# Neese v. Becerra

> District Court, N.D. Texas · October 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10452172

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** October 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10452172

## How later opinions describe it (automated extraction)

- stating standing is assessed “at the time the action commences”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
SUSAN NEESE, M.D., ef al., §
Plaintiffs, :
2:21-CV-163-Z
XAVIER BECERRA, in his official
capacity as Secretary of the United §
States Department of Health and Human §
Services, ef al., §
Defendants.
OPINION AND ORDER
Before the Court is Plaintiffs’ Motion to Certify Class (“Motion”) (ECF No. 44), filed on
August 5, 2022. Having considered the motions, pleadings, and relevant law, the Court GRANTS
Plaintiffs’ Motion and CERTIFIES Plaintiffs’ proposed putative class.
BACKGROUND
Section 1557 of the Affordable Care Act provides “an individual shall not, on the ground[s]
prohibited under” any of four civil rights statutes, “be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under, any health program or activity, any part of
which is receiving Federal financial assistance, . . . or under any program or activity that is
administered by an Executive Agency or any entity established under this title (or amendments).”
42 U.S.C. § 18116(a) (citing 20 U.S.C. § 1681 ef seg., 29 U.S.C. § 794, 42 U.S.C. § 2000d ef seq.,
and 42 U.S.C. § 6101 et seq.). In 2020, the Supreme Court decided Bostock v. Clayton County,
140 S, Ct. 1731 (2020). Bostock involved sex-discrimination claims under Title VII of the Civil
Rights Act of 1964, which prohibits discrimination in employment “because of [an]
individual’s . .. sex.” 42 U.S.C. § 2000e-2. The Supreme Court held Title VII’s prohibition on

discrimination “because of” sex prohibits employers from firing or refusing to hire individuals “for
being homosexual or transgender.” Bostock, 140 S. Ct. at 1743.
On May 10, 2021, Defendant Becerra announced the Department of Health and Human
Services (“HHS”) will “interpret and enforce” Section 1557 to prohibit: (1) “discrimination on the
basis of sexual orientation”; and (2) “discrimination on the basis of gender identity.” See ECF
No. 1-1. Plaintiffs Susan Neese, M.D., and James Hurly, M.D., allege Defendant Becerra’s
announced interpretation of Section 1557 inflicts immediate, present-day injury on them. ECF
No. 11 at 8. This is because they “can only wonder whether they or their practices will lose federal
money if they ever refuse to provide gender-affirming care to a transgender patient.” Id.
Plaintiffs allege Defendant Becerra’s notification is “not in accordance with law” under Section
706(2)(A) of the Administrative Procedure Act because it wrongfully equates discrimination
account of sexual orientation and gender identity with “sex discrimination.” /d. at 10.
Plaintiffs also seek declaratory relief under 28 U.S.C. § 2201 and ask the Court to declare Section
1557 does not prohibit discrimination based on sexual orientation and gender identity. Jd.
Plaintiffs now move this Court to certify a class of all healthcare providers subject to Section 1557
of the Affordable Care Act under Federal Rule of Civil Procedure 23(b)(2).
REPRESENTATIVE PLAINTIFFS HAVE STANDING
Standing is a “prerequisite to the class certification inquiry.” Rivera v. Wyeth-Ayerst
Lab’ys, 283 F.3d 315, 319 (Sth Cir. 2002), When “it is the class representative who presents a
standing problem, then ‘hat standing issue must be addressed first, prior to deciding class
certification.” Flecha v. Medicredit, Inc., 946 F.3d 762, 769 (Sth Cir. 2020). “After all, if the class
representative lacks standing, then there is no Article III suit to begin with — class certification or
otherwise.” /d. To establish standing, “a plaintiff must show (i) that he suffered an injury in fact

