B.K. v. Thomas Betlach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

B.K., by her next friend Margaret No. 17-17501

Tinsley; B.T., by their next friend

Jennifer Kupiszewski; A.C.-B., by D.C. No.

their next friend Susan Brandt; M.C.- 2:15-cv-00185-

B., by their next friend Susan Brandt; ROS

D.C.-B., by their next friend Susan

Brandt; J.M., by their next friend

Susan Brandt,

Plaintiffs-Appellees,

v.

JAMI SNYDER, in her official capacity

as Director of the Arizona Health

Care Cost Containment System,

Defendant-Appellant.

2 B.K. V. SNYDER

B.K., by her next friend Margaret No. 17-17502

Tinsley; B.T., by their next friend

Jennifer Kupiszewski; A.C.-B., by D.C. No.

their next friend Susan Brandt; M.C.- 2:15-cv-00185-

B., by their next friend Susan Brandt; ROS

D.C.-B., by their next friend Susan

Brandt; J.M., by their next friend

Susan Brandt, OPINION

Plaintiffs-Appellees,

v.

GREGORY MCKAY, in his official

capacity as Director of the Arizona

Department of Child Safety,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted January 17, 2019

San Francisco, California

Filed April 26, 2019

Before: J. Clifford Wallace and Michelle T. Friedland,

Circuit Judges, and Lynn S. Adelman, * District Judge.

Opinion by Judge Wallace;

Partial Concurrence and Partial Dissent by Judge Adelman

*

The Honorable Lynn S. Adelman, United States District Judge for

the Eastern District of Wisconsin, sitting by designation.

B.K. V. SNYDER 3

SUMMARY **

Civil Rights

The panel affirmed in part and vacated in part the district

court’s class certification order and remanded for further

proceedings in an action brought by children in the Arizona

foster care system against directors of the Arizona

Department of Child Safety and the Arizona Health Care

Cost Containment System alleging that Arizona’s state-wide

policies and practices deprived them of required medical and

other services, and that this subjected them to a substantial

risk of harm and violated the Medicaid Act.

Plaintiffs alleged that defendants’ state-wide policies

and practices violated their rights to due process under the

Fourteenth Amendment, family integrity under the First,

Ninth, and Fourteenth Amendments, and medical services

under the Medicaid Act. The district court certified a

General Class of all children who are or will be in the

Department of Child Safety’s custody due to a report or

suspicion of abuse or neglect. The district court further

certified two subclasses: (1) a Non-Kinship Subclass

consisting of members in the General class who are not

placed in the care of an adult relative or person with a

significant relationship with the child; and (2) a Medicaid

Subclass consisting of all members of the General class who

were entitled to services under the federal Medicaid statute.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 B.K. V. SNYDER

Affirming the district court’s certification of the General

Class, the panel first held that class representative B.K. had

standing to press her due process claims given that she has

serious medical diagnoses, presented evidence that she has

not received adequate medical care or appropriate

placements in the past and presented evidence of a risk of

similar future harms. The panel then held that the district

court did not err or abuse its discretion in its ruling that the

class had commonality and typicality and that uniform

injunctive relief was available. The panel concluded that the

district court properly grounded its commonality

determination in the constitutionality of statewide policies

and practices that could be properly litigated in a class

setting. Addressing the typicality requirement, the panel

held that B.K. had demonstrated with evidence that she was

subject to statewide policies and practices that applied to

every member of the class. Finally, the panel held that a

single, indivisible injunction ordering state officials to abate

those policies and practices would provide relief to each

member of the class, thus satisfying Rule 23(b)(2).

Affirming the district court’s certification of the Non-

Kinship Subclass, the panel held that B.K. had standing to

bring the subclass’s due process claims. The panel then held

that by identifying certain statewide practices, such as

excessive use of emergency shelters and group homes, the

district court satisfied the commonality, typicality, and

uniformity of injunctive relief factors. The panel concluded

that the district court would be able to determine whether

defendants have an unconstitutional practice of placing

children in substantial risk of harm by evaluating these

practices as a whole, rather than as to each individual class

member.

B.K. V. SNYDER 5

Addressing the Medicaid Subclass, the panel held that

the materials in the record supported B.K.’s standing. The

panel held that the district court abused its discretion by

certifying the Medicaid Subclass based on an apparent

misconception of the legal framework for such a claim. The

panel noted that in the due process context relevant to the

General and Non-Kinship Subclasses, proving a substantial

risk of harm was all that was necessary to prove a claim. A

claim under the Medicaid Act, however, must be based on

actions that actually violate the Act’s requirements. The

panel further determined that the district court failed to make

a factual finding that every subclass member was subject to

an identical significant risk of a future Medicaid violation

that would support injunctive relief. The panel therefore

vacated the Medicaid Subclass and remanded for further

proceedings.

Concurring in part and dissenting in part, Judge Adelman

concurred in all parts of the majority’s opinion except the

portion addressing the Medicaid Subclass. Judge Adelman

stated that the answer to the legal question of whether

exposure to a risk of harm violates the Medicaid statute did

not affect class certification in this case, where the class

sought only injunctive relief. Moreover, Judge Adelman

stated that the district court made findings of fact that

supported its decision to certify the Medicaid Subclass, and

those findings were not clearly erroneous.

6 B.K. V. SNYDER

COUNSEL

Robert L. Ellman (argued) and David Simpson, Ellman Law

Group LLC, Phoenix, Arizona; Nicholas D. Acedo (argued)

and Daniel P. Struck, Struck Love Bojanowski & Acedo

P.L.C., Chandler, Arizona; Daniel P. Quigley, Cohen Dowd

Quigley P.C., Phoenix, Arizona; Logan T. Johnston,

Johnston Law Offices, Phoenix, Arizona; for Defendants-

Appellants.

Harry Frischer (argued) and Aaron Finch, Children’s Rights

Inc., New York, New York; Anne C. Ronan and Daniel J.

Adelman, Arizona Center for Law in the Public Interest,

Phoenix, Arizona; Andrea J. Diggs, Thomas D. Ryerson,

Joel W. Nomkin, Shane R. Swindle, and Joseph E. Mais,

Perkins Coie LLP, Phoenix, Arizona; for Plaintiffs-

Appellees.

Marsha L. Levick, Juvenile Law Center, Philadelphia,

Pennsylvania, for Amici Curiae Juvenile Law Center, Bluhm

Legal Clinic, Center for Children’s Law & Policy, Center for

Public Representation, Children & Family Justice Center,

Children’s Advocacy Institute, Children’s Defense Fund

New York, Civitas Childlaw Center, Columbia Legal

Services, Disability Rights Pennsylvania, Harvard Law

School Child Advocacy Program, Impact Fund, National

Association of Counsel for Children, National Center for

Youth Law, National Health Law Program, National

Women’s Law Center, Nebraska Appleseed, Robert F.

