Although not explicitly set forth in Rule 23, an essential prerequisite of any action under Rule 23 is that there must be an identifiable “class” at the moment of certification. The shorthand term commonly used to refer to this requirement is “ascertainability.” Last week the Third Circuit Court of Appeals issued a decision explicitly rejecting an ascertainability requirement for Rule 23(b)(2) classes seeking only injunctive or declaratory relief.
The case before the Court involved a putative class of certain federal inmates seeking injunctive and declaratory relief for Eighth Amendment violations based on allegations that officials at their prison engage in a pattern, practice, or policy of assigning inmates with a known history of hostility towards each other to share the same holding cell, and that the injurious effects of this practice are exacerbated by another prison policy preventing guards from promptly intervening when inmate-on-inmate violence erupts inside a cell. The plaintiff filed a motion for class certification under Rule 23(b)(2), which the district court denied.
On appeal, the Third Circuit considered whether ascertainability is required uniformly for all types of classes certified under Rule 23. The Court observed that in the context of a (b)(3) class seeking money damages and requiring notice and a right to opt out, ascertainability is necessary to eliminate administrative burdens posed by class member identification difficulties, to protect absent class members by facilitating the best notice practicable, and to protect defendants by ensuring that those persons who will be bound by the final judgment are clearly identifiable. But these same interests either do not exist or are not compelling in the context of a (b)(2) class, which focuses more heavily on the indivisible nature of the remedy sought. Given that there is no right to opt out from a class certified under (b)(2) (and assuming that none is provided), the challenged conduct can be enjoined or declared unlawful only to the benefit of all class members or to the benefit of none at all. Because the injunctive or declaratory relief obtained by one class member will affect all other members, the identities of individual class members are therefore less critical in a Rule 23(b)(2) action than in a Rule 23(b)(3) action.
Drawing support for this interpretation from consistent interpretations found in the Advisory Committee notes pertaining to Rule 23(b)(2) and the written opinions of several sister circuits, the Third Circuit concluded that the judicially-created, implied requirement of ascertainability—that the members of the class be capable of specific enumeration—is inappropriate for (b)(2) classes seeking only injunctive and declaratory relief. For such classes to be sufficiently identifiable, they must simply meet the requirements of Rule 23(a) and (b)(2), and be capable of the type of description by a “readily discernable, clear, and precise statement of the parameters defining the class,” as required by Rule 23(c)(1)(B). Applying this standard to the facts before it, the Court concluded that the proposed class definition’s inclusion of future—and, strictly speaking, unascertainable–inmates of the particular prison in question was not a bar to class certification.