that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the
defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC
v. Ramirez, 141 S. Ct. 2190, 2202 (2021).
The Court previously found named Plaintiffs have standing because they face a “credible
threat of enforcement” that creates an “injury in fact” that is “concrete and particularized” and
“actual or imminent.” ECF No. 30 at 9 (internal marks omitted), Defendants maintain Plaintiffs
lack standing to challenge HHS’s interpretation that Section 1557 prohibits discrimination on the
basis of sexual orientation. Defendants argue Plaintiffs are uninjured by the portion of the
notification that prohibits discrimination on account of “sexual orientation.” ECF No. 57 at 9.
Additionally, Defendants argue Plaintiffs lack standing: Plaintiffs face no credible threat of future
enforcement because HHS does not consider Plaintiffs’ anticipated actions to constitute
discrimination, Id.
These arguments fail. To begin, Plaintiffs’ injuries are “fairly traceable” to this action —

even if they are not injured by every single word in the notification. Plaintiffs thus have standing
to seek their remedy even if their injuries only arise from the gender-identity edict. ECF No. 61
at 6. Second, courts assess standing at the moment the lawsuit is filed and is unaffected by post-
filing development. See Carney v. Adams, 141 S. Ct. 493, 499 (2020); Friends of Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 191 (2000) (stating standing is assessed “at the
time the action commences”). Thus, the notice of proposed rulemaking concerns only whether
Plaintiffs’ claims have become moot. But as Plaintiffs explain, Defendants “are not making a
mootness argument, and they cannot show that the Notice of Proposed Rulemaking moots
[Plaintiffs’] claims when the rulemaking process is not complete and the contents of the proposed
rule could change between now and when the rule becomes final.” ECF No. 61 at 6 (citing Z/ Paso

Elec. Co. v. FERC, 667 F.2d 462, 467 (5th Cir. 1982)). Furthermore, a notice of proposed
rulemaking does not withdraw or nullify the earlier agency “action” that Plaintiffs challenge. Jd.
at 6-7 (citing Biden v. Texas, 143 S. Ct. 2528, 2544-45 (2022)). Third, the Court agrees with
Plaintiffs “that the Notice of Rulemaking does nothing to alleviate” their objections to the
Secretary notification of May 10, 2021. Jd. at 7. This is because “a provider can only guess as to
whether the powers that be at HHS will regard its refusal to provide puberty blockers to a minor
as ‘legitimate’ or ‘nondiscriminatory.’” /d. at 8. Accordingly, the named Plaintiffs have standing.
PLAINTIFFS’ PUTATIVE CLASS
“A class action lawsuit] is the most effective means private citizens have to enforce the
law.”! “The class action is ‘an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348
(2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). The party seeking class
certification bears the burden of proof to establish that the proposed class satisfies Federal Rule of
Civil Procedure 23. M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 837 (Sth Cir. 2012).
“The decision to certify is within the broad discretion of the court, but that discretion must be
exercised within the framework of Rule 23.” Castano v. Am. Tobacco Co., 84 F.3d 734, 740
(Sth Cir. 1996).
“To establish lane certification, parties must satisfy Rule 23(a)’s four threshold
requirements, as well as requirements of Rule 23(b)(1), (2), or (3).” Stukenberg, 675 F 3d at 837.
Rule 23(a) lists four class-certification requirements: (1) “the class [be] so numerous that joinder
of all members is impracticable”; (2) “there are questions of law or fact common to the class”;
(3) “the claims or defenses of the representative parties are typical of the claims or defenses of

| See BRIAN T, FITZPATRICK, THE CONSERVATIVE CASE FOR CLASS ACTIONS 2 (2019).