Kennedy Human Rights, Rutgers School of Law—Camden

Children’s Justice Clinic, Washington Lawyers’ Committee

for Civil Rights and Urban Affairs, and Youth Law Center.

Corene T. Kendrick, Prison Law Office, Berkeley,

California; Amanda W. Shanor and David C. Fathi,

B.K. V. SNYDER 7

American Civil Liberties Union Foundation, Washington,

D.C.; Kathleen E. Brody, ACLU Foundation of Arizona,

Phoenix, Arizona; for Amici Curiae American Civil

Liberties Union, American Civil Liberties Union of Arizona,

and Prison Law Office.

Andrew R. Kaufman, Lieff Cabraser Heimann & Bernstein

LLP, Nashville, Tennessee; Katherine I. McBride, Jason L.

Lichtman, and Jonathan D. Selbin, Lieff Cabraser Heimann

& Bernstein LLP, New York, New York; Elizabeth J.

Cabraser, Lieff Cabraser Heimann & Bernstein LLP, San

Francisco, California; for Amici Curiae Administrative Law,

Civil Procedure, and Federal Courts Professors.

OPINION

WALLACE, Circuit Judge:

The Arizona Department of Child Safety and the Arizona

Health Care Cost Containment System are responsible for

delivering health care and other services to the thousands of

children in the Arizona foster care system. In 2015, ten of

those children brought an action against the directors of

these agencies for alleged violations of the federal

Constitution and the Medicaid Act, alleging that Arizona’s

state-wide policies and practices deprived them of required

medical services, among other things, and thus subjected

them to a substantial risk of harm. Based on these claims, the

district court certified a class of all children who are or will

be in the Department of Child Safety’s custody, along with

two subclasses. The Director of the Department of Child

Safety and the Director of the Health Care Cost Containment

System timely sought review of those class certification

decisions, and we accepted their interlocutory appeals. We

8 B.K. V. SNYDER

have jurisdiction under 28 U.S.C. § 1292, and we affirm in

part, vacate in part, and remand for further proceedings.

I.

A.

Gregory McKay is the Director of the Arizona

Department of Child Safety (DCS). DCS’s primary purpose

is to “protect children,” by investigating reports of abuse and

neglect, establishing foster care placements, working with

law enforcement, maintaining permanency, and providing

treatment to families. Ariz. Rev. Stat. (ARS) § 8-451.

Pursuant to DCS’s statutory framework, DCS investigates

reports of threats to child safety and may remove children

from their homes by superior court order, consent of the

child’s guardian, or where “clearly necessary to protect the

child because exigent circumstances exist.” ARS

§ 8-821(A), (D). DCS may also petition to commence

dependency proceedings in Arizona state court by alleging

that a child is dependent. ARS § 8-841(A). On the filing of

such a petition, the Arizona court may issue “temporary

orders necessary to provide for the safety and welfare of the

child,” ARS § 8-841(F), and assumes continuing jurisdiction

“over all matters affecting dependent children,” In re Appeal

in Maricopa Cty. Juvenile Action No. JD-6236, 874 P.2d

1006, 1008 (Ariz. Ct. App. 1994). The court then holds a

dependency hearing to adjudicate whether the child is

dependent. ARS § 8-844. If the child is dependent, the court

will typically place the child in DCS’s legal custody,

triggering DCS’s legal obligations to the child. See, e.g.,

Oscar F. v. Dep’t of Child Safety, 330 P.3d 1023, 1025 (Ariz.

Ct. App. 2014) (“Since the day after the dependency petition

was filed, the children have been temporary wards of the

Court, committed to the legal care, custody and control of

DCS” (alterations and internal quotation marks omitted)).

B.K. V. SNYDER 9

Jami Snyder is Director of the Arizona Health Care Cost

Containment System (AHCCCS). AHCCCS administers

Arizona’s Medicaid program, which provides medical

services to various categories of individuals within the state.

Medicaid is “a cooperative federal-state program through

which the federal government provides financial assistance

to states so that they can furnish medical care to low-income

individuals.” Cal. Ass’n of Rural Health Clinics v. Douglas,

738 F.3d 1007, 1010 (9th Cir. 2013). Among those

individuals are foster children within the state’s care. See

42 U.S.C. § 1396a(a)(10)(A)(i)(I). Medicaid is jointly

financed by the federal and state governments and is

administered by state governments through state “plans,”

which are approved by the federal Secretary of Health and

Human Services. Cal. Ass’n of Rural Health Clinics,

738 F.3d at 1010. Once a state joins the Medicaid system, it

must comply with federal statutory and regulatory

requirements to ensure that its plan provides all required

healthcare services. Id. These requirements may be court-

enforced through a private claim by eligible Medicaid

beneficiaries, when such a claim exists. Id. at 1013. We refer

to McKay and Snyder collectively as “the Directors” unless

the context otherwise requires, without losing sight of their

unique statutory duties and the distinct claims asserted

against each.

The ten original plaintiffs in this case were foster

children in Arizona’s care. They initiated this action in

February 2015, alleging that the Directors had state-wide

policies and practices that violated their rights to due process

under the Fourteenth Amendment, family integrity under the

First, Ninth, and Fourteenth Amendments, and medical

10 B.K. V. SNYDER

services under the Medicaid Act. 1 The plaintiffs’ original

goal was to maintain a class action with themselves as class

representatives, but over the next two-plus years of litigation

eight plaintiffs were adopted or otherwise removed from the

foster care system, leaving only two at the time of class

certification. Since class certification, moreover, an

additional plaintiff appears to have aged out of the proposed

classes. We therefore discuss plaintiff B.K. as the

representative class member. 2

B.K. alleges that that she has been deprived of necessary

health care, separated from her siblings, deprived of family

contact, and placed in inappropriate care environments. B.K.

alleges that these deprivations amount to violations of her

right to due process under the Fourteenth Amendment and

of her right to reasonably prompt early and periodic

screening, diagnostic, and treatment services (EPSDT

services) under the Medicaid Act. B.K. also alleges that

these violations are caused by specified state-wide policies

and practices.

B.

In November 2016, the named plaintiffs sought class

certification for a class of all children who are or will be in

DCS’s custody, along with a subclass of children who, while

in DCS’s custody, were not placed in the care of an adult

1

The plaintiffs later voluntarily dismissed their family integrity

claim.

2

The record is admittedly vague on this point, but any vagary is

immaterial because it does not affect our disposition. On remand, the

district court remains free to certify, decertify, or amend classes, and the

parties may resolve which plaintiffs remain adequate class members in

that forum. See Fed. R. Civ. P. 23(c)(1)(C).

