Neal Ex Rel. Kanter v. Casey

Opinions of the United

1994 Decisions States Court of Appeals

for the Third Circuit

12-15-1994

Baby Neal v. Casey

Precedential or Non-Precedential:

Docket 94-1381

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 94-1381

________________

BABY NEAL, for and by his next friend, NANCY KANTER;

KAREEM AND KENT H, for and by their next friend,

JOHN PEIRCE; WILLIAM AND JOSEPH H, for and by

their next friend, FATHER, ROBERTO MALDONADO;

MARCELLA B, for and by her next friend, FRANK

CERVONE; SHERRY G, for and by her next friend,

JOAN ATLAS; JOHN, JEAN, JACOB, AND JEFFREY W,

for and by their next friend, WILLIAM SWEENEY;

ALICIA P, for and by her next friend, SARA

NERKEN; MANUEL I, for and by his next friend,

FRANK CERVONE; TAMARA AND CARL I, for and by

their next friend, FRANK CERVONE; JANE L, for

and by her next friend, ANNA SCHMIDT

JAMIE B; IVY V; AMELIA V; TARA M; EVAN M; ELLIE C;

JOHN B; CHUCK L; LARRY P; SHERIS C; KYLE S;

TODD MCL; JAY I; MAX C;

Plaintiffs-Intervenors

v.

ROBERT P. CASEY, in his official capacity as

Governor of COMMONWEALTH OF PENNSYLVANIA; KAREN

F. SNIDER,* in her official capacity as Secretary

of the Department of Public Welfare for the

Commonwealth of Pennsylvania; W. WILSON GOODE,

in his official capacity as Mayor of the City of

Philadelphia; JOAN M. REEVES, in her official

capacity as Commissioner of the Department of Human

Services of the City of Philadelphia; MAXINE TUCKER,

in her official capacity as Interim Deputy

Commissioner of the Children and Youth Division of the

Philadelphia Department of Human Services; EDWARD

J. BLAKE, in his official capacity as President Judge

of the Philadelphia Court of Common Pleas

*[substituted pursuant to FRAP 43(c)]

Baby Neal, by and through his next friend, Nancy

Kanter; Marcella B, by and through her next

friend, Frank Cervone; Sherry G, by and through

her next friend, Joan Atlas; John, Jean, Jacob,

and Jeffrey W, by and through their next friend,

William Sweeney; Alicia P, by and through her next

friend, Sara Nerken; Tamara, Carl, and Manuel I,

by and through their next friend, Frank Cervone;

Jane L, by and through her next friend, Anna

Schmidt; Jamie B, by and through his next friend,

Claire Rosenstein; Ivy, Amelia, and Jay V, by and

through their next friend, Susan Bergin; Tara M,

by and through her next friend, Nancy Kanter; Evan

M and Ellie C, by and through their next friend,

Najma Davis; John B, by and through his next

friend, Anita Wirzberger; Chuck L, by and through

his next friend, Sara Nerken; Max C, by and

through his next friend, Nancy Kanter; Larry P, by

and through his next friend, Nancy Kanter; Sheris

C, by and through his next friend, William W.

Norvell, III; Kyle S, by and through his next

friend, Sara Nerken; and Todd McL, by and through

his next friend, Nancy Kanter,

Appellants

___________________________________________________

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. No. 90-cv-02343)

___________________________________________________

Argued: September 22, 1994

Before: BECKER, COWEN, and GARTH, Circuit Judges.

(Filed December 15, l994)

ROBIN L. DALHBERG, Esquire

(ARGUED)

MARCIA ROBINSON LOWRY, Esquire

American Civil Liberties Union

Children's Rights Project

132 West 43rd Street

New York, New York 10036

LAWRENCE J. FOX, Esquire

MARY E. KOHART, Esquire

E. GRAHAM ROBB, Esquire

PAUL H. SAINT-ANTOINE, Esquire

Drinker Biddle & Reath

Philadelphia National Bank Bldg.

1345 Chestnut Street

Philadelphia, PA 19107-3496

STEFAN PRESSER, Esquire

American Civil Liberties Union

of Pennsylvania

125 South Ninth Street, Suite 701

Philadelphia, PA 19107

Attorneys for Appellants

DANA B. KLINGES, Esquire (ARGUED)

JEROME J. SHESTACK, Esquire

MICHELE K. CABOT, Esquire

Wolf, Block, Schorr & Solis-Cohen

S.E. Corner 15th & Chestnut Sts.

Packard Building, 12th Floor

Philadelphia, PA 19102

JOHN A. KANE, Esquire

Chief Counsel

DORIS M. LEISCH, Esquire

Assistant Counsel

Department of Public Welfare

309 Health & Welfare Building

Harrisburg, PA 17120

Attorneys for Appellees

Robert P. Casey and Karen Snider

MICHAEL F. EICHERT, Esquire

Office of the City Solicitor

1600 Arch Street, 8th Floor

Philadelphia, PA 19102

Attorney for Appellees

W. Wilson Goode, Joan M. Reeves,

and Maxine Tucker

A. TAYLOR WILLIAMS, Esquire

Supreme Court of Pennsylvania

Administrative Office of

Pennsylvania Courts

1515 Market Street, Suite 1414

Philadelphia, PA 19102

Attorney for Appellee

Edward J. Blake

MARTHA MATTHEWS, Esquire

National Center for Youth Law

114 Sansome Street, Suite 900

San Francisco, CA 94104-3820

Attorney for Amicus Curiae

National Center for Youth Law

ROBERT G. SCHWARTZ, Esquire

JACQUELINE L. DUBY, Esquire

Juvenile Law Center

801 Arch Street, Suite 610

Philadelphia, PA 19107

Attorneys for Amici Curae

Juvenile Law Center

Philadelphia Citizens for

Children

and Youth

___________________________

OPINION OF THE COURT

____________________________

BECKER, Circuit Judge.

This appeal from orders of the district court for the

Eastern District of Pennsylvania requires that we decide whether

the court abused its discretion in denying class certification

pursuant to FED. R. CIV. P. 23(b)(2) to a putative class of

children in the legal care and custody of Philadelphia's

Department of Human Services ("DHS"), who sought declatory and

injunctive relief against the officials responsible for operation

of the child welfare system. Plaintiffs allege that systemic

deficiencies prevent DHS from providing a variety of child

welfare services legally mandated by the United States

Constitution and by federal and state law. The district court

held that the plaintiffs could not meet the commonality and

typicality requirements of Rule 23, essentially because each of

the plaintiffs' claims arose out of individual (and tragic)

circumstances and hence they could not claim a single common

injury and be appropriately entitled to class relief pursuant to

RULE 23(b)(2). We reverse.