the class”; and (4) “the representative parties will fairly and adequately protect the interests of the
class.” FED. R. Civ. P. 23(a). “These four threshold conditions are ‘commonly known as
numerosity, commonality, typicality, and adequacy of representation.’” U.S. Navy SEALs 1-26 v.
Austin, No. 4:21-CV-01236-O, 2022 WL 1025144, at *2 (N.D. Tex. Mar. 28, 2022) (quoting
Flecha, 946 F.3d at 766). The Fifth Circuit has articulated an additional, “ascertainably”
requirement. See John y. Nat'l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (Sth Cir. 2007) (“The
existence of an ascertainable class of persons to be represented by the proposed class representative
is an implied prerequisite of Federal Rule of Civil Procedure 23.”); DeBremaecker v. Short, 433
F.2d 733, 734 (5th Cir. 1970) (per curiam) (“[T]o maintain a class action, the class sought to be
represented must be adequately defined and clearly ascertainable.”).
A party seeking class certification must also satisfy at least one ground listed in Rule 23(b).
A party meets Rule 23(b)(2)’s requirements when it satisfies Rule 23(a)’s four threshold
requirements and “the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” FED. R. Civ. P. 23(b)(2). This requirement is satisfied
“when a single injunction or declaratory judgment would provide relief to each member of the
class,” Wal-Mart, 564 U.S. at 360.
A. The Requirements of Rule 23(a) Are Met
1. Plaintiffs’ putative class satisfies Rule 23(a)(1)’s numerosity requirement.
Under Rule 23(a)(1), Plaintiffs must show “the class is so numerous that joinder of all
members is impracticable.” “[N]umerosity is generally satisfied if there are more than 40 class
members.” In re Nat’l Football League Concussion Injury Litig., 821 F.3d 410, 426 (3d Cir, 2016).
Northern District of Texas Local Rule 23.2(b)(1) allows Plaintiffs to “approximate number of class

members.” Plaintiffs estimate that the proposed class of healthcare providers subject to
Section 1557 “easily exceeds 1 million.” ECF No. 45 at 5. This is because Section 1557’s
anti-discrimination protections apply to any healthcare provider participating in a federally funded
healthcare program, such as Medicare, Medicaid, or CHIP. Jd. at 4.
Defendants assert Plaintiffs must provide evidence that other class members share their
contention of harm. ECF No. 57 at 17-18. This is incorrect — at least for the purposes of
numerosity analysis. True, Plaintiffs “must be prepared to prove that there are in fact sufficiently
numerous parties, common questions of law or fact, etc.” Wal-Mart, 564 U.S. at 350. But Plaintiffs
have met their burden, having proved the class consists of more than 40 members. See ECF No.
45-1 at 15, Indeed, numerosity is almost never litigated.? Defendants’ proposed rule would
especially defeat the purposes of Rule 23(b)(2), which was designed specifically for cases “seeking
broad declaratory or injunctive relief for a numerous and often unascertainable or amorphous class
of persons.” Barnes v. Am. Tobacco Co., 161 F.3d 127, 142 (3d Cir. 1998) (quoting HERBERT
NEWBERG & ALBA Conte, 1 NEWBERG ON CLASS ACTIONS § 4.11 (3d ed. 1992)). Accordingly,
Plaintiffs’ proposed class satisfies Rule 23(a)(1).
2. Plaintiffs’ putative class meets Rule 23(a)(2) and Rule 23(a)(3)’s commonality and
typicality requirements.
Commonality requires a plaintiff to show “there are questions of law or fact common to
the class.” Feb. R. Civ. P. 23(a)(2). This also requires Plaintiffs to demonstrate class members
“have suffered the same injury.” Wal-Mart, 564 U.S. at 350 (quoting Gen. Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 (1982)). “That common contention, moreover, must be of such a nature

2 In Wal-Mart, for example, the representatives proposed a class similar in size (1.5 million female employees),
because of Wal-Mart’s alleged discrimination against women in violation of Title VII of the Civil Rights Act of 1964.
564 U.S. at 343. The Court’s numerosity analysis was contained in one sentence in a footnote in Justice Ginsburg’s
dissent: “The numerosity requirement is clearly met and Wal-Mart does not contend otherwise.” /d. at 368 n.2.

that it is capable of classwide resolution — which means that determination of its truth or falsity
will resolve an issue that is central to the validity of each one of the claims in one stroke.” □□□
What matters is “the capacity of a class-wide proceeding to generate common answers apt to drive
the resolution of the litigation.” /d. (quoting Richard A. Nagareda, Class Certification in the Age
of Aggregate Proof, 84 N.Y.U.L. REV. 131, 132 (2009)).
Rule 23(a)’s commonality and typicality requirements “tend to merge.” /d. at 349 n.5.
“Both serve as guideposts for determining whether under the particular circumstances maintenance
of a class action is economical and whether the named plaintiff's claim and the class claims are so
interrelated that the interests of the class members will be fairly and adequately protected in their
absence.”? Jd. The presence of a single common question can suffice to satisfy Rule 23(a)(2).
See id. at 359.
Plaintiffs propose at least two questions of law common to all class members.
First, whether Defendant Becerra’s interpretation of Section 1557 is consistent with the statutory
definition of “sex” discrimination, as construed by the Supreme Court in Bostock, ECF No. 45
at 5. Second, to what extent does Section 1557’s prohibition on “sex” discrimination compel
healthcare providers to provide “gender-affirming care” to patients suffering from gender
dysphoria? Jd. Plaintiffs further aver each member suffers the same injury from the legal
uncertainty over their legal obligations under Section 1557. /d. Plaintiffs also argue their claims