B.K. V. SNYDER 11

relative or person with a significant relationship with the

child, and a subclass of children eligible for Medicaid. The

named plaintiffs supported their motion for class

certification with their complaint; raw data generated by

DCS to show how DCS was failing to deliver timely health

care to foster children; expert reports by Steven Blatt, MD,

Marci White, MSW, and Arlene Happach, a psychologist,

who declared that Arizona’s foster care system put children

in grave risk of harm by failing to provide adequate care; and

independent investigative reports, deposition testimony, and

DCS/AHCCCS policy and educational materials. B.K. also

supported her claim as class representative with excerpts

from her DCS file that, if interpreted and credited as the

plaintiffs contended, could tend to show she has been kept in

inappropriate home settings and has serious unmet mental

and physical healthcare needs.

B.K. asserted two due process claims on behalf of the

general class, one due process claim on behalf of the non-

kinship subclass, and one Medicaid Act claim on behalf of

the Medicaid subclass. The district court analyzed the class

certification motion through the lens of these claims. In

September 2017, the district court certified the following

classes:

General Class: All children who are or

will be in the legal custody

of DCS due to a report or

suspicion of abuse or

neglect.

Non-Kinship

Subclass: All members in the

General Class who are not

placed in the care of an

adult relative or person

12 B.K. V. SNYDER

who has a significant

relationship with the

child.

Medicaid

Subclass: All members of the

General Class who are

entitled to early and

periodic screening,

diagnostic, and treatment

services under the federal

Medicaid statute.

The district court reasoned that the due process claims could

be litigated class-wide as to the General Class and Non-

Kinship Subclass by answering whether the alleged state-

wide policies and practices were unconstitutional, following

our reasoning in Parsons v. Ryan, 754 F.3d 657 (9th Cir.

2014). The district court explained that:

Even if health issues may differ, every child

in the [DCS] custody is necessarily subject to

the same medical, mental health, and dental

care policies and practices of the [DCS] in the

same way that the inmates in Parsons were

subjected to the policies and practices of the

ADC [Arizona Department of Corrections].

Any one child could easily fall ill, be injured,

need treatment, require a diagnostic, need

emergency care, crack a tooth, or require

mental health treatment. And any child in the

foster care system would be subjected to the

[DCS] policies regarding placement

decisions. Thus, every single child in the

foster care system faces a substantial risk of

B.K. V. SNYDER 13

serious harm if [DCS] policies and practices

fail to adhere to constitutional requirements.

The district court followed similar reasoning to certify the

Medicaid Subclass, explaining that:

Similar to the constitutional claims, central to

the claim here is the question of whether

practices by [DCS] and AHCCCS failed to

adhere to the Medicaid statute. Even if a

child’s specific medical diagnosis may differ,

however, whether the foster care system’s

practices establish a pattern of non-

compliance arise from statewide policies and

practices by [DCS] and AHCCCS.

The district court also held that class certification comported

with Federal Rule of Civil Procedure 23(a)(1), (3)–(4) and

23(b)(2).

The Directors timely sought interlocutory review of the

district court’s class certification order, and we stayed

proceedings in the district court pending our review. The

only issue on appeal is whether the three classes were

properly certified, including whether the named plaintiffs

and class members have standing to bring their claims.

II.

We review a district court’s class

certification decision for abuse of discretion.

An error of law is a per se abuse of discretion.

Accordingly, we first review a class

certification determination for legal error

under a de novo standard, and if no legal error

occurred, we will proceed to review the

14 B.K. V. SNYDER

decision for abuse of discretion. A district

court applying the correct legal standard

abuses its discretion only if it (1) relies on an

improper factor, (2) omits a substantial

factor, or (3) commits a clear error of

judgment in weighing the correct mix of

factors. Additionally, we review the district

court’s findings of fact under the clearly

erroneous standard, meaning we will reverse

them only if they are (1) illogical,

(2) implausible, or (3) without support in

inferences that may be drawn from the

record.

Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1002 (9th Cir.

2018) (internal quotation marks, alterations, and citations

omitted).

“We review the district court’s factual findings [as to

standing] under the clearly erroneous standard and review

the district court’s determination of standing de novo.” Ellis

v. Costco Wholesale Corp., 657 F.3d 970, 978 (9th Cir.

2011).

III.

Class actions are governed by Federal Rule of Civil

Procedure 23. Rule 23(b)(2) provides that “[a] class action

may be maintained if Rule 23(a) is satisfied and if . . . 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.” Rule 23(a) in

turn provides that “members of a class may sue or be sued as

representative parties on behalf of all members only if” four

class prerequisites are met. These four prerequisites are

B.K. V. SNYDER 15

commonly known as (1) numerosity, (2) commonality,

(3) typicality, and (4) adequacy of representation. Gen. Tel.

Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980).

The Directors argue that all three classes in this action

should not have been certified by the district court. We

examine each class in turn.

A.

The district court certified a General Class consisting of

“[a]ll children who are or will be in the legal custody of DCS

due to a report or suspicion of abuse or neglect.” This class

alleges that Director McKay has violated the class’s right to

substantive due process under the Fourteenth Amendment

by failing to care adequately for the children in the class. The

Directors argue that this class should have failed because the

class members lack standing to press their due process claim,

the class lacks commonality, the representative plaintiffs’

claims and defenses are not typical of the class, and uniform

injunctive relief under Rule 23(b)(2) is unavailable.

1.

We begin our analysis with standing. Standing is a

“threshold issue” and an “essential and unchanging part of

the case-or-controversy requirement of Article III.” Horne v.

Flores, 557 U.S. 433, 445 (2009) (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992)). “To establish standing,

a plaintiff must present an injury that is concrete,

particularized, and actual or imminent; fairly traceable to the

defendant’s challenged action; and redressable by a

favorable ruling.” Id. (citing Lujan, 504 U.S. at 560–61). The

Directors argue that absent class members lack standing

because some class members are adequately receiving care,

and thus do not have a concrete due process injury. However,

16 B.K. V. SNYDER

the Directors misunderstand both the nature of the plaintiffs’

due process claims and the nature of an Article III standing

inquiry in the context of class certification.

Of course, the Directors are correct that class

representatives must have Article III standing, as the

irreducible constitutional minimum of a case or controversy.

See In re Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir.

2018). It was the named plaintiffs’ burden — as it would be

any other plaintiff’s — to support each standing element “in

the same way as any other matter on which the plaintiff bears

the burden of proof, i.e., with the manner and degree of

evidence required at the successive stages of litigation.”

Lujan, 504 U.S. at 561. “[T]he manner and degree of

evidence required at the preliminary class certification stage

is not the same as at the successive stages of the litigation —

i.e., at trial.” Sali, 909 F.3d at 1006 (internal quotation marks

omitted). But the Directors then confuse the standing

analysis in a class action for the class certification analysis.