I. FACTS AND PROCEDURAL HISTORY

This suit was brought on behalf of sixteen children who

had been placed in DHS's care by orders of the Family Court

Division of the Philadelphia County Court of Common Pleas ("the

Court"). Defendants are the Governor of Pennsylvania, the

Secretary of Pennsylvania's Department of Public Welfare ("DPW"),

the Mayor of Philadelphia, the Commissioner and Deputy

Commissioner of DHS, and the President Judge of the Court. The

city defendants are responsible for the operation and

administration of DHS. The Commonwealth defendants are

responsible for ensuring that DHS provides legally mandated child

welfare services to eligible children and families. The Judicial

defendant is responsible for the allocation of judicial resources

for the Family Court.

It is a matter of common knowledge (and it is not

disputed here) that in recent years the system run by DHS and

overseen by DPW has repeatedly failed to fulfill its mandates,

and unfortunately has often jeopardized the welfare of the

children in its care. Plagued by severe and widespread

deficiencies in staff and revenues, the system has often

demonstrated a lack of ability to provide abused and neglected

children with the necessary welfare services.

The DHS acknowledged many of these deficiencies in its

Three Year Plan 1991-1992 (A486-A492). The Commonwealth

defendants have also acknowledged these deficiencies: three

times since April 1992, DPW denied a full operating license to

the DHS. At those times, DPW announced that DHS had failed (1)

to satisfy legal mandates for child protective services

investigations; (2) to adhere to the caseload maximum of 30 cases

per caseworker; (3) to assign to a substantial number of foster

children a caseworker to monitor foster care placement and to

ensure that the children received necessary and appropriate

services; (4) to ensure that foster parents received the training

necessary to permit them to care for foster children; and (5) to

provide any child whose records were reviewed with an adequate

case plan. (A277-A332; A333-A338; A389-A445)

The original complaint, filed on April 4, 1990, sought

both declaratory and injunctive relief, and alleged that systemic

deficiencies prevent DHS from providing the following legally

mandated child welfare services: protective service

investigations as required by the United States Constitution, the

Child Abuse Prevention and Treatment Act,1 and state law2;

monitoring and supervision as required by the Constitution and

1 42 U.S.C. § 5106a(b) (West Supp. 1994).

2

23 Pa. CON. STAT. ANN. §§6301-84 (1991), 55 Pa. Code

§§3490.51-.73 (1994).

state law3; safe and secure foster care placements as required by

the Constitution, the Adoption Assistance Act,4 and state law5;

written case plans as required by the Constitution, the Adoption

Assistance Act,6 and state law7; necessary medical, psychiatric,

psychological, and educational services as required by the

Constitution, and state law8; the planning and steps required to

return children to their families or to find them alternative

permanent placements as required by the Constitution, the

Adoption Assistance Act,9 and state law10; and periodic judicial

reviews as required by the Constitution, the Adoption Assistance

Act,11 and state law12.

In factual terms, plaintiffs allege that the system has

the following deficiencies: an insufficient number of trained

caseworkers; an insufficient number of medical, psychiatric,

psychological, and educational service providers; an insufficient

3

55 Pa. Code § 3490.61 (1994).

4

42 U.S.C. §671(a)(10) (West Supp. 1994).

5

55 Pa. Code § 3130.67 (1994).

6

42 U.S.C. §§627(a)(2)(B), 675 (West 1991).

7

55 Pa. Code §§ 3130.61, 3130.63, 3130.66-67, 3130.73,

3490.59, 3810.35 (1994).

8

55 Pa. Code §§3130.12(c), 3130.34-35, 3130.73, 3490.60,

3700.51, 3810.51 (1994).

9

42 U.S.C. §627(a)(2)(C) (West 1991).

10

55 Pa. Code §§3130.36-37 (1994).

11

42 U.S.C. §§627(a)(2)(B), 675 (West 1991).

12

55 Pa. Code §§3130.71, 3130.72 (1994).

number of trained foster parents; an insufficient number of

placements for children who need environments that are more

structured than foster homes; an insufficient number of potential

adoptive parents; and a host of policies and procedures that are

inefficient and deficient as measured against the standards of

national organizations incorporated under federal law. The

complaint portrays the impact of these deficiencies through

accounts of the lives and conditions of the named plaintiffs.

The stories are quite pathetic.

Doctrinally, these allegations comprise four separate

claims for declaratory and injunctive relief. The first cause of

action involves the alleged violations of rights conferred by the

Adoption Assistance and Child Welfare Act of 1980, including the

right to reasonable efforts to keep the children in their home or

to enable them to return home; the right to timely written case

plans; the right to placement in foster homes that meet

nationally recommended standards; the right to appropriate

services; the right to placement in the least restrictive, most

family-like setting; the right to proper care while in custody;

the right to a plan and to services that will assure permanent

placement; the right to dispositional hearings within eighteen

months of entering custody and periodically thereafter; and the

right to receive services in a child welfare system with an

adequate information system.

The second cause of action lies in alleged violations

of the First, Ninth and Fourteenth Amendments to the United

States Constitution. Specifically, plaintiffs claim that these

amendments confer the right not to be deprived of a family

relationship; the right not to be harmed while in state custody;

the right to placement in the least restrictive, most appropriate

placement; the right to medical and psychiatric treatment; the

right to care consistent with competent professional judgment;

and the right not to be deprived of liberty or property interests

without due process of law.

The third cause of action alleges violations of rights

conferred on the plaintiffs by the Child Abuse Prevention and

Treatment Act, including the right to a prompt and appropriate

investigation of reports of abuse or neglect; the right to

protection from those who endanger their health and welfare; and

the right to procedures, personnel, programs, and facilities that

are necessary to deal effectively with child abuse and neglect.

As with the first cause of action, defendants argue that this Act

does not create any private rights of action.

The fourth cause of action provides an alternative

basis in state law for some of the claims alleged under the three

federal causes of action. These claims include the right to

protection from abuse; the right to preventive rehabilitative

services; the right to appropriate and timely case records and

plans; the right to have every effort made to enable the children

to remain in their homes or be returned to their homes; the right

to appropriate services to assure proper permanent placement; and

the right to adoption services.