3 In Falcon, the Supreme Court held commonality and typicality were not met because the fact that Falcon was
allegedly discriminated against for promotion was not proof of widespread discriminatory hiring practices. 457 U.S.
at 157-58. In other words, Falcon did not raise common questions of law or fact between Mexican-American
employees and applicants who were not hired and therefore could not represent those who had not been hired.
Similarly, in Wal-Mart, the Court held there was no “specific employment practice” that tied all 1.5 million claims
together. 564 U.S. at 357 (“Merely showing that Wal-Mart’s policy of [lower-level supervisor] discretion has produced
an overall sex-based disparity does not suffice.”).

are “more than typical” of the claims of the class: “they are precisely the same as those of all
members of the proposed class.” Jd. at 6.
Defendants argue Rule 23(a)(2) is not met because “many members of the proposed class
do not share Plaintiffs’ contention or claimed injury” or publicly oppose Plaintiffs’ efforts.
See ECF No. 57 at 9. This contention is better suited for Rule 23(a)(4)’s adequacy of representation
analysis. But in any case, this argument does not defeat commonality — and especially not in a
Rule 23(b)(2) action. See, e.g., J.D. v. Azar, 925 F.3d 1291, 1315-16 (D.C. Cir, 2019) (“When a
challenged policy is generally applicable to the class for purposes of Rule 23(b)(2), the history of
the Rule confirms the propriety of certifying the class even if some members may be uninterested
in pressing the claims.”); Jn re Whirlpool Corp. Front-Loading Washing Prods, Liability Litig.,
722 F.3d 838, 854-55 (6th Cir. 2013) (commonality not defeated simply because defendants
contended class included owners who were “pleased with the performance of their” machines and
thus dissimilar to consumers who complained of mold problem).
“(T]he Wal-Mart Court nowhere stated that at the class certification stage, every member
of the class must establish that he, she or it was in fact injured by the common policy.” Jn re
Nexium Antitrust Litig., 777 F.3d 9, 23 (1st Cir. 2015). In other words, Rule 23(b)(2) does not
require “a specific policy uniformly affecting — and injuring — each [plaintiff] ...so long as
declaratory or injunctive relief ‘settling the legality of the [defendant’s] behavior with respect to
the class as a whole is appropriate.’” Prantil vy. Arkema Inc., 986 F.3d 570, 581-82 (Sth Cir. 2021)
(quoting Stukenberg, 675 F.3d at 847-48) (alterations in original).
Here, “the class members assert an entitlement to relief that is entirely unaffected by
the... factual differences noted by the government.” J.D., 925 F.3d at 1321. “The common
questions therefore are ‘apt to drive the resolution of the litigation.”” Jd. (quoting Wal-Mart, 564

