services.               It was enough for the Hassine court
    that some plaintiffs might at some point require a variety of
    those services and thus be subjected to the risk of deprivation
    by    the   pervasively      deficient     
    system. 846 F.2d at 178
      n.5.
    Obviously,     not    all    of   the    Hassine   class       members    would      need
    medical services, or the same medical services.                    By the reasoning
    of Hassine, then, the fact that some of the plaintiffs here do
    not need some of the services that are allegedly deficient does
    not, contrary to the district court's conclusion, preclude them
    from attacking a system that fails to provide those services.
    The cases cited by defendants, where certification was
    denied on commonality grounds, are also easily distinguished.                          In
    Stott v. Haworth, 
    916 F.2d 134
    (4th Cir. 1990), the court denied
    certification of a class of government employees who had suffered
    adverse employment consequences allegedly resulting from improper
    partisan concerns.          In that case, unlike this one, whether or not
    the     asserted      violations         existed       depended     on        individual
    determinations of the nature of the position of each plaintiff.
    Here, the violations exist independently of individual children's
    circumstances; it is established by reference to the objective
    statutory and constitutional criteria.18
    In Stewart v. Winter, 
    669 F.2d 328
    (5th Cir. 1982),
    prisoners challenging the conditions of prisons throughout the
    state of Mississippi were denied certification on commonality
    grounds.          The Stewart court was daunted by the prospect of 82
    separate hearings to evaluate under the appropriate totality-of-
    the     circumstances          test   whether    each    of   the    counties'     jails
    violated the plaintiffs' Eighth Amendment rights.                       The situation
    here        is   quite   different.        The   plaintiffs      challenge    unitary
    systems and a much more localized service, i.e., the provision of
    child        welfare     services     in   Philadelphia.            Furthermore,     the
    question of liability in this case can be evaluated relative to
    the applicable (and generalized) statutory standards, unlike in
    Stewart          where   the   Eighth   Amendment       claims   would    necessitate
    individualized hearings.              At all events, we are dubious as to the
    correctness of Stewart, and note that in Pennsylvania a similar
    statewide class action has been certified and is ongoing (at the
    trial stage).            See Austin v. Pennsylvania Dep't of Corrections,
    No. 90 Civ. 7497 (E.D. Pa. certified March 5, 1992)
    18
    Defendants also cite In re Fibreboard Corp., 
    893 F.2d 706
    (5th Cir. 1990), as an example of a case that failed to meet
    commonality requirements.      However, this case is clearly
    distinguishable.   Fibreboard was a mass tort action seeking
    damages, and certification was denied on the basis that common
    issues did not predominate, the (b)(3) inquiry, not that there
    was no common issue, the proper (a)(2) inquiry.
    In contrast to the cases we have distinguished, this
    case clearly presents common legal issues under the applicable
    standard.       The children challenge DHS's pattern of conduct, which
    is    subjecting       them    all      to    violations         of    their       statutory       and
    constitutional           rights.          Because         of    the     dearth         of    trained
    caseworkers, for example, DHS (allegedly) fails to investigate
    reports of abuse and neglect promptly or adequately and fails to
    reliably      provide      the    children         in     its    care       with      written      case
    plans, with appropriate placements, with proper care while in
    custody, and with periodical dispositional hearings.                                         Similar
    violations of the rights of children in custody to be free from
    harm    can    (allegedly)         be     traced        to     the    scarcity         of   properly
    trained       foster      parents        or    to       DHS's        lack    of       an    adequate
    information system.
    Moreover,        trial      will      not      require        an     individualized
    inquiry into a vast network of institutions.                                     It is only the
    Philadelphia DHS's provision of the mandated services that is at
    issue,    and      the   nature      of      the    violations         can       be    verified     by
    reference to the applicable statutes; it is not necessary to
    examine each plaintiff's circumstances to evaluate the claims.
    The    fact     that     all     plaintiffs         are        subject       to       the   risk    of
    deprivation of services to which they are currently entitled (or
    which they may at some point in the future require) suffices to
    support their common claim against DHS.
    B.    Typicality
    The      district      court         also      misconstrued             the   relevant
    standard of typicality.                 As with its analysis of the commonality
    issue, the court appeared to rely on the proposition that the
    plaintiffs were not challenging precisely the same conditions and
    practices because the services required by law differ depending
    on a child's individual situation.                However, General Tel. Co. of
    the Southwest v. 
    Falcon, supra
    , assures that a claim framed as a
    violative practice can support a class action embracing a variety
    of injuries so long as those injuries can all be linked to the
    practice.       Plaintiffs in this case attack a systemic failure by
    DHS to provide a broad range of legally mandated services.                             At
    any one time, the plaintiffs do not suffer from precisely the
    same deficiency, but they are all alleged victims of the systemic
    failures.        Moreover,     they     each    potentially        face    all   of   the
    system's        deficiencies.           A    child        not    currently       needing
    psychological services may well require such services sometime
    while in DHS custody.             A child lucky enough to be receiving
    permanency planning, for example, faces the immediate threat of
    losing that service in a system characterized by the widespread
    absence of such services.              Because being subject to the risk of
    an injury suffices under Hassine for both the commonality and the
    typicality inquiries, plaintiffs can allege these harms.
    Furthermore,        the     fact     that      the    common     theme     of
    attacking       DHS's    systemwide     failure      to    comply   with    its   legal
    mandates is equally central to the claims of the named plaintiffs
    as   it    is    to     the   claims    of     the   absentees       reinforces       the
    characterization of the plaintiffs' claims as typical.                           Indeed,
    this theme is central to each plaintiff.                        It bears remembering
    that the plaintiffs here seek only injunctive and declaratory
    relief; there are no other claims that could compromise the named
    plaintiffs' pursuit of the class claims.
    Because there are no individual claims as such, the
    differences among the plaintiffs do not affect the central claim
    that DHS violates a variety of the children's (putative class
    members')      constitutional        and    statutory        rights      by     failing    to
    provide    mandated       welfare     services.          We       emphasize      that     the
    individual      differences     in    the    children's           circumstances         might
    indeed     militate      against     certification           if    the    action       sought
    certification         under   23(b)(3)      because      a    court      would     need    to
    evaluate      those    differences     in    the    event         that   the    plaintiffs
    prevailed and were entitled to monetary damages.                           In fashioning
    injunctive relief, however, a court would focus on the defendants
    rather than on the plaintiffs. Whether there are fifty or 6,000
    plaintiffs, as in this case, the court's task is essentially the
    same.      The court would not need to assure that every child
    received an "appropriate" case plan, for instance.                            Instead, the
    court would assure that the DHS had an adequate mechanism for
    generating and monitoring appropriate case plans.                          To the extent
    that some of the claims raised by the plaintiffs truly do require
    the court to engage in individualized determinations, the court
    retains the discretion to decertify or modify the class so that
    the   class    action     encompasses       only   the       issues      that    are    truly
    common to the class.          See Fed. R. Civ. P. 23(c)(4).
    Moreover, the prospect of class certification in this
    case does not present the sorts of dangers that the typicality
    requirement was intended to avoid.                 There is no danger here that
    the named plaintiffs have unique interests that might motivate
    them to litigate against or settle with the defendants in a way
    that prejudices the absentees.                    Many courts have noted that the
    "individual      interest       in    pursuing       litigation    where      the   relief
    sought is primarily injunctive will be minimal."                       
    Weiss, 745 F.2d at 808
    (citing 7 CHARLES WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &
    PROCEDURE § 1771 (1972)).                 Indeed, because this suit seeks only
    declaratory      and    injunctive          relief,    the     named   plaintiffs      are
    simply not asserting any claims that are not also applicable to
    the absentees.          The common claims here are the only claims and
    must perforce occupy the same position of centrality for all
    class    members.         The        putative       class    clearly   satisfies       the
    typicality    requirement            of    Rule    23(a)(3);     the   district      court
    abused its discretion in ruling that it did not.
    C.     The 23(b)(2) Showing
    The   district          court    also    found     that   the    plaintiffs
    failed   to      make    the    requisite         showing      under   Rule    23(b)(2),
    concluding       that    the    claims        for     relief    were   not     generally
    applicable to the class. (Mem. Op. at 21).                        In so holding, the
    court failed to give effect to the proper role of (b)(2) class
    actions in remedying systemic violations of basic rights of large
    and often amorphous classes.                 While it is true that not all of
    the orders issued will immediately benefit every plaintiff, every
    plaintiff     will      benefit       from    relief        designed   to    assure    DHS
    compliance with the applicable standards.
    Plaintiffs have alleged that systemic failure causes
    the DHS to violate various mandates under federal statutory and
    constitutional provisions.               Because the children in the system
    are comparably subject to the injuries caused by this systemic
    failure, even if the extent of their individual injuries may be
    affected by their own individual circumstances, the challenge to
    the system constitutes a legal claim applicable to the class as a
    whole.     An order forcing the DHS to comply with their statutory
    and   constitutional         mandates     would     constitute        relief      generally
    applicable to the entire putative class.                      Indeed, the violations
    alleged here are precisely the kinds targeted by Rule 23(b)(2).
    The writers of Rule 23 intended that subsection (b)(2) foster
    institutional          reform   by      facilitating         suits     that       challenge
    widespread      rights       violations      of    people     who    are    individually
    unable    to    vindicate       their    own      rights.       See       Rules    Advisory
    Committee Notes to 1966 Amendments to Rule 23, 
    39 F.R.D. 102
    (1966); 1 Newberg & Conte, § 4.11 at 4-39.
    The fact that the plaintiffs in this case seek only
    injunctive       and     declaratory      relief,       not     individual         damages,
    further    enhances       the   appropriateness         of    the     class     treatment.
    Clearly,    this       action   aims    to     define   the    relationship          of the
    defendants      to     the   universe     of      children    with     whose      care   the
    defendants are charged.           Plaintiffs simply ask the district court
    to declare the DHS's current provision of child welfare services
    to the plaintiffs to be violative of the cited statutory and
    constitutional provisions and to order DHS to implement a system
    that would enable it to comply with its legal mandates in the
    provision      of    these    services.         Furthermore,        all    of     the   class
    members will benefit from relief which forces the defendant to
    provide, in the manner required by law, the services to which
    class members either are currently or at some future point will
    become entitled.
    While it is true that commonality, typicality, and the
    Rule 23(b)(2) general applicability requirements all manifest a
    concern about judicial efficiency and manageability, the district
    court's arguments on this score miss the mark.                The district
    court clearly erred by finding that "[i]t would be impossible to
    conceive of an Order this court could make granting class-wide
    injunctive relief which could address the specific case-by-case
    deficiencies in DHS's performance . . . ." (Mem. Op. 10/13/93 at
    4-5).    But a court could, for example, order the DHS to develop
    training protocols for its prospective foster parents.               Such an
    order would not, contrary to the district court's view, "create
    an enforcement problem of staggering proportions."               
    Id. The district
    court will thus not need to make individual, case-by-
    case determinations in order to assess liability or order relief.
    Rather, the court can fashion precise orders to address specific,
    system-wide deficiencies and then monitor compliance relative to
    those orders.             Other    courts   have   ordered     the     relief
    required by these types of cases without finding it to be either
    unworkable or unenforceable.       For example, in L.J. v. Massinga,
    
