To obtain class certification pursuant to Federal Rule of Civil Procedure Rule 23, the moving party must meet the four prerequisites of Rule 23(a): numerosity, typicality, commonality, and adequacy of representation. At least one subdivision of Rule 23(b) must also be satisfied.
Due to the restrictions imposed by the Supreme Court?s sovereign immunity jurisprudence,1 it is not uncommon for disability rights litigants to seek only prospective injunctive and declaratory relief against a state official. Thus, their class action cases typically seek certification under Rule 23(b)(2), which applies where 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)(2).
Defendants have opposed certification of (b)(2) classes with the assertion that the state will comply with any injunction the court should issue. This argument, sometimes called the ?necessity doctrine,?2 says that class certification is not needed because the relief, if granted, will automatically extend to all affected parties. Certification is a mere formality since the benefits plaintiffs seek would flow to the class members regardless of certification.
While the argument dates back to the 1970s,3 it has been invigorated in recent years and is now being asserted in a wide variety of cases involving, for example, Medicaid cost sharing,4 Medicaid due process,5 Medicaid Early and Periodic Screening, Diagnosis and reatment,6 the Medicaid nursing home reform act,7 Food Stamps,8 and the Americans with Disabilities Act.9
This Fact Sheet discusses the status of courts? acceptance of the no-need argument, describes problems that are posed by the argument, and offers suggestions for how advocates can avoid its application.
Judicial acceptance of the necessity argument
The ?necessity requirement . . . refers to a practice, followed by several circuits, of denying class certification under Rule 23(b)(2), when a class is not needed to obtain the same relief? that the class is requesting.10 The argument was accepted, early on, by the Second Circuit Court of Appeals.11 It has also been accepted by the Fourth and Tenth Circuits.12
Not all courts accept the argument, however, and there is wide variation among the circuits. The Seventh Circuit has expressly rejected the necessity doctrine, stating that ?class certification may not be denied on the ground of lack of ?need? if the prerequisites of Rule 23 are met.?13 District courts in three other circuits have questioned it.14 The Fifth Circuit has expressly declined to decide whether ?necessity can play a role in class certification decisions.?15
Moreover, where the no-need argument has been accepted, it has been limited or refined in subsequent applications. For example, the Eighth Circuit has applied the doctrine where the constitutionality of a statute was at issue.16 Significantly, lower courts in the Second Circuit, where the doctrine was seminally described in Galvan, have narrowed the circumstances for its application. For example, lower courts have refused to accept the argument where there is a claim for money damages.17 A recent district court decision, D.D. v. New York City Board of Education, suggests four factors to be reviewed to decide if class certification would be ?superfluous?:
First, an affirmative statement from the government defendant that it will apply any relief across the board militates against the need for class certification. Second, withdrawal of the challenged action or nonenforcement of the challenged statute militates against the need for class certification. Third, if the relief sought is merely a declaration that a statue or policy is unconstitutional, denial of class certification is more appropriate than where plaintiffs seek complex, affirmative relief. Fourth, class certification is necessary if plaintiffs? claims are likely to become moot.18
The need to respond to the no-need argument
The necessity argument should be aggressively disputed at the district court level ?as it would effectively render Rule 23(b)(2)?s procedures obsolete in actions for injunctive relief, at least where a government agency is a defendant.?19 ?[T]he idea that a class may be certified only if ?necessary? flies in the face of the Federal Rules.?20 As noted by the Advisory Committee Notes, Rule 23(b)(2) is
intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class a whole, is appropriate. . . . The subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages. . . . illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class. . . 21
Newberg on Class Actions confirms, ?A need requirement finds no support in Rule 23 and, if applied, would entirely negate any proper class certifications under Rule 23(b), a result hardly intended by the Rules Advisory Committee.?22 Moreover, in Califano v. Yamasaki, the U.S. Supreme Court held that a class can be certified under (b)(2) even if the plaintiffs have other avenues of relief available to them and there is no absolute need for a class action.23
Indeed, it is imperative for litigants to offer a well-organized response to the necessity argument at the district court level. Whether to certify a class is within the discretion of the district court. The court of appeals will not reverse the district court absent an abuse of discretion.24
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