U.S. at 350). Because the putative class members’ claims can be determined “in one stroke,”
Rule 23(a)(2) is satisfied. Wal-Mart, 564 U.S. at 350.
As for typicality, Defendants argue Plaintiffs fail to satisfy this “requirement for the same
reason they fail the commonality requirement: the proposed class includes many providers who
oppose Plaintiffs’ legal contentions and who do not share Plaintiffs’ claimed injury.” ECF No, 57
at 14. The Court must also reject this argument for the purposes of Rule 23(a)(3). See J.D., 925
F.3d at 1314 (“The class members all assert a common entitlement to make that choice on their
own.,.. The class representatives are suited to press that interest on the class’s behalf, even if
various class members might make varying ultimate decisions about how to exercise their
choice.”); see also, e.g., James v. City of Dallas, 254 F.3d 551, 571 (Sth Cir. 2001) (“[T]he test for
typicality is not demanding. It focuses on the similarity between the named plaintiffs’ legal and
remedial theories and the theories of those whom they purport to represent.” (internal marks
omitted)); Barnes, 161 F.3d at 141 (“[F]actual differences will not render a claim atypical if the
claim arises from the same event or practice or course of conduct that gives rise to the claims of
the class members, and if it is based on the same legal theory.” (quoting 1 NEWBERG ON CLASS
ACTIONS § 3.15)); ef Vita Nuova, Inc. v. Azar, No. 4:19-CV-00532-0, 2020 WL 8271942, at *7
(N.D. Tex. Dec. 2, 2020) (“That some class members might make this employment choice
differently than Vita Nuova does not render Vita Nuova’s claims unrepresentative of the claims of
the class as a whole.”). Additionally, Defendants argue because Plaintiffs “do not discriminate or
wish to discriminate on the basis of sexual orientation,” their claims “are atypical of claims of any
proposed class members who wish to discriminate on the basis of sexual orientation.” ECF No. 57
at 14. For the same reason, this argument fares no better. Therefore, Plaintiffs’ putative class
satisfies the commonality and typicality requirements of Rule 23(a)(2) and (a)(3).

3. Plaintiffs’ putative class meets Rule 23(a)(4)’s adequacy of representation
requirement.
Under Rule 23(a)(4), the representative party in a class action must “fairly and adequately
protect the interests of the class.” Rule 23(a)(4)’s adequacy requirement “serves to uncover
conflicts of interest between named parties and the class they seek to represent.” Amechem
Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). Adequacy encompasses three separate but
related inquiries: (1) “the zeal and competence of the representative[s’] counsel”; (2) “the
willingness and ability of the representative[s] to take an active role in and control the litigation
and to protect the interests of absentees”; and (3) the risk of “conflicts of interest between the
named plaintiffs and the class they seek to represent.” Slade v. Progressive Sec. Ins. Co., 856 F.3d
408, 412 (5th Cir. 2017) (quoting Feder v. Elec. Data Sys. Corp., 429 F.3d 125, 130 (Sth Cir.
2005)) (alterations in original).
Rule 23(a)(3) “preclude[s] class certification where the economic interests and objectives
of the named representatives differ significantly from the economic interests and objectives of
unnamed class members.”* Valley Drug Co. v. Geneva Pharm., Inc., 350 F 3d 1181, 1190 (11th
Cir. 2003). “Significantly, the existence of minor conflicts alone will not defeat a party’s claim to
class certification: the conflict must be a ‘fundamental’ one going to the specific issues in
controversy.” Jd, at 1189 (quoting CHARLES A. WRIGHT, ARTHUR R, MILLER & MARY KAY KANE,
FEDERAL PRACTICE & PROCEDURE § 1768 (2d ed. 1986)); see also Slade, 856 F.3d at 412
(“Of course, not all purported conflicts between a class representative and members of the class
will defeat adequacy.”). “A fundamental conflict exists where some party members claim to have

4 See, e.g., Amchem Prods., 521 U.S. at 626 (finding conflict when class members who were currently injured by
asbestos exposure sought “generous immediate payments,” whereas exposure-only class members sought to ensure
“an ample, inflation-protected fund for the future”).

been harmed by the same conduct that benefitted other members of the class.”° Jd. The adequacy
of representation requirement “tend[s] to merge” with the commonality and typicality criteria of
Rule 23(a). Amchem Prods., 521 U.S. at 626 n.20 (quoting Falcon, 457 U.S. at 157 n.13) (alteration
in original),
Plaintiffs assert they will fairly and adequately represent the interests of fellow class
members. ECF No. 45 at 6. Plaintiffs argue there are no conflicts of interest because the requested
relief will preserve the rights of those health providers to continue following Defendant Becerra’s
interpretations of Section 1557 should they choose to do so. /d. at 7. Defendants do not dispute
Plaintiffs will adequately prosecute the action. However, Defendants insist “conflicts
exist... because much of the class is opposed to the relief sought by Plaintiffs.” ECF No. 57 at 15.
Defendants also argue the relief Plaintiffs seek would harm class members because two healthcare
facilities that serve the LGBT community stated “growing numbers of LGBTQ patients are likely
to turn to their organizations for health-care services” and “many health care providers subject to
Section 1557 are themselves lesbian, gay, bisexual, or transgender.” Jd. at 16-17 (internal marks
omitted).