As we have previously explained, “once the named plaintiff

demonstrates her individual standing to bring a claim, the

standing inquiry is concluded, and the court proceeds to

consider whether the Rule 23(a) prerequisites for class

certification have been met.” Melendres v. Arpaio, 784 F.3d

1254, 1262 (9th Cir. 2015) (quoting 1 William B.

Rubenstein, Newberg on Class Actions § 2:6 (5th ed. 2011)).

“[A]ny issues regarding the relationship between the class

representative and the passive class members — such as

dissimilarity in injuries suffered — are relevant only to class

certification, not to standing.” Id. (quoting Newberg on

Class Actions § 2:6). This does not mean that Article III

considerations are irrelevant to Rule 23, for we are always

“mindful that the Rule’s requirements must be interpreted in

keeping with Article III constraints.” Ortiz v. Fibreboard

Corp., 527 U.S. 815, 831 (1999) (alterations omitted)

B.K. V. SNYDER 17

(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

612–13 (1997)). But it does mean that when we measure a

plaintiff’s standing, regardless of whether the plaintiff sues

individually or as class representative, we look concretely at

the facts that pertain to that plaintiff. Thus, the relevant

inquiry here is whether B.K. has standing to bring the two

due process claims asserted on behalf of the General Class.

In this case, B.K. has standing to press her due process

claims, and that concludes the standing inquiry. B.K. has

serious medical diagnoses that require prompt and adequate

medical care from her custodian, which is the State of

Arizona. She has presented evidence that she has not

received adequate medical care or appropriate placements in

the past as well as evidence that statewide policies and

practices expose her to a risk of similar future harms. If state

officials failed and continue to fail to provide her

“reasonable safety and minimally adequate care and

treatment appropriate to [her] age and circumstances”

through the deficient statewide policies and practices she

alleges, the harm to her will have been caused by those

officials. See Lipscomb v. Simmons, 962 F.2d 1374, 1379

(9th Cir. 1992). If those allegedly deficient policies and

practices are abated by an injunction, that harm may be

redressed by a favorable court decision. B.K. therefore has

standing to press the due process claims she brings on behalf

of the General Class.

2.

We next turn to whether B.K. may represent the General

Class consistent with Rule 23. We begin our analysis with

commonality.

Rule 23(a)(2) provides that class members may sue as

representative parties only if “there are questions of law or

18 B.K. V. SNYDER

fact common to the class.” “That language is easy to

misread, since any competently crafted class complaint

literally raises common questions.” Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 349 (2011) (alteration and internal

quotation marks omitted) (quoting Richard Nagareda, Class

Certification in the Age of Aggregate Proof, 84 N.Y.U. L.

Rev. 97, 131–32 (2009)). Merely alleging a “violation of the

same provision of law” does not satisfy commonality. Id. at

350. Instead, the plaintiffs’ claims must “‘depend upon a

common contention’ such that ‘determination of their truth

or falsity will resolve an issue that is central to the validity

of each of the claims in one stroke.’” Parsons, 754 F.3d

at 675 (alteration omitted) (quoting Wal-Mart, 564 U.S.

at 350). “What matters to class certification is not the raising

of common questions — even in droves — but, rather the

capacity of a classwide proceeding to generate common

answers apt to drive the resolution of the litigation.” Id.

(internal quotation marks, alterations, and emphasis omitted)

(quoting Wal-Mart, 564 U.S. at 350). “[W]here the

circumstances of each particular class member vary but

retain a common core of factual or legal issues with the rest

of the class, commonality exists.” Id. (quoting Evon v. Law

Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir.

2012)).

“[I]n all class actions, commonality cannot be

determined without a precise understanding of the nature of

the underlying claims.” Id. at 676. “[T]o assess whether the

putative class members share a common question, the

answer to which will resolve an issue that is central to the

validity of each one of the class member’s claims, we must

identify the elements of the class member’s case-in-chief.”

Id. (internal quotation marks and alterations omitted)

(quoting Stockwell v. City and Cty. of San Francisco,

749 F.3d 1107, 1114 (9th Cir. 2014)).

B.K. V. SNYDER 19

Here, B.K. seeks to press two due process claims on

behalf of the General Class. Due process requires the state to

provide children in its care “reasonable safety and minimally

adequate care and treatment appropriate to the age and

circumstances of the child.” Lipscomb, 962 F.2d at 1379. To

prevail on a claim for failure to meet this duty, a plaintiff

must prove that state officials acted with such deliberate

indifference to the plaintiffs’ liberty interest that their actions

“shock the conscience.” Tamas v. Dep’t of Soc. & Health

Servs., 630 F.3d 833, 844 (9th Cir. 2010) (quoting Brittain

v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006)). This standard

requires proof of two facts: (1) an objectively substantial risk

of harm, and (2) the official’s subjective awareness of that

risk. Id. at 845. The second part may be proven by showing

(1) that the official was aware of facts from which an

inference of risk may be drawn and that the official made

that inference, (2) that the official was aware of facts from

which an inference of risk may be drawn and that any

reasonable official would have been compelled to draw that

inference, or (3) that the risk of harm is obvious. Id.

Based on the nature of the plaintiffs’ due process claims

and the scope of the class certified, the district court here did

not abuse its discretion by determining that commonality

exists. We have previously recognized in the Eighth

Amendment context that a state’s policies and practices can

expose all persons within its custody to a substantial risk of

harm, which is the legal standard required by this due

process claim. In Parsons v. Ryan, we held that a class of

“all prisoners who are now, or will in the future be, subjected

to the medical, mental health, and dental care policies and

practices of the ADC [Arizona Department of Corrections]”

had sufficient commonality because “[t]he putative class . . .

members thus all set forth numerous common contentions

whose truth or falsity can be determined in one stroke:

20 B.K. V. SNYDER

whether the specified statewide policies and practices to

which they are all subjected by ADC expose them to a

substantial risk of harm.” 754 F.3d at 678. We explicitly

rejected the reasoning pressed on us by the Directors here:

that “plaintiffs’ claims a[re] ultimately little more than a

conglomeration of many such individual claims, rather than

. . . a claim that central policies expose all inmates to a risk

of harm.” Id. at 675 n.17. Thus, it did not matter whether

each individual prisoner had already been harmed by falling

sick and receiving inadequate care, but whether every

prisoner, solely by virtue of being in Arizona’s prisons, was

at substantial risk of future harm. Id. at 678. Because every

prisoner in the class was exposed, “as a result of specified

statewide ADC policies and practices that govern the overall

conditions of health care services and confinement, to a

substantial risk of serious future harm to which the

defendants are allegedly deliberately indifferent . . . every

inmate suffer[ed] exactly the same constitutional injury.” Id.