Simultaneously with the filing of the complaint, the

plaintiffs sought certification of a class consisting of "all

children in Philadelphia who have been abused or neglected and

are or should be known to the Philadelphia Department of Human

Services." (Pls. Motion 4/4/90 ¶2). The Commonwealth defendants

moved to dismiss the complaint on the grounds that the plaintiffs

had no valid claim for relief under any of the relevant federal

laws. The district court denied the defendants' motion, but it

stayed the class certification motion during its consideration of

this motion to dismiss. In response to defendants' asserted

inability to complete the discovery necessary to oppose the

certification, the district court stayed resolution of the class

certification motion three additional times. (Order 11/19/90;

Order 1/30/91; Order 5/6/91). During this period, the plaintiffs

attempted to commence system-wide discovery. They now allege

that the defendants never produced "much of the requested

discovery."

The district court denied the class certification

motion in an order dated January 6, 1992, based on the finding

that the putative class had failed to satisfy the commonality and

typicality requirements of Rule 23(a) and had also failed to

satisfy Rule 23(b).13 The court based these determinations on

its view that each of the plaintiffs had his or her own

individual circumstances and needs, and that the class thus could

not complain about a single, common injury. The plaintiffs moved

13

The court also based its decision on the failure to

satisfy the adequate representation requirement, but it

subsequently approved the substitution of new next friends on

March 20, 1992, and the adequacy of representation issue is no

longer pressed.

for reconsideration or, in the alternative, for certification of

subclasses. While this motion was pending, fourteen children

intervened as plaintiffs, seeking relief for themselves and

proffering a demonstration that children in DHS's custody and

care continued to be harmed by DHS's failure to provide legally

mandated child welfare services. The court subsequently denied

the motion for reconsideration and for certification of

subclasses.

The defendants then moved for summary judgment,

repeating the argument made in the motion to dismiss that the

plaintiffs had no private rights of action under the federal laws

alleged, and arguing that the plaintiffs' claims had become moot.

On August 24, 1992, the plaintiffs again moved for certification

of subclasses. The district court stayed consideration of that

motion pending the resolution of the summary judgment motion. In

an order dated April 12, 1993, the court partially granted the

defendants' motion for summary judgment, rejecting the

plaintiffs' claims as to the existence of the private rights of

action under the Child Abuse Prevention and Treatment Act and the

Adoption Assistance and Child Welfare Act. The court denied the

defendants' motion insofar as it asserted the mootness of all but

twenty-three of the twenty-six plaintiffs' claims.

On May 10, 1993, the plaintiffs renewed their motion

for subclass certification. On October 13, 1993, in an order

denying certification the court held that the subclasses were not

properly defined. The plaintiffs then moved for reconsideration,

proposing new subclass definitions intended to address the

court's concerns. The court denied this motion without comment,

forbade plaintiffs from making any other class certification

motions, and scheduled the case for trial. (Order, 12/6/93).

By this time, nearly four years after the commencement

of the litigation, almost all of the individual service needs of

the plaintiff children had been met or otherwise resolved. The

parties then settled the plaintiffs' remaining claims based on

individual service needs and entered into a stipulation of entry

of judgment (Stip., 2/28/94), preserving the plaintiffs' right to

appeal the denial of class certification and the grant of partial

summary judgment as to the existence of private rights of action

under the federal statutes. This appeal followed.14

14

We raised sua sponte the question whether we had

appellate jurisdiction to consider the case since the named

plaintiffs' individual claims had been mooted after the denial of

class certification. Both parties submitted briefs in favor of

the exercise of appellate jurisdiction. We conclude, for the

reasons set out in this footnote, that we have jurisdiction to

consider the class certification issue, but not the summary

judgment issues.

Because the combination of the summary judgment order (to

which the class was not a party) and the stipulation left nothing

in the district court, the orders of the district court are now

final and thus subject to review. 28 U.S.C. § 1291.

Notwithstanding the fact that some of the named plaintiffs'

claims have become moot since the original denial of class

certification, this case does present live issues. United States

Parole Com. v. Geraghty, 445 U.S. 388, 100 S. Ct. 1202 (1980),

made clear that the expiration of the named plaintiff's claims

after the denial of class certification does not moot the action

brought on behalf of the class. See also Eisenberg v. Gagnon,

766 F.2d 770, 784 (3d Cir. 1985). Thus, the district court's

orders were final and the issues presented are not moot.

This court, however, only has jurisdiction to review the

certification decision, in contrast to the summary judgment order

issued on the existence of the private rights of action under the

Adoption Assistance and Child Welfare Act, the Child Abuse

Prevention and Treatment Act, state law, and the U.S.

II. THE LEGAL REQUISITES FOR CLASS CERTIFICATION

A. Introduction

To obtain class action certification, plaintiffs must

establish that all four requisites of Rule 23(a) and at least one

part of Rule 23(b) are met. Wetzel v. Liberty Mutual Ins. Co.,

508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011 (1975). Rule

23(a) provides that

[o]ne or more members of a class may sue or

be sued as representative parties on behalf

of all only if (1) the class is 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 the class, and (4) the

representative parties will fairly and

adequately protect the interests of the

class.

FED. R. CIV. P. 23(a).

The requirements of Rule 23(a) are meant to assure both

that class action treatment is necessary and efficient and that

it is fair to the absentees under the particular circumstances.

While numerosity addresses the first of these concerns, i.e.,

Constitution. In affirming the Court of Appeals on the

jurisdictional ground, the Geraghty Court emphasized,

It would be inappropriate for this Court to reach the merits

of this controversy in the present posture of the case.

. . . Furthermore, although the Court of Appeals

commented upon the merits for the sole purpose of

avoiding waste of judicial resources, it did not reach

a final conclusion on the validity of the guidelines.

445 U.S. at 408, 100 S. Ct. at 1215.

necessity, the last three requirements help determine whether the

class action can be maintained in a fair and efficient manner.

Class treatment makes no sense if there are no common issues; the

trial court would gain nothing but logistical headaches from the

combination of the cases for trial. Typicality asks whether the

named plaintiffs' claims are typical, in common-sense terms, of

the class, thus suggesting that the incentives of the plaintiffs

are aligned with those of the class. Adequacy of representation

assures that the named plaintiffs' claims are not antagonistic to

the class and that the attorneys for the class representatives

are experienced and qualified to prosecute the claims on behalf

of the entire class.

In addition to satisfying the requirements of Rule

23(a), a putative class must also comply with one of the parts of

subsection (b). In this case, plaintiffs seek certification

pursuant to Rule 23(b)(2) which requires that "the party opposing

the class has acted or refused to act on grounds generally

applicable to the class, thereby making appropriate final

injunctive relief or corresponding declaratory relief with

respect to the class as a whole." FED. R. CIV. P. 23(b).

