Fifth Circuit Faults District Judge for Failing to Make Extensive Commonality Findings
Michael F. Bahler | Bloomberg Law
The U.S. Court of Appeals for the Fifth Circuit overturned the certification of a class of Texas children in the custody of an allegedly inadequate long-term foster care system, holding that the district court did not adhere to the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).
The lawsuit was commenced on behalf of approximately 12,000 Texas children who were in the state’s foster care system. According to plaintiffs, the program was plagued by systematic deficiencies, including the failure to maintain an adequate caseworker staff to monitor the safety and well being of all the children. Asserting constitutional violations, plaintiffs moved to certify multiple Federal Rule of Civil Procedure 23(b)(2) injunctive relief classes.
On June 2, 2011, just weeks prior to the Wal-Mart decision, the district court granted certification to the classes. It found that they satisfied Rule 23(a)(2)‘s commonality requirement because the class claims raised questions that “relate not to the individual story of each child, but rather the alleged shortcomings of the . . . system.” Noting that all the class members were subject to the alleged deficiencies in the system, it concluded that the common questions were whether the state employed a large enough caseworker staff to perform properly, whether the foster care placements met the class members’ needs, and whether there was adequate monitoring and oversight to prevent abuses.
In Wal-Mart, the Supreme Court stated that commonality was a significant hurdle that mandated not only overlap among individual class members’ claims but also enough connective “glue” so that classwide proof would be able to decide the question of liability for each plaintiff. Following the decision, the district court affirmed its ruling, finding that the alleged deficiencies in the foster care system were the “glue” binding the children’s claims together.
On appeal, the Fifth Circuit stated that “[a]lthough the district court’s analysis may have been a reasonable application of pre-Wal-Mart precedent, the Wal-Mart decision has heightened the standards for establishing commonality under Rule 23(a)(2), rendering the district court’s analysis insufficient.” According to the Court, Wal-Mart requires that a district court explain its reasoning on commonality with specific references to the claims, defenses, substantive law, and relevant facts. It faulted the district court for not identifying a key question central to each child’s individual claims. It, however, declined to decide the commonality issue on appeal, as the Supreme Court had done in Wal-Mart, and instead remanded the case for a new determination.
It further observed that under Wal-Mart, Rule 23(b)(2) certification is only appropriate when a single injunction or declaration would offer relief to each class member and not when each class member would be entitled to a separate injunction or declaration. The Court ruled that some of the certified classes failed to satisfy this requirement because they included claims for individualized relief. It concluded that “[t]he common thread running through the proposed class’s current deficiencies under both Rule 23(a)(2) and 23(b)(2) is that it has attempted to aggregate a plethora of discrete claims challenging aspects of Texas’s [foster care system] into one ‘super-claim.’” It suggested that the way around this problem might be for the district court to certify subclasses on remand.
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