The “policies and practices [we]re the ‘glue’ that h[eld]

together the putative class,” because “either each of the

policies and practices is unlawful as to every inmate or it is

not.” Id. 3

The same reasoning applies here. The district court

properly grounded its commonality determination in the

constitutionality of statewide policies and practices, which is

a “common question of law or fact” that can be litigated in

3

Some of the policies and practices alleged in Parsons included:

“creation of lengthy and dangerous delays in receiving care and outright

denials of health care; . . . a practice of employing insufficient health care

staff; . . . failure to provide prisoners with care for chronic diseases and

protection from infectious diseases; . . . denial of medically necessary

mental health treatment . . . and . . . denial of basic mental health care to

suicidal and self-harming prisoners.” Parsons, 754 F.3d at 664 (internal

quotation marks and alterations omitted).

B.K. V. SNYDER 21

“one stroke.” See Wal-Mart, 564 U.S. at 350. Specifically,

the district court identified the following “statewide

practices affecting the proposed General Class”: (1) failure

to provide timely access to health care, including

comprehensive evaluations, timely annual visits, semi-

annual preventative dental health care, adequate health

assessments, and immunizations; (2) failure to coordinate

physical and dental care service delivery; (3) ineffective

coordination and monitoring of DCS physical and dental

services; (4) overuse of congregate care for children with

unmet mental needs; (5) excessive caseworker caseloads;

(6) failure to investigate reports of abuse timely; (7) failure

to document “safety assessments”; (8) failure to close

investigations timely; and (9) investigation delays.

Regardless whether any of these policies are ultimately

found unconstitutional such that the plaintiffs prevail on the

merits, their constitutionally can properly be litigated in a

class setting. Thus, as in Parsons, the statewide policies and

practices are the “glue” that holds the class together. See

754 F.3d at 678.

The Directors do not seriously dispute the adequacy of

the General Class in this regard. At oral argument, counsel

for the Directors conceded that they were not challenging the

district court’s application of Parsons, but the validity of

Parsons itself. That argument is beyond the scope of this

panel’s authority and we will not address it. See Miller v.

Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc)

(holding that circuit precedent may be overturned only en

banc, with exceptions that do not apply here). We therefore

conclude that the district court did not abuse its discretion by

concluding that commonality existed.

22 B.K. V. SNYDER

3.

We next address typicality. Rule 23(a)(3) provides that

class members may sue as representative parties only if “the

claims or defenses of the representative parties are typical of

the claims or defenses of the class.” The named plaintiff’s

representative claims are “typical” if they are “reasonably

coextensive with those of absent class members; they need

not be substantially identical.” Parsons, 754 F.3d at 685

(quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th

Cir. 1998)). “The test of typicality is ‘whether other

members have the same or similar injury, whether the action

is based on conduct which is not unique to the named

plaintiffs, and whether other class members have been

injured by the same course of conduct.’” Id. (quoting Hanon

v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)).

In Parsons, we concluded that the district court did not

abuse its discretion in similar circumstances. There, we

reasoned that (1) “the named plaintiffs are all inmates in

ADC custody” and (2) “[e]ach declares that he or she is

being exposed, like all other members of the putative class,

to a substantial risk of serious harm by the challenged ADC

policies and practices.” Id. Based on those facts, we

concluded that

The named plaintiffs thus allege “the same or

a similar injury” as the rest of the putative

class; they allege that this injury is a result of

a course of conduct that is not unique to any

of them; and they allege that the injury

follows from the course of conduct at the

center of the class claims.

Id. (alteration omitted) (quoting Hanon, 976 F.2d at 508).

B.K. V. SNYDER 23

Once more, the same reasoning applies here. B.K. is a

child in Arizona’s custody. The members of the General

Class are children who are or will be in Arizona’s custody.

B.K. has demonstrated, not merely through allegations but

through raw data, expert reports, deposition testimony, and

DCS materials, that she is subject to statewide policies and

practices that apply equally to every member of the class. By

defining her claim based on the risk of harm caused by these

policies — a cognizable constitutional injury under our

precedent — B.K. has demonstrated that class members have

similar injuries, based on conduct that is not unique to her,

and caused by the same injurious course of conduct. See id.

The Directors counter that B.K., and in fact any class

representative, remains atypical because the class is

internally in conflict. Citing typicality’s purpose of

“assur[ing] that the interest of the named representative

aligns with the interests of the class,” Stearns v. Ticketmaster

Corp., 655 F.3d 1013, 1019 (9th Cir. 2011) (quoting Wolin

v. Jaguar Land Rover N. Am., 617 F.3d 1168, 1175 (9th Cir.

2010)), the Directors argue that class representatives will

seek to prioritize their own desired reforms to Arizona’s

foster care system at the expense of other possibilities. This

is not necessarily true, cf. Peralta v. Dillard, 744 F.3d 1076,

1083 (9th Cir. 2014) (en banc) (“Lack of resources is not a

defense to a claim for prospective relief because prison

officials may be compelled to expand the pool of existing

resources in order to remedy continuing Eighth Amendment

violations”), but — even were we to agree with the

Directors’ argument in principal — it would not be enough

for us to deem the district court’s contrary decision a legal

error or “a clear error of judgment.” See Sali, 909 F.3d at

1002. B.K.’s claim is reasonably coextensive with absent

class members’ claims, and that is sufficient.

24 B.K. V. SNYDER

The district court did not abuse its discretion by

determining that the named plaintiffs were typical of the

class.

4.

Finally, we address uniform injunctive relief. Civil Rule

23(b)(2) provides that “[a] class action may be maintained if

. . . 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.” “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.’” Wal-

Mart, 564 U.S. at 360 (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. It does not authorize class

certification when each individual class member would be

entitled to a different injunction.” Id. (emphasis in original

omitted).

In Parsons, we concluded that the district court did not

abuse its discretion by certifying a Rule 23(b)(2) class when

the plaintiffs requested the defendants be ordered “to

develop and implement, as soon as practical, a plan to

eliminate the substantial risk of serious harm that prisoner

Plaintiffs and members of the Plaintiff Class suffer due to

Defendants’ inadequate medical, mental health, and dental

care.” 754 F.3d at 687. Rejecting the defendants’ argument

that every individual inmate required an individual

injunction, we explained that Rule 23(b)(2)’s requirements

are “unquestionably satisfied when members of a putative

class seek uniform injunctive or declaratory relief from

B.K. V. SNYDER 25

policies or practices that are generally applicable to the class

as a whole.” Id. at 688. Thus, because “all members of the

putative class and subclass [we]re allegedly exposed to a

substantial risk of serious harm by a specified set of

centralized ADC policies and practices of uniform and

statewide application,” the defendants had “acted or refused

to act on grounds that apply generally to the class.” Id.