5 See Valley Drug Co., 350 F.3d at 1190 (finding conflict when three national wholesalers whose transactions
constituted over 50 percent of plaintiffs’ total claims experienced net gain from the absence of generic drugs in
terazosin hydrochloride market); Bieneman v. City of Chicago, 864 F.2d 463, 465 (7th Cir. 1988) (finding conflict
among class members in airport-noise case because increased operations at airport “make the area attractive for
business and may increase the value of land, even as they make land less attractive for residential purposes.”); /n re
Seagate Tech. II Sec. Litig., 843 F. Supp. 1341, 1365 (N.D. Cal. Feb. 11, 1994) (“[I]n order to obtain class certification,
the plaintiffs in a partial disclosure case must demonstrate that the putative class is not filled with in/out traders so as
to render the resulting conflicting interests problematic.”); /n re Sumitomo Copper Litig., 182 F.R.D, 85, 95 (S.D.N.Y.,
Sept. 18, 1998) (“As to the existence of alleged conflicts because Class members have differing interests in
establishing the dates and amounts of [copper price] manipulation, they do not give rise to a material conflict defeating
adequacy under Rule 23(a)(4)”).

Defendants do not identify any fundamental conflicts. As the D.C. Circuit explained
J.D.:
There might often be a possibility that some absent class members possess
conscientious beliefs running counter to an interest in redressing an alleged
infringement of their rights. Indeed, ‘[i]n any conceivable case, some of the
members of the class will wish to assert their rights while others will not wish to
do so.’ Charles Alan Wright, Class Actions, 47 F.R.D. 169, 174 (1969).
That is especially so in the civil rights cases that make up the heartland of actions
under Rule 23(b)(2), which by nature can involve polarizing issues. In such
situations, courts have been ‘reluctant to find the class representatives inadequate’
even if ‘some class members have an explicit desire to maintain the status quo.’
2 Rubenstein, Newberg on Class Actions § 3:64; cf Charise Cheney, Blacks on
Brown: Intra-Community Debates over School Desegregation in Topeka, Kansas,
1941-1955, 42 W. Hist. Q. 481 (2001) (describing opposition to school
desegregation among black Topekans in the lead-up to Brown v. Board of
Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954)). As courts have long
recognized, ‘“[iJt is not ‘fatal if some members of the class might prefer not to have
violations of their rights remedied.” Lanner y. Wimmer, 662 F.2d 1349, 1357 (10th
Cir. 1981) (quoting U.S. Fid. & Guar. Co. v. Lord, 585 F.2d 860, 873 (8th Cir.
1978)).
925 F.3d at 1317 (alterations in original).
The Court agrees with this reasoning: that some putative class members may disagree with
Plaintiffs’ aims or beliefs does not defeat the adequacy-of-representation requirement.
Furthermore, the Court finds Defendants’ theories of harm speculative at best. As Plaintiff notes,
Bostock’s anti-discrimination protections will remain in place even if Defendant Becerra’s
notification is held unlawful and set aside. ECF No. 61 at 11. And it is “far from clear
that a health-care provider will be ‘harmed’ by an increased demand for its services.” Jd.
Accordingly, the requirements of Rule 23(a)(4) are met.
4. Plaintiffs’ putative class contains no ascertainability problems.
Ascertainability is a non-textual rule imposed by courts on top of the class-certification
criteria detailed in Rule 23. See DeBremaecker, 433 F.2d at 734 (“[T]o maintain a class action, the
class sought to be represented must be adequately defined and clearly ascertainable.”). This

