Civil Procedure - Class Actions - Fifth Circuit Holds That District Court Failed to Conduct Rigorous Class Certification Analysis in Light of Wal-Mart Stores, Inc. V. Dukes

Harvard Law Review, February 2013 | Go to article overview
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Civil Procedure - Class Actions - Fifth Circuit Holds That District Court Failed to Conduct Rigorous Class Certification Analysis in Light of Wal-Mart Stores, Inc. V. Dukes


Before a class can be certified, a court must conduct a "rigorous analysis" of the four prerequisites for class certification set forth in Federal Rule of Civil Procedure (FRCP) 23(a). (1) As a result of conflicting Supreme Court guidance prior to 2011, circuit courts disagreed regarding whether courts must examine the merits of a case in order to determine whether these prerequisites had been satisfied. (2) In Wal-Mart Stores, Inc. v. Dukes, (3) however, the Supreme Court stated that courts must examine the merits in some cases, and tightened the commonality prerequisite, (4) increasing the rigor of the required analysis. Recently, in M.D. ex rel. Stukenberg v. Perry, (5) the Fifth Circuit vacated an order issued by the District Court for the Southern District of Texas that certified a class comprising foster children in Texas state custody in light of the Supreme Court's opinion in Wal-Mart. The court held that the district court had failed to perform a sufficiently rigorous analysis of the commonality requirement of FRCP 23(a)(2), and that the certified class lacked cohesiveness, as required by FRCP 23(b)(2). (6) M.D. showcased Wal- Mart's heightened procedural requirements, which this comment dubs "class action hard look review," and which will increase the cost of certifying a class and decrease the viability of the class action as a vehicle for structural change.

The plaintiffs in M.D. were foster children in the custody of Texas's Department of Family and Protective Services (DFPS). (7) DFPS provides children with substitute care and therapeutic services (8) and "engage[s] in permanency planning for children in its [permanent custody] ... to meet the child's safety, permanency, and well-being needs." (9) The plaintiffs alleged classwide injuries caused by systemic deficiencies in Texas's management of children in its permanent custody--for example, that DFPS lacked sufficient caseworkers to perform tasks critical to the well-being of class members. (10) The plaintiffs claimed that Texas violated the class members' substantive due process rights to freedom from harm while in state custody, to liberty, to privacy, and to associational family relationships, as well as their procedural due process rights to state law entitlements. (11) The plaintiffs sought classwide declaratory and injunctive relief to remedy these systemic failures in the proper management of the children in permanent custody. (12)

The Southern District of Texas certified a class consisting of the 12,000 children then in DFPS's permanent custody, as well as all future children who would be in its custody. (13) A finding of commonality, the court explained, required only that the class share a single common question of law or fact--that is, "one issue whose resolution will affect all or a significant number of the putative class members." (14) The existence of different claims or a degree of individualized analysis would not be fatal to commonality. (15) The court found that the alleged shortcomings in DFPS's foster care system provided sufficient common questions of fact. (16) The court also found that whether these alleged systemic deficiencies resulted in widespread violations of statutory and constitutional rights provided common questions of law. (17) Next, the court found sufficient cohesiveness to certify the class under FRCP 23(b)(2) because any relief would benefit the entire class. (18) Injunctive relief "aims to improve the DFPS [permanent custody] system as a whole, not to afford relief to individual Plaintiffs." (19)

The Fifth Circuit reversed. (20) Writing for the panel, Judge Garza vacated the class certification order and remanded the case to the district court. (21) The court found the common questions of fact identified by the district court deficient. For example, the court explained that "the district court failed to describe how" resolving the question of whether DFPS failed to employ a sufficient number of caseworkers would "decide an issue that is central to the substantive due process claims, family association claims, or procedural due process claims of every class member at the same time.

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Civil Procedure - Class Actions - Fifth Circuit Holds That District Court Failed to Conduct Rigorous Class Certification Analysis in Light of Wal-Mart Stores, Inc. V. Dukes
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