Baby Neal v. Casey

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 declaratory 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.

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. 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.

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 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 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." 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. 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 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.

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 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

II. THE LEGAL REQUISITES FOR CLASS CERTIFICATION

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, 95 S.Ct. 2415, 44 L.Ed.2d 679 (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., 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 Sec. 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, 72 L.Ed.2d 740 (1982). Despite their similarity, however, commonality and typicality are distinct requirements under Rule 23. See Hassine v. Jeffes, 846 F.2d 169, 177 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, 105 S.Ct. 1777, 84 L.Ed.2d 836 (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., Sec. 1763, at 198, and that factual 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").

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. In re "Agent Orange" Prod. Liab. Lit., 818 F.2d 145, 166-67 (2d Cir.1987); Weiss, 745 F.2d at 808-09. 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 Sec. 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 p 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., Sec. 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, 61 L.Ed.2d 176 (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., Sec. 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.

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, p 23.06-02; 1 NEWBERG & CONTE, Sec. 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 Sec. 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, 98 L.Ed.2d 860 (1988), and 1 NEWBERG & CONTE Sec. 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 at 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).

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, 745 F.2d at 811 we explained that this requirement is almost automatically satisfied in actions primarily seeking injunctive relief. "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 Sec. 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.

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.Super.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 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 childrens' 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, 53 L.Ed.2d 14 (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