(quoting Fed. R. Civ. P. 23(b)(2)).

Once more, the same reasoning applies here. The

plaintiffs have not brought a concatenation of individual

claims that must be redressed through individual injunctions;

they have brought unified claims that “a specified set of

centralized [DCS] policies and practices of uniform and

statewide application” have placed them at a substantial risk

of harm. See id. A single, indivisible injunction ordering

state officials to abate those policies and practices “would

provide relief to each member of the class,” thus satisfying

Rule 23(b)(2). See Wal-Mart, 564 U.S. at 360.

The Directors’ arguments to the contrary do not convince

us. The Directors first argue that no injunction could apply

to all plaintiffs in the general class because different foster

children face different potential harms, thus having different

competing interests, and thus needing different injunctive

relief. But this argument improperly assumes that abating the

plaintiffs’ specified policies and practices will be an either-

or situation where only some (or zero) class members

receive their desired relief. That is incorrect, for two reasons.

First, class certification is not a decision on the merits, and

the plaintiffs will only be entitled to injunctive relief if such

relief is necessary to redress the constitutional violations

they actually prove at trial. Second, even if abating two or

more unconstitutional policies is impossible with limited

funds, state officials “may be compelled to expand the pool

26 B.K. V. SNYDER

of existing resources in order to remedy continuing

[constitutional] violations.” Peralta, 744 F.3d at 1083. For

instance, the district court could enjoin DCS to hire more

caseworkers in order to meet health care delivery deadlines

in a manner that ensures the plaintiffs receive timely medical

evaluations and care. Cf. Parsons, 754 F.3d at 689 (“For

example, every inmate in ADC custody is allegedly placed

at risk of harm by ADC’s policy and practice of failing to

employ enough doctors — an injury that can be remedied on

a class-wide basis by an injunction that requires ADC to hire

more doctors”). Thus, any future lack of resources or other

federalism concerns invoked by the prospect of injunctive

relief go only to the ultimate scope of the injunction. They

do not per se forbid the district court from certifying a

Rule 23(b)(2) class.

The Directors next argue that the district court erred

because the plaintiffs failed to provide a specific injunction

that could satisfy Rule 23(b)(2) and Rule 65(d). This

argument has no basis in existing law, whether in the text of

the Federal Rules or in our precedent. Plaintiffs do not need

to specify the precise injunctive relief they will ultimately

seek at the class certification stage. Instead, as we have

explained before, Rule 23(b)(2)

ordinarily will be satisfied when plaintiffs

have described the general contours of an

injunction that would provide relief to the

whole class, that is more specific than a bare

injunction to follow the law, and that can be

given greater substance and specificity at an

appropriate stage in the litigation through

fact-finding, negotiations, and expert

testimony.

B.K. V. SNYDER 27

Parsons, 754 F.3d at 689 n.35. In this case, the “general

contours of an injunction” are enjoining DCS to abate the

nine policies identified by the district court as amenable to

class-wide litigation. That was enough. A more specific

injunction will depend on further fact-finding and what

claims the plaintiffs actually prove through further litigation.

In sum, the district court did not err or abuse its

discretion in its rulings on standing, commonality, typicality,

and uniform injunctive relief. We affirm the district court’s

certification of the General Class.

B.

We next consider the Non-Kinship Subclass. The district

court certified a class of “[a]ll members in the General Class

who are not placed in the care of an adult relative or person

who has a significant relationship with the child.” As with

the General Class, the plaintiffs’ legal theory was that this

subclass was denied due process of law under the Fourteenth

Amendment when Director McKay’s statewide practices

and policies placed them at substantial risk of harm.

We begin our Non-Kinship Subclass inquiry with

standing. Once more, the relevant question is whether B.K.

has standing to challenge the allegedly unconstitutional

policies and practices affecting the subclass. See Melendres,

784 F.3d at 1262. Once more, we conclude that B.K. has

standing to bring this subclass’s due process claim. B.K. has

alleged and presented evidence that she has been separated

from her siblings, prevented from seeing her mother, placed

in an inappropriate group home, and placed in temporary

housing for long periods of time. B.K. has also presented

evidence, as we have previously discussed, that she has

serious behavioral and medical concerns requiring attention

from her custodian. B.K. has thus alleged and provided

28 B.K. V. SNYDER

evidence that, as a child in DCS custody, she faces a risk of

harm from DCS policies and practices that inadequately

provide for children who do not have available kinship

placements. Consistent with “the manner and degree of

evidence required at th[is] . . . stage[] of litigation” to prove

standing, Lujan, 504 U.S. at 561, these allegations and

evidence describe imminent, concrete injuries — fairly

traceable to the alleged state-wide practices and redressable

by abatement of those practices. The district court did not err

by concluding that B.K. has standing.

There is little else to add about this subclass that we have

not already said about the General Class. The Directors’

brief does not suggest a reason why the Non-Kinship

Subclass would fail if the General Class succeeds, and we

“will not manufacture arguments for an appellant.”

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). We

therefore confine our review to whether, under the same

challenges articulated in our foregoing discussion of the

General Class, the district court abused its discretion by

certifying the Non-Kinship Subclass.

We conclude that the district court did not abuse its

discretion. The district court identified the following

statewide practices affecting the Non-Kinship Subclass:

(1) excessive use of emergency shelters and group homes;

(2) unnecessary separation of siblings; and (3) placement of

children far from home. As with the General Class,

commonality, typicality, and uniformity of injunctive relief

were satisfied by identifying these practices because the

district court will be able to determine whether the Directors

have an unconstitutional practice of placing children in

substantial risk of harm by evaluating these practices as a

whole, rather than as to each individual class member. For

instance, if the plaintiffs prove that state officials have a

B.K. V. SNYDER 29

practice of placing children in emergency shelters for

months, and that such a practice is unconstitutional, it might

declare that practice unconstitutional. The district court

might then enjoin the Directors to take concrete steps to meet

specific placement deadlines, such as by expanding the

number of foster homes. Cf. Parsons, 754 F.3d at 689 (“For

example, every inmate in ADC custody is allegedly placed

at risk of harm by ADC’s policy and practice of failing to

employ enough doctors — an injury that can be remedied on

a class-wide basis by an injunction that requires ADC to hire

more doctors”). That demonstrates the requisite

commonality, typicality, and uniformity of injunctive relief.

It does not matter whether, at this “tentative, preliminary,

and limited” phase, see Sali, 909 F.3d at 1004 (internal

quotation marks and citations omitted), proving the

unconstitutionality of these practices will be difficult or not.