doctrine allows courts to deny certification to vague or poorly defined classes. See John, 501 F.3d
at 445 n.3 (“There can be no class action if the proposed class is ‘amorphous’ or ‘imprecise.””).
Ascertainability also requires class definitions to be based on objective criteria, See Marcus v.
BMW of N. Am., 687 F.3d 583, 593 (Sth Cir. 2012).
At least three circuits — however — hold the ascertainability doctrine is categorically
inapplicable to Rule 23(b)(2) classes. See Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir.
2016); Shelton v. Bledsoe, 775 F.3d 554, 563 (3rd Cir. 2015); Shook v. El Paso County, 386 F.3d
963, 972 (10th Cir. 2004); ef Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972), abrogated on
other grounds, Gardner v. Westinghouse Broad. Co., 437 U.S. 478 (1978). The Fifth Circuit has
acknowledged other courts have held that, absent notice and opt-out rights, “a precise class
definition is not as critical where certification of a class for injunctive or declaratory relief is sought
under rule 23(b)(2).” Jn re Monumental Life Ins. Co., 365 F.3d 408, 413 (Sth Cir. 2004).
Although the Fifth Circuit has indicated a putative class “must be adequately defined and clearly
ascertainable,” it has not explicitly addressed the argument that definiteness should not apply when
notice and opt-out rights are not at issue. DeBremaecker, 433 F.2d at 734; see also In re
Monumental Life Ins., 365 F.3d at 413 (“Where notice and opt-out rights are requested, however,
a precise class definition becomes just as important as in the rule 23(b)(3) context.”).
There is therefore no Fifth Circuit precedent taking direct issue with the Third, Sixth, and
Tenth Circuits’ analysis.
The Court ascertains that these circuits are correct. Fundamentally, ascertainability
addresses the same issues as a Rule 23(b)(3) predominance inquiry — i.e., if it is difficult for the
Court to ascertain who class members are, then individualized issues will predominate over
common questions. But this is not a concern in Rule 23(b)(2) classes because (b)(2) class members

are not seeking individualized relief and are not entitled to notice and because (b)(2) has no
predominance requirement. See Feb. R. Civ. P. 23(c)(2). Accordingly, this putative class lacks
ascertainability problems, But even if the doctrine applies to Rule 23(b)(2) actions, the Court
agrees with Plaintiffs: “There is nothing vague or imprecise about the proposed class definitions.
A health-care provider is either subject to section 1557 or it isn’t.” ECF No. 61 at 12.
B. Plaintiffs’ Putative Class Satisfies Rule 23(b)(2)
Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.” Wal-Mart, 564
U.S. at 360. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory
remedy warranted — the notion that the conduct is such that it can be enjoined or declared unlawful
only as to all of the class members or as to none of them.” /d. (quoting Nagareda, 84 N.Y.U. L.
REV. at 132). “In other words, Rule 23(b)(2) applies only when a single injunction or declaratory
judgment would provide relief to each member of the class.” Jd. The Rule provides no opportunity
for “(b)(2) class members to opt out, and does not even oblige the District Court to afford them
notice of the action.” Jd. at 362. The Fifth Circuit has interpreted Rule 23(b)(2) to require two
relevant requirements: (1) the “class members must have been harmed in essentially the same
way”; and (2) “the injunctive relief sought must be specific.” Sruckenberg, 675 F.3d at 845
(internal marks omitted).
Plaintiffs do not seek individualized relief for any class member or any subset of the class.
See ECF No. 45 at 10-11 (seeking APA and declaratory-judgment remedies). And Defendants

are “act[ing]...on grounds that apply generally to the class” because Section 1557 and
Defendant Becerra’s notification apply to each of the class members. Jd. at 8 (quoting FED. R. Cv.

