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    January 25, 2015 Practice Points

    Third Circuit Holds That Rule 23(B)(2) Classes Do Not Have To Be Ascertainable

    Ascertainability is not a requirement for certification of a Rule 23(b)(2) class seeking only injunctive and declaratory relief

    by David Garner

    In a case of first impression in the Third Circuit, the court in Shelton v. Bledsoe, No. 12-4226 (3rd Cir. January 7, 2015), held that ascertainability is not a requirement for certification of a Rule 23(b)(2) class seeking only injunctive and declaratory relief.

    The ruling arises from a suit by Norman Shelton, an inmate within the Special Management Unit (SMU) of the United States Penitentiary at Lewisburg, Pennsylvania. Shelton sued prison officials for alleged Eighth Amendment violations arising from defendants’ alleged practice of placing inmates in cells with other inmates known to be hostile to them and failing to protect such inmates from inmate-on-inmate violence. 

    Shelton sought injunctive and declaratory relief on behalf of a class of “[a]ll persons who are currently or will be imprisoned in the SMU program at USP Lewisburg” so long as the prison officials persist in the allegedly unconstitutional practices.

    The trial court denied Shelton’s motion for class certification, concluding that the proposed class was not “objectively, reasonably ascertainable.”  Shelton appealed.

    In vacating the trial court’s certification denial, the Third Circuit noted that while “[t]he ascertainability requirement ensures that the procedural safeguards necessary for litigation as a (b)(3) class are met . . . it need not (and should not) perform the same function in (b)(2) litigation.” 

    In contrast to (b)(3) classes, where ready identification of class members “serves several important objectives”—including facilitating the required notice/opportunity to opt out and protecting defendants by ensuring that those bound by the judgment are identifiable—Rule 23(b)(2) is a “remarkably different litigation device[],” in which such objectives “either do not exist or are not compelling.” Rather, the enforcement of an injunctive or declaratory remedy “usually does not require individual identification of class members.”

    Further bolstering its conclusion, the court pointed to an Advisory Committee’s note to Rule 23, in which actions in the civil-rights field are cited as illustrative examples of appropriate (b)(2) classes, and noting that such classes are “usually one[s] whose members are incapable for specific enumeration.”

    Finally, the court pointed to consistent rulings from the First and Tenth Circuits, both of which have previously addressed this issue directly and likewise explicitly rejected an ascertainability requirement for 23(b)(2) classes.

    David D. Garner is a partner with Lewis Roca Rothgerber LLP in Phoenix, Arizona.

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