    699 F. Supp. 508
    , 510 (D. Md. 1988), the court approved a consent
    decree   essentially   embodying    the   terms    of   the    preliminary
    injunction it had previously issued and implemented.            The decree
    required the defendant to review the status of each foster home
    where there had been a report of maltreatment; visit each child
    in a foster home on a monthly basis; visit each child who had
    been the subject of a report of maltreatment on a weekly basis;
    assure sufficient staff and resources to ensure that appropriate
    medical care was rendered; and provide a written copy of any
    complaint of maltreatment of a foster child to the juvenile court
    and the child's attorney.       This is precisely the sort of order
    that is requested in this case.        Because this suit challenges
    conduct generally applicable to the class and because the court
    can enter appropriate declaratory and injunctive relief, this
    action patently satisfies the (b)(2) standard.
    IV.    CONCLUSION
    Because the claims alleged in the plaintiffs' complaint
    clearly meet the requirements of Rule 23, the district court's
    determination   that   they   did   not   constitutes   an   abuse   of
    discretion.   We will therefore reverse the orders of the district
    court and remand for further proceedings consistent with this
    opinion.   In so doing, we intimate no view on the merits, nor,
    should the plaintiffs succeed on merits, on the scope of the
    court's remedial power or on the appropriate remedy.
    