It also does not matter whether crafting appropriate

injunctive relief will be difficult or not. Those merits

questions, while not irrelevant to the class certification

inquiry, do not preclude certification as a matter of law

unless proving the answer to a common question or crafting

uniform injunctive relief will be impossible. Otherwise, we

commit class certification decisions to the district court’s

discretion, and we hold there is no “clear error of judgment”

here that shows an abuse of that discretion. See id. at 1002.

We therefore affirm the district court’s certification of

the Non-Kinship Subclass.

C.

We last consider the Medicaid Subclass. The district

court certified a class of “[a]ll members of the General Class

who are entitled to early and periodic screening, diagnostic,

and treatment services under the federal Medicaid statute.”

The Directors argue that this subclass lacks commonality,

30 B.K. V. SNYDER

typicality, uniformity of injunctive relief, and that the class

lacks standing. The Directors also argue that the plaintiffs

have failed to prove sufficiently the factual bases for those

requirements.

1.

Once again, we begin our analysis with standing. The

relevant question is whether B.K. has suffered, or will

imminently suffer, a concrete injury, caused by the

Directors’ failure to timely provide her with EPSDT

services, and redressable by a favorable court decision. See

Melendres, 784 F.3d at 1262. These elements must be

supported by “the manner and degree of evidence required

at th[is] successive stage[] of the litigation,” Lujan, 504 U.S.

at 561, i.e., tentative class certification. At this “tentative,

preliminary, and limited” stage we have held strictly

admissible evidence is not required, see Sali, 909 F.3d at

1004 (internal quotation marks and citations omitted), and

we have indicated that plaintiffs can meet their evidentiary

burden in part through allegations when the allegations are

detailed and supported by additional materials, see Parsons,

754 F.3d at 683 (concluding that plaintiffs met evidentiary

burden through “four thorough and unrebutted expert

reports, the detailed allegations in the 74-page complaint,

hundreds of internal ADC documents, and declarations by

the named plaintiffs”).

Here, B.K. alleges that she has been “deprived of needed

physical and mental health care,” including by failures to

ensure that she obtained glasses, to ensure she received

orthopedic shoes, to have her seen by a dentist, to provide

her with psychological evaluations, and to provide her with

counseling. She also alleges that the Directors have “a

practice of failing to provide members of the Medicaid

Subclass with the screening, diagnostic and treatment

B.K. V. SNYDER 31

services required under the EPSDT provisions of the

Medicaid Act.” These allegations, if true, would demonstrate

a concrete injury caused by the failure to receive EPSDT

services timely as well as “a sufficient likelihood that [s]he

will again be wronged in a similar way,” which would be

redressable by an injunction ordering the Directors to abate

the policies and/or practices that caused the delivery failure.

See Haro v. Sebelius, 747 F.3d 1099, 1108 (9th Cir. 2014)

(quotation marks and citation omitted); see also Armstrong

v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (abrogated on

other grounds by Johnson v. California, 543 U.S. 499

(2005)) (explaining that for purposes of standing to seek

injunctive relief, “the plaintiff may demonstrate that the

harm is part of a pattern of officially sanctioned behavior,

violative of the plaintiffs’ federal rights,” and that “where

the defendants have repeatedly engaged in the injurious acts

in the past, there is a sufficient possibility that they will

engage in them in the near future” (alterations and quotation

marks omitted)). However, at this stage of the litigation

allegations alone are insufficient to meet B.K.’s burden. We

therefore examine whether she has submitted sufficient

evidence to support her standing to bring this claim.

The confidential medical and placement evidence in the

record is thin, but we conclude that it is sufficient to

corroborate the allegations at this stage. B.K.’s allegations

are supported by materials suggesting that she has in fact

been denied the services she alleges she is entitled to but has

not received. B.K. has also submitted evidence suggesting

that these practices have continued over time and may occur

again. B.K. therefore has standing to bring her Medicaid

claim. To the extent the Directors are correct that these facts

are wrong, that issue may be considered by the district court

on remand. On appeal, however, the materials in the record

adequately support B.K.’s standing. We therefore proceed to

32 B.K. V. SNYDER

considering whether the Medicaid Subclass was properly

certified with B.K. as class representative.

2.

We begin our class certification analysis with

commonality. The Medicaid Subclass poses different

questions from the General Class and Non-Kinship Subclass

in this regard. Unlike the due process claims, which were

clearly alleged on a substantial risk of harm theory, the

foundation of the plaintiffs’ legal theory for the Medicaid

claim was somewhat opaque at class certification, and it

remains opaque on appeal. In addition, while the ultimate

success of any Medicaid theory is irrelevant at this stage,

merits questions nonetheless matter at class certification to

the extent necessary to assess whether Rule 23 has been

satisfied. See Wal-Mart, 564 U.S. at 351. We therefore

cannot affirm the Medicaid Subclass certification without

first carefully examining the nature of the plaintiffs’ claim

under the Medicaid Act.

As we explained in our recitation of the facts, Medicaid

is “a cooperative federal-state program through which the

federal government provides financial assistance to states so

that they can furnish medical care to low-income

individuals.” Cal. Ass’n of Rural Health Clinics, 738 F.3d at

1010. States operate Medicaid plans that must conform with

the federal Medicaid statutes and regulations, and in certain

instances beneficiaries can enforce those federal

requirements through a private action. Id. at 1010, 1013. One

of these federal requirements is that state plans must provide

medical assistance to children within their care. 42 U.S.C.

§ 1396a(a)(10)(A)(i)(I). This medical assistance includes

EPSDT services, id. § 1396d(a)(4)(B), which are defined to

include regular screenings, vision services, dental services,

hearing services, and “[s]uch other necessary health care,

B.K. V. SNYDER 33

diagnostic services, treatment, and other measures described

in subsection (a) of [section 1396d] to correct or ameliorate

defects and physical and mental illnesses and conditions

discovered by the screening services,” id. § 1396d(r). States

must ensure that EPSDT services provided are “reasonably

effective,” and, while they may delegate provision of such

services to other organizations, “the ultimate responsibility

to ensure treatment remains with the state.” Katie A., ex rel.

Ludin v. Los Angeles Cty., 481 F.3d 1150, 1159 (9th Cir.

2007). States must also ensure that children receive EPSDT

services “promptly” and “without any delay caused by the

agency’s administrative procedures.” 42 C.F.R.

§ 435.930(a).

In their complaint, the plaintiffs alleged that the

Directors violated the Medicaid Act by failing to provide

EPSDT services timely. Although alleged as one claim, there

are two possible legal theories that could support it. First, the

plaintiffs might demonstrate that the Directors failed to

provide statutorily mandated EPSDT services. See Katie A.,

481 F.3d at 1159. Second, the plaintiffs might demonstrate

that, even if all required services were eventually provided,

the Directors failed to provide the services with reasonable

promptness. See 42 C.F.R. § 435.930(a); see also Kessler v.