For the reasons explained below, we conclude that the

plaintiffs satisfied all of the requirements of Rule 23, and that

the district court abused its discretion in denying class

certification on the grounds that plaintiffs failed to comply

with subsections (a)(2) (commonality), (a)(3) (typicality), and

(b)(2) (appropriateness of class relief) of Rule 23.15 There is,

as we have noted, no dispute over numerosity ((a)(1)) or adequacy

of representation ((a)(4)).

The concepts of commonality and typicality are broadly

defined and tend to merge. See 7A CHARLES A. WRIGHT, ET AL., FEDERAL

PRACTICE AND PROCEDURE § 1764, at 247 (1986). Both criteria seek to

assure that the action can be practically and efficiently

maintained and that the interests of the absentees will be fairly

and adequately represented. See General Tel. Co. of Southwest v.

Falcon, 457 U.S. 147, 157 n.13, 102 S. Ct. 2364, 2370 n.13

(1982). Despite their similarity, however, commonality and

typicality are distinct requirements under Rule 23. See Hassine

v. Jeffes, 846 F.2d 169, 176 n. 4 (3d Cir. 1988)

("'[C]ommonality' like 'numerosity' evaluates the sufficiency of

the class itself, and 'typicality' like 'adequacy of

representation' evaluates the sufficiency of the named plaintiff

. . ."); Weiss v. York Hosp., 745 F.2d 786, 810 (3d Cir. 1984),

cert. denied, 470 U.S. 1060 (1985).

We turn to a more particularized discussion of these

requisites. We underscore at the outset, however, that neither

of these requirements mandates that all putative class members

share identical claims, see Hassine, 846 F.2d at 176-77; Weiss,

745 F.2d at 809; WRIGHT, ET AL., § 1763, at 198, and that factual

15

Denial of class certification is reviewed for abuse of

discretion. Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912,

923 (3d Cir. 1992); Winston v. Children & Youth Services, 948

F.2d 1380, 1392 (3d Cir.), cert. denied 112 S. Ct. 2303 (1992).

Valenti v. Mitchell, 962 F.2d 288, 299 (3d Cir. 1992).

differences among the claims of the putative class members do not

defeat certification. See Eisenberg v. Gagnon, 766 F.2d 770 (3d

Cir. 1985) (certifying securities fraud class action despite

differences in injuries); Troutman v. Cohen, 661 F. Supp. 802,

811 (E.D. Pa. 1987) (certifying subclass of 1,973 nursing home

patients challenging reductions in their level of nursing care

designations over typicality and commonality objections "because

it is not the unique facts of the individual appeals which give

rise to this action but rather the decision making process").

B. Commonality

The commonality requirement will be satisfied if the

named plaintiffs share at least one question of fact or law with

the grievances of the prospective class. Weiss, 745 F.2d at 808-

09; In re "Agent Orange" Prod. Liab. Lit., 818 F.2d 145, 166-67

(2d Cir. 1987). Because the requirement may be satisfied by a

single common issue, it is easily met, as at least one treatise

has noted. See H. NEWBERG & A. CONTE, 1 NEWBERG ON CLASS ACTIONS § 3.10,

at 3-50 (1992). Furthermore, class members can assert such a

single common complaint even if they have not all suffered actual

injury; demonstrating that all class members are subject to the

same harm will suffice. Hassine, 846 F.2d at 177-78; cf. Riley

v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985) (finding

constitutional violation in prisoners' being subject to constant

threat of violence and sexual assault and rejecting contention

that plaintiff must actually be assaulted before obtaining

relief).

Challenges to a program's compliance with the mandates

of its enabling legislation, even where plaintiff-beneficiaries

are differently impacted by the violations, have satisfied the

commonality requirement. See 3B JAMES W. MOORE & JOHN E. KENNEDY,

MOORE'S FEDERAL PRACTICE ¶ 23.06-1, at 23-162 (1993) (citing cases).

Courts appear to consider "common" such challenges based on

alleged violations of statutory standards. See Liberty Alliance

of the Blind v. Califano, 568 F.2d 333 (3d Cir. 1977) (certifying

class of blind recipients challenging regulations for calculation

of Supplemental Security Income benefits); Appleyard v. Wallace,

754 F.2d 955 (11th Cir. 1985) (certifying class challenging

regulations pertaining to receipt of Medicaid benefits despite

factual differences among claims). Moreover, because they do not

also involve an individualized inquiry for the determination of

damage awards, injunctive actions "by their very nature often

present common questions satisfying Rule 23(a)(2)." 7A WRIGHT ET

AL., § 1763, at 201.

To the extent that the defendants assert that

commonality requirements cannot be met in this case because of

the individualized circumstances of the children, their argument

has been squarely rejected by the Supreme Court. In Califano v.

Yamasaki, 442 U.S. 682, 99 S.Ct. 2545 (1979), plaintiffs

challenged the adequacy of the procedures used to recoup

overpayments under the Social Security Act. Rejecting an

argument that the applicable statute only invited suits by

individuals, the court explained that "class relief is consistent

with the need for case-by-case adjudication," especially where

"[i]t is unlikely that differences in the factual background of

each claim will affect the outcome of the legal issue." Id. at

701, 99 S. Ct. at 2557. This is especially true where plaintiffs

request declaratory and injunctive relief against a defendant

engaging in a common course of conduct toward them, and there is

therefore no need for individualized determinations of the

propriety of injunctive relief. See 7A WRIGHT ET AL., § 1763 at

203. Indeed, (b)(2) classes have been certified in a legion of

civil rights cases where commonality findings were based

primarily on the fact that defendant's conduct is central to the

claims of all class members irrespective of their individual

circumstances and the disparate effects of the conduct. Id. at

219.

In Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988),

plaintiffs claimed that the conditions at the Graterford prison

violated their constitutional rights. Reversing the district

court's denial of certification on commonality grounds, this

court explained that Rule 23 did not require all plaintiffs

actually to suffer the same injury; rather, the fact that the

plaintiffs were subject to the injury, that they faced the

immediate threat of these injuries, sufficed for Rule 23. In

particular, the Hassine panel explained that the named plaintiffs

could attack the inadequate mental health care provided at the

prison despite the fact that none of them were in current need of

those services; it was enough that they challenged the

"inadequacy of the provision of any health care service, to which

they are entitled, and which they might at some time require."

Hassine, 846 F.2d at 178 n.5.

Even where individual facts and circumstances do become

important to the resolution, class treatment is not precluded.