Document Info

Docket Number: 94-1381

Citation Numbers: 43 F.3d 48

Judges: Becker, Cowen, Garth

Filed Date: 12/15/1994

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (26)

martin-eisenberg-and-arthur-nissen-on-behalf-of-themselves-and-all-others , 766 F.2d 770 ( 1985 )

philip-f-valenti-sara-nichols-betty-clift-dorothy-ferebee-eric-bradway , 962 F.2d 288 ( 1992 )

LJ by and Through Darr v. Massinga , 699 F. Supp. 508 ( 1988 )

Califano v. Yamasaki , 99 S. Ct. 2545 ( 1979 )

Troutman v. Cohen , 661 F. Supp. 802 ( 1987 )

Ward v. Luttrell , 292 F. Supp. 165 ( 1968 )

LaShawn A. v. Dixon , 762 F. Supp. 959 ( 1991 )

alma-a-appleyard-pearl-snyder-as-personal-representative-of-elizabeth-j , 754 F.2d 955 ( 1985 )

hassine-victor-fox-aaron-johnson-david-v-jeffes-glenn-commissioner , 846 F.2d 169 ( 1988 )

rose-grasty-pat-poore-and-barbara-scullen-on-behalf-of-themselves-and , 828 F.2d 123 ( 1987 )

In Re Fibreboard Corporation, in Re Pittsburgh Corning ... , 893 F.2d 706 ( 1990 )

samuel-winston-jr-a-minor-by-his-parents-maryann-and-samuel-winston , 948 F.2d 1380 ( 1991 )

Patricia Lynch v. Michael S. Dukakis , 719 F.2d 504 ( 1983 )

malcolm-weiss-in-nos-82-3507-82-3580-cross-appellant-in-no-82-3581-v , 745 F.2d 786 ( 1984 )

bobby-stott-joseph-register-lonnie-michael-cayton-on-behalf-of-themselves , 916 F.2d 134 ( 1990 )

International Union, United Automobile, Aerospace and ... , 820 F.2d 91 ( 1987 )

Eugene Stewart v. William Winter, Individually and in His ... , 669 F.2d 328 ( 1982 )

In Re "Agent Orange" Product Liability Litigation Mdl No. ... , 818 F.2d 145 ( 1987 )

liberty-alliance-of-the-blind-lillian-carney-john-coleman-oliver-ewell , 568 F.2d 333 ( 1977 )

Pedro De La Fuente v. Stokely-Van Camp, Inc., Marcelino ... , 713 F.2d 225 ( 1983 )

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