Neal Ex Rel. Kanter v. Casey

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Precedential or Non-Precedential: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
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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.