Classes can be certified for certain particularized issues, and,

under well-established principles of modern case management,

actions are frequently bifurcated. In Eisenberg v. Gagnon, 766

F.2d 770 (3d Cir. 1985), we held that a securities fraud case

against three separate partnerships, and hence three different

general partners, met the commonality requirement. The

individual damage determinations could be made, we explained, at

a separate phase of the trial, but the class phase could resolve

the central issue of liability for the alleged misrepresentations

and omissions.

C. Typicality

The typicality inquiry is intended to assess whether

the action can be efficiently maintained as a class and whether

the named plaintiffs have incentives that align with those of

absent class members so as to assure that the absentees'

interests will be fairly represented. 3B MOORE & KENNEDY, ¶ 23.06-

02; 1 NEWBERG & CONTE, § 3.13. The typicality criterion is

intended to preclude certification of those cases where the legal

theories of the named plaintiffs potentially conflict with those

of the absentees by requiring that the common claims are

comparably central to the claims of the named plaintiffs as to

the claims of the absentees. See Weiss, 745 F.2d at 810.

"Typicality entails an inquiry whether 'the named

plaintiff's individual circumstances are markedly different or .

. . the legal theory upon which the claims are based differs from

that upon which the claims of other class members will perforce

be based.'" Hassine, 846 F.2d at 177 (quoting Eisenberg, 766

F.2d at 786); see also Hoxworth, 980 F.2d at 923; Appleyard, 754

F.2d at 958. Commentators have noted that cases challenging the

same unlawful conduct which affects both the named plaintiffs and

the putative class usually satisfy the typicality requirement

irrespective of the varying fact patterns underlying the

individual claims. See 1 NEWBERG & CONTE § 3.13. Actions

requesting declaratory and injunctive relief to remedy conduct

directed at the class clearly fit this mold.

"[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." Hoxworth, 980 F.2d at

923 (citing Grasty v. Amalgamated Clothing & Textile Workers

Union, 828 F.2d 123, 130 (3d Cir. 1987), cert. denied, 484 U.S.

1042, 108 S.Ct. 773 (1988), and 1 NEWBERG & CONTE § 3.15). In

Hoxworth, this court affirmed over typicality objections the

class certification of a (b)(3) class of securities investors who

had purchased or sold any of twenty-one securities during a

specified period. We explained that the claims stemmed solely

from the defendant's "course of conduct in failing to advise

purchasers of its excessive markup policy." Id.; see also

Appleyard, 754 F.2d 955 (reversing a denial of certification of a

class challenging Alabama Medicaid admissions procedures).

Indeed, even relatively pronounced factual differences

will generally not preclude a finding of typicality where there

is a strong similarity of legal theories. See De La Fuente v.

Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)

(affirming certification of a class challenging a farmworker

recruitment system even though some of the named plaintiffs had

not worked for the defendant company during the disputed years

and even though it was not clear that all plaintiffs had worked

in the specific employment situation as the named plaintiffs).

Where an action challenges a policy or practice, the

named plaintiffs suffering one specific injury from the practice

can represent a class suffering other injuries, so long as all

the injuries are shown to result from the practice. See General

Tel. Co. of Southwest v. Falcon, 457 U.S. at 157-59, 102 S. Ct.

at 2370-71. In Falcon, the Supreme Court reversed certification

of a class of Mexican Americans challenging hiring and promotion

actions, which had been affirmed by the Fifth Circuit, on

typicality grounds. Rather than standing for the proposition

that a named plaintiff complaining of one specific injury

(Falcon's not being promoted) cannot represent a class suffering

perhaps a different injury (not being hired), Falcon merely

requires that the class representative prove that there is a

pervasive violation and that the various injuries alleged all

stem from that common violation. Id. See also Wilder v.

Bernstein, 499 F. Supp. 980, 992-94 (S.D.N.Y. 1980) (holding that

a claim against the overall child care system states a claim

against the entire system and each of its components).

D. The Requisites of Rule 23(b)(2)

Besides meeting the requirements of Rule 23(a),

plaintiffs must also satisfy one of the requirements of 23(b).

The district court alternatively based its denial of

certification on its conclusion that the plaintiffs failed this

test. The plaintiffs maintain that their action satisfies Rule

23(b)(2), which is met if "the party opposing the class has acted

or refused to act on grounds generally applicable to the class,

thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the class as a

whole." FED. R. CIV. P. 23(b).

In Weiss v. York Hospital we explained that this

requirement is almost automatically satisfied in actions

primarily seeking injunctive relief. 745 F.2d at 811. "When a

suit seeks to define the relationship between the defendant(s)

and the world at large, ... (b)(2) certification is appropriate."

Id. Commentators have also noted that the language of (b)(2)

does not even require that the defendant's conduct be directed or

damaging to every member of the class. See 1 NEWBERG & CONTE §

4.11, at 4-37. It is the (b)(2) class which serves most

frequently as the vehicle for civil rights actions and other

institutional reform cases that receive class action treatment.

In fact, the injunctive class provision was "designed

specifically for civil rights cases seeking broad declaratory or

injunctive relief for a numerous and often unascertainable or

amorphous class of persons." Id. at 4-39.

What is important is that the relief sought by the

named plaintiffs should benefit the entire class. The general

applicability requirement of (b)(2) also aims to prevent

prejudice to absentees by mandating that the putative class

"demonstrate that the interests of the class members are so like

those of the individual representatives that injustice will not

result from their being bound by such judgment in the subsequent

application of principles of res judicata." Hassine, 846 F.2d at

179. But injunctive actions, seeking to define the relationship

between the defendant and the "world at large," will usually

satisfy this requirement.

E. Precedents in Child Welfare Cases

A review of the jurisprudence in this area discloses

that many very similar lawsuits challenging the provision of

services to foster children have been certified despite the

varieties of factual differences that characterize the plaintiffs

in each case and despite the variety of legal claims any one

class may make. Many of these cases also involve claims by

classes that include differently situated plaintiffs, who were

not, at the time of the litigation, suffering identical injuries

from the defendants' conduct.

For example, in a class action brought in Vermont state

court,16 the court certified a class of handicapped children

challenging the provision of child welfare services over

defendants' commonality and typicality objections based on

factual differences of class members. The court explained:

Certainly, the plaintiffs will have different stories

to tell. However, it is apparent from the pleadings

that plaintiffs legal claims are based on a common

factual predicate: the defendants alleged failure to

fulfill their duties in providing for a coordinated

system that protects the welfare of class members. The

individual treatment of handicapped youths, while

important and crucial to plaintiffs' case, only serves

to support a larger inquiry into the functioning of the

state structure appropriated for administering programs

that serve the handicapped.