P, 23(b)(2)). Defendants again repeat their argument that class certification is inappropriate
because some proposed class members disagree with Plaintiffs. See ECF No. 57 at 19-20. But as
explained, this argument fails. Accordingly, the putative class satisfies Rule 23(b)(2).
C, Plaintiffs’? Putative Class Satisfies Article III
A class may ultimately contain no injured class members because the class claims fail on
the merits. But is it acceptable that some of the class members may have meritorious claims, while
others do not? Here, Defendants repeat their argument that some members of the class support the
notification. ECF No. 57 at 20-21, Only this time, Defendants argue certification would violate
Article III instead of Rule 23. /d.
Neither the Supreme Court nor the Fifth Circuit has resolved whether the Constitution
requires every absent class member to possess Article III standing. See TransUnion, 141 S, Ct.
at 2208 n.4; Flecha, 946 F.3d at 768. Some courts have held only the named plaintiff needs to
establish standing to seek relief on behalf of the class. See Nexium, 777 F.3d at 31-32 (1st Cir,
2015) (collecting cases). Other courts have held Rule 23(b)(3)’s predominance requirement
demands a class cannot contain any uninjured class members. See In re Rail Freight Fuel
Surcharge Antitrust Litig., 725 F.3d 244, 252 (D.C. Cir. 2013) (“Meeting the predominance
requirement demands more than common evidence the defendants colluded to raise fuel surcharge
rates, The plaintiffs must also show that they can prove, through common evidence, that all class
members were in fact injured.”); Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006);
Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 302 (Sth Cir. 2003) (“[W]here fact of damage cannot
be established for every class member through proof common to the class, the need to establish
antitrust liability for individual class members defeats Rule 23(b)(3) predominance.”).

In the aforementioned cases, courts used different terminology to address what is
essentially a “predominance” issue. The correct answer has little to do with how many uninjured
class members there are; it has everything to do with how hard it is to identify them. In other
words, if a court needs myriad mini-trials to identify and separate uninjured class members, then
Rule 23(b)(3)’s requirement that “questions of law or fact common to class members predominate
over any questions affecting only individual class members” is not met. But Rule 23(b)(2) contains
no predominance requirement. And Rule 23(b)(2) “does not authorize class certification when each
individual class member would be entitled to a different injunction or declaratory judgment against
the defendant . . . . [or] an individualized award of monetary damages.” Wal-Mart, 564 U.S. at 360
(emphasis removed), The Court is thus sympathetic to Chief Justice Roberts’ concurrence in Tyson
Foods v. Bouaphakeo: “Article II does not give federal courts the power to order relief to any
uninjured plaintiff, class action or not.” 577 U.S. 442, 467 (2016) (Roberts, C.J., concurring).
But Chief Justice Roberts’ concern in Tyson Foods — a Rule 23(b)(3) case — was there may not
have been any way to ensure that the jury’s damages award went only to injured class members. /d.
Similar concerns do not exist here, where Plaintiffs seek only non-monetary relief.
The same reasons which support certification under Rule 23(b)(2) also support certification
here — namely, (b)(2) actions by their nature often involve polarizing questions affecting civil
rights, If (b)(2) class representatives were required to prove every absent class member included
in the putative class definition shared their contentions, then it is difficult to see how any (b)(2)
action could qualify. Furthermore, the alternative would essentially require class representatives
to propose a “fail-safe” class: “one that is defined so that whether a person qualifies as a member
depends on whether the person has a valid claim.” Messner v. Northshore Univ. Health Sys., 669
F.3d 802, 825 (7th Cir. 2012). “Such a class definition is improper because a class member either

wins or, by virtue of losing, is defined out of the class and is therefore not bound by the judgment.”
Id. (collecting cases).
Requiring the claims of the class representatives to be identical to those of each class □
member to establish standing would also “confuse[ | the requirements of Article III and Rule 23.”
In re Asacol Antitrust Litig., 907 F.3d 42, 49 (1st Cir. 2018) (quoting Fallick v. Nationwide Mut.
Ins. Co., 162 F.3d 410, 421 (6th Cir. 1998)). “Indeed, such an approach would render superfluous
the Rule 23 commonality . . . requirement|] because any case that survived such a strict Article II]
analysis would by definition present only common issues.” /d. In any event — and even if
Defendants’ proposed rule were adopted — each class member suffers the same injury from the
legal uncertainty created by Defendant Becerra’s notification of May 10, 2021. This is true
regardless of whether some class members disagree with Plaintiffs, Therefore, the Court finds
Plaintiffs’ proposed putative class satisfies Article III and Rule 23.
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion and CERTIFIES the
class under Rule 23(b)(2).
SO ORDERED.
October /Y 2022 wal
MATTHEW J. KACSMARYK
TED STATES DISTRICT JUDGE

ion

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10452172. Public record. Not legal advice.