Jane T. v. Morse, No. S-359-86 WnC, slip op. at 4, (Vt. St. Ct.,

June 12, 1987).

Courts have also certified class actions alleging a

variety of legal claims falling under the rubric of a systemic

failure to provide certain child welfare services. See e.g.,

LaShawn A. v. Dixon, 762 F. Supp. 959, 960 (D.D.C. 1991). In

that case the class challenged the alleged failure of the

District of Columbia Department of Human Services to initiate

timely investigations into reports of abuse or neglect, the

failure to provide services to families to prevent the placement

of children in foster care, the failure to place those who may

not safely remain at home in appropriate foster homes and

institutions, the failure to develop case plans for children in

16

Vermont's class certification statute, V.R.C.P. 23, is

almost identical to Federal Rule 23.

foster care, and the failure to make permanent placements. The

class included foster children under the care of the DHS and

children reported as abused or neglected though not yet in the

care of the DHS. The court certified the class.

Another federal court allowed a class of children in

the custody of a child welfare agency to challenge the agency's

failure to provide children with follow-up caseworkers to work

with the family, to arrange for appropriate services, and to

oversee the fulfillment of the children's medical and educational

needs. The action requested a declaratory judgment that the

policies violated the Fourteenth Amendment, an injunction

requiring the defendant to submit a plan assuring legally

adequate care and treatment, and the appointment of a master to

determine the adequacy of the plan and to oversee its

implementation. The court granted class certification. B.H. v.

Johnson, 715 F. Supp. 1387, 1389 (N.D. Ill. 1989).

There are many additional examples of certification of

class actions asserting a broad range of grievances closely

resembling those alleged in this case. See e.g., Smith v.

Organization of Foster Families, 431 U.S. 816, 822 n.7, 97 S. Ct.

2094, 2098 n.7 (1977) (perceiving no error in district court's

certification of foster parents, children, and intervening

natural parents); Lynch v. Dukakis, 719 F.2d 504, 506 n.1 (1st

Cir. 1983) (affirming district court's preliminary injunction, in

favor of a class of foster children and their natural and foster

families, ordering state social services department to comply

with case plans and to review obligations of foster care

maintenance program); Eric L. v. Bird, No. 91-376-D slip op.

(D.N.H. Dec. 16, 1993) (certifying class of all New Hampshire

children concerning whom the State Division of Children and Youth

Services (DCYS) had received a complaint of abuse or neglect, who

are the subject of a petition brought pursuant to state law or

are entitled to services from DCYS as a result of court

proceedings, and all children with disabilities who are placed

either in twenty-four hour residential facilities or in foster

care and whose families are in need of support services); David

C. v. Leavitt, No. 93-C-206W slip op. (D. Utah May 5, 1993)

(certifying over adequacy-of-representation objections a class of

all children who are or will be in Utah's DHS custody or will be

placed in a foster home, a group home, institutional care or a

shelter and children who are or will be known to DHS by virtue of

report of abuse or neglect).

Admittedly, these cases did not (with the exception of

Jane T.) discuss commonality and typicality; nevertheless, the

trial judges had to be satisfied that the requisites of Rule 23

(or its state law equivalent) were met in order to certify the

classes. We find it persuasive that these courts have found

quite similar actions to comply with Rule 23's requirements.

III. DID THE DISTRICT COURT ABUSE ITS DISCRETION

IN DENYING CLASS CERTIFICATION?

Appellants contend that the district court abused its

discretion when it denied certification. We agree. In our view,

the district court applied an overly restrictive legal standard

in evaluating the requirements of Rule 23 and in denying class

certification. Although the court took cognizance of cases

holding that common questions need only exist -- not predominate

-- for (b)(2) actions, it nevertheless proceeded to demand higher

demonstrations of commonality and typicality than the rule

requires. It is axiomatic that errant conclusions of law

constitute an abuse of discretion. See International Union,

United Auto, etc. v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir.

1987), cert. denied, 499 U.S. 921, 111 S. Ct. 1313 (1991).

A. Commonality

As to commonality, the district court concluded that:

"Not one of the common legal issues asserted by plaintiffs

applies to every member of the proposed class . . . . The

children's claims are based upon different legal theories

depending on the individual circumstances of that child . . . .

The services required to meet the needs of one child are vastly

different from that of another child." (Mem. Op. at 7).17 These

statements are at odds with the applicable standard. Plaintiffs

are challenging common conditions and practices under a unitary

regime. All the children in the class are subject to the risk

that they will suffer from the same deprivations resulting from

the DHS's alleged violations. Because the nature of foster

17

Unless otherwise specified, Mem. Op. citations refer to

the Memorandum and Opinion issued on January 6, 1992.

placement is transitory and thus inherently variable, it is

unreasonable to require that all plaintiffs suffer from the same

injury simultaneously.

Defendants maintain that "[p]roving systemwide failure

does not establish that the law has been violated as to any

child." (Br. of Appellees at 16). However, the commonality

standard requires only that a putative class share either the

injury or the immediate threat of being subject to the injury.

See supra at typescript 18. Here, systemwide deficiencies either

violate class members' rights currently or subject them to the

risk of such a violation.

Furthermore, all of the plaintiffs seek to force the

DHS to comply with its statutory mandates, and all of their

injuries alleged here would be cured if DHS remedied the systemic

deficiencies. Insofar as the children challenge the scheme for

the provision of child welfare services, their claims share a

common legal basis. Class certification for a similar attack on

New York's child welfare system was upheld in Wilder v.

Bernstein, 499 F. Supp. 980, 994 (S.D.N.Y. 1980) ("[In alleging

that defendants] created an overall child-care system which

discriminates on the basis of race and religion, plaintiffs have

stated a claim against the entire system and each of its

components."). Thus, we find the plaintiffs' attack on the

DHS's systemic deficiencies in providing legally mandated child

care services to be a sufficiently common legal basis to support

class certification here.

The differing degree and nature of the plaintiffs'

injuries also do not preclude a finding of commonality. Just as

in Califano, where the amounts of each class member's claim

differed but where the class members nonetheless shared a common

statutory claim, the putative class members in this case share

the common legal claim that DHS's systemic deficiencies result in

widespread violations of their statutory and constitutional

rights, irrespective of their varying individual needs and

complaints. As in Califano, where the plaintiffs challenged the

conduct of the defendant towards the class, the children here

challenge DHS's conduct, which is generally applicable to them.

Also, as in Califano, where it did not matter that the amounts of

the individuals' claims differed, it does not matter here that

the children suffer in varying ways from the DHS's violation of

its statutory mandates.

When it concluded that "not one factual issue pertains

to the entire proposed class," the district court committed the

error of overly fragmenting the plaintiffs' claims. A similar

approach taken in another case, Ward v. Luttrell, 292 F. Supp.

165 (E.D. La. 1968) (denying certification to a claim by female

workers challenging state labor laws that denied overtime pay),

has been characterized as "contrary to the clear language of the

rule" and "irreconcilable with the majority of decisions on the

common question issue." See 1 NEWBERG & CONTE §3.11, at 3-59. It

is true that each plaintiff here has his or her own

circumstances, but every plaintiff shares the essential

circumstance of being in the custody or the care of DHS.

Individual factual differences do not affect the central

allegation that the DHS violates various statutory and

constitutional rights in its provision of child care services to

the class.

Because of the district court's capacity to bifurcate

(or trifurcate) the proceedings, the individual circumstances of

the children, even if they affect the issues presented by this

case, would not preclude certification. And in this suit for

declaratory relief, the court can substantially avoid examining

those individualized circumstances, for the relief requested by

the plaintiffs focuses entirely on the effort to reform

defendants' conduct so that it complies with the various legal

provisions raised here. Thus, while the children will

undoubtedly be affected by the district court's rulings, the

court need not consider the individual children's peculiar

circumstances in fashioning its order.

The court's heavy emphasis on the factual differences

of the 6,000 children also suggests that it did not take

sufficient cognizance of the nature of the relief sought.

Because the complaint does not seek damages, the factual

differences are largely irrelevant. The complaint prays for

declaratory and injunctive relief. Factual differences among the

situations of the plaintiffs will thus not preclude the district

court from determining whether the class claims are meritorious,

or from ordering the appropriate relief in the event that they

are.

The district court's rendering of the commonality

requirement also goes astray in its analysis of Hassine v.

Jeffes, 846 F.2d 169 (3d Cir. 1988). Notwithstanding the clear

language of that decision, the district court here seems to have

relied on Hassine to suggest that all of the named plaintiffs

must suffer from the same harm. (Mem. Op. at 7). The plaintiffs

in Hassine, however, complained of over-crowding, though they

were not actually double bunked, and of deficient medical and

mental health services, though they did not at that time require

either of those services. It was enough for the Hassine court

that some plaintiffs might at some point require a variety of

those services and thus be subjected to the risk of deprivation

by the pervasively deficient system. 846 F.2d at 178 n.5.

Obviously, not all of the Hassine class members would need

medical services, or the same medical services. By the reasoning

of Hassine, then, the fact that some of the plaintiffs here do

not need some of the services that are allegedly deficient does

not, contrary to the district court's conclusion, preclude them

from attacking a system that fails to provide those services.

The cases cited by defendants, where certification was

denied on commonality grounds, are also easily distinguished. In

Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990), the court denied

certification of a class of government employees who had suffered

adverse employment consequences allegedly resulting from improper

partisan concerns. In that case, unlike this one, whether or not

the asserted violations existed depended on individual

determinations of the nature of the position of each plaintiff.

Here, the violations exist independently of individual children's

circumstances; it is established by reference to the objective

statutory and constitutional criteria.18

In Stewart v. Winter, 669 F.2d 328 (5th Cir. 1982),

prisoners challenging the conditions of prisons throughout the

state of Mississippi were denied certification on commonality

grounds. The Stewart court was daunted by the prospect of 82

separate hearings to evaluate under the appropriate totality-of-

the circumstances test whether each of the counties' jails

violated the plaintiffs' Eighth Amendment rights. The situation

here is quite different. The plaintiffs challenge unitary

systems and a much more localized service, i.e., the provision of

child welfare services in Philadelphia. Furthermore, the

question of liability in this case can be evaluated relative to

the applicable (and generalized) statutory standards, unlike in

Stewart where the Eighth Amendment claims would necessitate

individualized hearings. At all events, we are dubious as to the

correctness of Stewart, and note that in Pennsylvania a similar

statewide class action has been certified and is ongoing (at the

trial stage). See Austin v. Pennsylvania Dep't of Corrections,

No. 90 Civ. 7497 (E.D. Pa. certified March 5, 1992)

18

Defendants also cite In re Fibreboard Corp., 893 F.2d 706

(5th Cir. 1990), as an example of a case that failed to meet

commonality requirements. However, this case is clearly

distinguishable. Fibreboard was a mass tort action seeking

damages, and certification was denied on the basis that common

issues did not predominate, the (b)(3) inquiry, not that there

was no common issue, the proper (a)(2) inquiry.

In contrast to the cases we have distinguished, this

case clearly presents common legal issues under the applicable

standard. The children challenge DHS's pattern of conduct, which

is subjecting them all to violations of their statutory and

constitutional rights. Because of the dearth of trained

caseworkers, for example, DHS (allegedly) fails to investigate

reports of abuse and neglect promptly or adequately and fails to

reliably provide the children in its care with written case

plans, with appropriate placements, with proper care while in

custody, and with periodical dispositional hearings. Similar

violations of the rights of children in custody to be free from

harm can (allegedly) be traced to the scarcity of properly

trained foster parents or to DHS's lack of an adequate

information system.

Moreover, trial will not require an individualized

inquiry into a vast network of institutions. It is only the

Philadelphia DHS's provision of the mandated services that is at

issue, and the nature of the violations can be verified by

reference to the applicable statutes; it is not necessary to

examine each plaintiff's circumstances to evaluate the claims.

The fact that all plaintiffs are subject to the risk of

deprivation of services to which they are currently entitled (or

which they may at some point in the future require) suffices to

support their common claim against DHS.

B. Typicality

The district court also misconstrued the relevant

standard of typicality. As with its analysis of the commonality

issue, the court appeared to rely on the proposition that the

plaintiffs were not challenging precisely the same conditions and

practices because the services required by law differ depending

on a child's individual situation. However, General Tel. Co. of

the Southwest v. Falcon, supra, assures that a claim framed as a

violative practice can support a class action embracing a variety

of injuries so long as those injuries can all be linked to the

practice. Plaintiffs in this case attack a systemic failure by

DHS to provide a broad range of legally mandated services. At

any one time, the plaintiffs do not suffer from precisely the

same deficiency, but they are all alleged victims of the systemic

failures. Moreover, they each potentially face all of the

system's deficiencies. A child not currently needing

psychological services may well require such services sometime

while in DHS custody. A child lucky enough to be receiving

permanency planning, for example, faces the immediate threat of

losing that service in a system characterized by the widespread

absence of such services. Because being subject to the risk of

an injury suffices under Hassine for both the commonality and the

typicality inquiries, plaintiffs can allege these harms.

Furthermore, the fact that the common theme of

attacking DHS's systemwide failure to comply with its legal

mandates is equally central to the claims of the named plaintiffs

as it is to the claims of the absentees reinforces the

characterization of the plaintiffs' claims as typical. Indeed,

this theme is central to each plaintiff. It bears remembering

that the plaintiffs here seek only injunctive and declaratory

relief; there are no other claims that could compromise the named

plaintiffs' pursuit of the class claims.

Because there are no individual claims as such, the

differences among the plaintiffs do not affect the central claim

that DHS violates a variety of the children's (putative class

members') constitutional and statutory rights by failing to

provide mandated welfare services. We emphasize that the

individual differences in the children's circumstances might

indeed militate against certification if the action sought

certification under 23(b)(3) because a court would need to

evaluate those differences in the event that the plaintiffs

prevailed and were entitled to monetary damages. In fashioning

injunctive relief, however, a court would focus on the defendants

rather than on the plaintiffs. Whether there are fifty or 6,000

plaintiffs, as in this case, the court's task is essentially the

same. The court would not need to assure that every child

received an "appropriate" case plan, for instance. Instead, the

court would assure that the DHS had an adequate mechanism for

generating and monitoring appropriate case plans. To the extent

that some of the claims raised by the plaintiffs truly do require

the court to engage in individualized determinations, the court

retains the discretion to decertify or modify the class so that

the class action encompasses only the issues that are truly

common to the class. See Fed. R. Civ. P. 23(c)(4).

Moreover, the prospect of class certification in this

case does not present the sorts of dangers that the typicality

requirement was intended to avoid. There is no danger here that

the named plaintiffs have unique interests that might motivate

them to litigate against or settle with the defendants in a way

that prejudices the absentees. Many courts have noted that the

"individual interest in pursuing litigation where the relief

sought is primarily injunctive will be minimal." Weiss, 745 F.2d

at 808 (citing 7 CHARLES WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &

PROCEDURE § 1771 (1972)). Indeed, because this suit seeks only

declaratory and injunctive relief, the named plaintiffs are

simply not asserting any claims that are not also applicable to

the absentees. The common claims here are the only claims and

must perforce occupy the same position of centrality for all

class members. The putative class clearly satisfies the

typicality requirement of Rule 23(a)(3); the district court

abused its discretion in ruling that it did not.

C. The 23(b)(2) Showing

The district court also found that the plaintiffs

failed to make the requisite showing under Rule 23(b)(2),

concluding that the claims for relief were not generally

applicable to the class. (Mem. Op. at 21). In so holding, the

court failed to give effect to the proper role of (b)(2) class

actions in remedying systemic violations of basic rights of large

and often amorphous classes. While it is true that not all of

the orders issued will immediately benefit every plaintiff, every

plaintiff will benefit from relief designed to assure DHS

compliance with the applicable standards.

Plaintiffs have alleged that systemic failure causes

the DHS to violate various mandates under federal statutory and

constitutional provisions. Because the children in the system

are comparably subject to the injuries caused by this systemic

failure, even if the extent of their individual injuries may be

affected by their own individual circumstances, the challenge to

the system constitutes a legal claim applicable to the class as a

whole. An order forcing the DHS to comply with their statutory

and constitutional mandates would constitute relief generally

applicable to the entire putative class. Indeed, the violations

alleged here are precisely the kinds targeted by Rule 23(b)(2).

The writers of Rule 23 intended that subsection (b)(2) foster

institutional reform by facilitating suits that challenge

widespread rights violations of people who are individually

unable to vindicate their own rights. See Rules Advisory

Committee Notes to 1966 Amendments to Rule 23, 39 F.R.D. 102

(1966); 1 Newberg & Conte, § 4.11 at 4-39.

The fact that the plaintiffs in this case seek only

injunctive and declaratory relief, not individual damages,

further enhances the appropriateness of the class treatment.

Clearly, this action aims to define the relationship of the

defendants to the universe of children with whose care the

defendants are charged. Plaintiffs simply ask the district court

to declare the DHS's current provision of child welfare services

to the plaintiffs to be violative of the cited statutory and

constitutional provisions and to order DHS to implement a system

that would enable it to comply with its legal mandates in the

provision of these services. Furthermore, all of the class

members will benefit from relief which forces the defendant to

provide, in the manner required by law, the services to which

class members either are currently or at some future point will

become entitled.

While it is true that commonality, typicality, and the

Rule 23(b)(2) general applicability requirements all manifest a

concern about judicial efficiency and manageability, the district

court's arguments on this score miss the mark. The district

court clearly erred by finding that "[i]t would be impossible to

conceive of an Order this court could make granting class-wide

injunctive relief which could address the specific case-by-case

deficiencies in DHS's performance . . . ." (Mem. Op. 10/13/93 at

4-5). But a court could, for example, order the DHS to develop

training protocols for its prospective foster parents. Such an

order would not, contrary to the district court's view, "create

an enforcement problem of staggering proportions." Id. The

district court will thus not need to make individual, case-by-

case determinations in order to assess liability or order relief.

Rather, the court can fashion precise orders to address specific,

system-wide deficiencies and then monitor compliance relative to

those orders. Other courts have ordered the relief

required by these types of cases without finding it to be either

unworkable or unenforceable. For example, in L.J. v. Massinga,

699 F.Supp. 508, 510 (D. Md. 1988), the court approved a consent

decree essentially embodying the terms of the preliminary

injunction it had previously issued and implemented. The decree

required the defendant to review the status of each foster home

where there had been a report of maltreatment; visit each child

in a foster home on a monthly basis; visit each child who had

been the subject of a report of maltreatment on a weekly basis;

assure sufficient staff and resources to ensure that appropriate

medical care was rendered; and provide a written copy of any

complaint of maltreatment of a foster child to the juvenile court

and the child's attorney. This is precisely the sort of order

that is requested in this case. Because this suit challenges

conduct generally applicable to the class and because the court

can enter appropriate declaratory and injunctive relief, this

action patently satisfies the (b)(2) standard.

IV. CONCLUSION

Because the claims alleged in the plaintiffs' complaint

clearly meet the requirements of Rule 23, the district court's

determination that they did not constitutes an abuse of

discretion. We will therefore reverse the orders of the district

court and remand for further proceedings consistent with this

opinion. In so doing, we intimate no view on the merits, nor,

should the plaintiffs succeed on merits, on the scope of the

court's remedial power or on the appropriate remedy.