Blum, 591 F. Supp. 1013, 1032–33 (S.D.N.Y. 1984)

(certifying class based on unreasonably long delays in

providing services to all New York State residents). The

plaintiffs here alleged both that the Directors had a practice

of failing to provide EPSDT services and a practice of failing

to provide EPSDT services with reasonable promptness, and

the district court reasoned that commonality existed because

it could adjudicate whether Arizona’s “foster care system’s

practices establish a pattern of non-compliance.”

34 B.K. V. SNYDER

We hold that the district court abused its discretion by

certifying the Medicaid Subclass based on an apparent

misconception of the legal framework for such a claim.

Throughout this litigation, the plaintiffs’ class certification

argument has rested on a misunderstanding of the Medicaid

Act. In the Eighth Amendment context, and in the due

process context relevant to the General Class and Non-

Kinship Subclass, proving a substantial risk of harm is all

that is necessary to prove the claim. See Parsons, 784 F.3d

at 677 (“[A] prison official’s deliberate indifference to a

substantial risk of serious harm to an inmate violates the

Eighth Amendment” (quotation marks and citation

omitted)). The same is not true of a claim under the Medicaid

Act, which must be based on acts or omissions by the state

that actually violate the requirements imposed by the

Medicaid Act. Yet the plaintiffs have both here and in the

district court premised their arguments on the reasoning that

proving risk alone establishes an EPSDT claim. Nothing in

the text of the Medicaid Act or its accompanying regulations

supports this approach because neither suggests that being at

risk of not receiving Medicaid services is itself a Medicaid

violation. The most natural reading of the Act and our

precedents is that a violation occurs when EPSDT services

have failed to be provided in a timely manner. See Katie A.,

481 F.3d at 1157 (“In general, the EPSDT provisions require

only that the individual services listed in § 1396d(a) be

provided”); 42 C.F.R. § 435.930(a). The plaintiffs have thus

conflated the commonality analysis for their due process

claims with the commonality analysis for their Medicaid

claims by erroneously importing the “substantial risk of

harm” standard from Parsons without considering the

distinct nature of the Medicaid Act.

The district court’s analysis on this point appears to have

followed the same reasoning as was offered by the plaintiffs.

B.K. V. SNYDER 35

The district court did discuss commonality in this case by

referring to common questions that were tethered to the

Medicaid Act in particular. But the court identified those

common questions as “whether [DCS and AHCCCS’s]

practices . . . failed to provide timely and adequate access to

. . . services; [] failed to coordinate care to ensure timely

medically necessary . . . treatment . . . ; and [] failed to build

and maintain an adequate capacity and infrastructure of

mental health providers and therapeutic placements.”

Without further findings on the policies or practices that

caused these failures, it is unclear whether the Medicaid

claim can be litigated class-wide, because it is not clear

whether these failures caused the same deprivations of

services or risks of such deprivations across the whole

subclass, or whether some categories of children were

deprived services while others were not. 4 The district court’s

class certification order thus rests on a legal error, which

always constitutes an abuse of discretion. See Sali, 909 F.3d

at 1002.

The plaintiffs nonetheless contend that class certification

should be upheld because a similar, but distinct, risk theory

supports the class. Specifically, the plaintiffs argue that,

because a plaintiff can have standing to challenge a statutory

violation before the violation has occurred, see Cent. Delta

Water Agency v. United States, 306 F.3d 938, 949 (9th Cir.

2002), the class may be certified based on a common

4

Relatedly, it is not clear that the district court specifically

considered whether B.K. is typical of those in the Medicaid Subclass,

and thus whether Rule 23’s typicality requirement is satisfied with

respect to the Medicaid claim. The court concluded only that “every

child in the foster care system under state custody is highly likely to

require medical care” without addressing whether every other child had,

like B.K., been denied adequate medical care or was subject to an

imminent risk of a statutory violation.

36 B.K. V. SNYDER

“significant risk” of an imminent Medicaid violation to all

class members, see id. (identifying “significant risk” as the

correct standard when a plaintiff challenges a future

statutory violation). Under this theory, the plaintiffs argue, it

does not matter whether risk proves a completed Medicaid

violation because they can obtain injunctive relief based on

risk alone.

As a conceptual matter, we agree with the plaintiffs that

Rule 23’s commonality requirement can be satisfied in a

statutory case by a common risk of a future violation that

flows from the same state-wide policy or practice. As

explained above, the relevant question for commonality is

whether every child in the Medicaid Subclass is subjected to

the same state-wide policy or practice that violates the

Medicaid Act. 5 There are two ways that this could occur.

First, the policy or practice could be facially invalid, such as

by directly contravening the Medicaid Act. This theory has

not been presented as the basis for commonality in this case.

Second, the policy or practice could expose every child in

the subclass to a significant risk of an imminent future

Medicaid violation. Under this theory, the plaintiffs are

correct that they may challenge the Medicaid violation

before it has taken place, so long as the requisite “significant

risk” exists, so commonality may exist based on a finding

that all class members are subjected to the same risk. See id.

The plaintiffs’ argument nonetheless fails, however,

because the district court did not make factual findings or

5

By this we do not hold, and our opinion should not be read to

imply, that the plaintiffs must show that they will prevail on their claim

of a Medicaid violation at the class certification stage. Rather, they must

show only that, if they do prevail on the merits, they will be able to

prevail class-wide.

B.K. V. SNYDER 37

exercise its discretion based on this understanding of

commonality when it certified the Medicaid Subclass.

Nowhere in its order is there a factual finding that every

subclass member was subject to an identical “significant

risk” of a future Medicaid violation that would support

injunctive relief. True, we could perhaps infer that such a

finding was made because the district court exercised its

discretion to certify the class after correctly explaining that

“central to the claim here is the question of whether practices

by [DCS] and AHCCCS failed to adhere to the Medicaid

statute.” But we are skeptical we should do so in light of the

legal error we have identified, which appears intertwined

with the district court’s decision to certify this subclass.

Moreover, as an appellate body we cannot presume that the

district court would have made this finding or exercised its

discretion to certify the class had it considered this legal

theory for commonality, and we will not supplant its

discretion by making that determination for ourselves. We

therefore vacate the Medicaid Subclass and remand for

further proceedings. 6 We emphasize that, while we have

6

The partial dissent argues that vacatur is not warranted because

“errors of law that do not affect the district court’s discretionary decision

can be disregarded.” The partial dissent thus argues that we should

uphold the Medicaid Subclass on the alternative risk theory presented by

the plaintiffs. But, as we have explained, doing so would substitute the

district court’s role in certifying the class with our role in reviewing

certification on appeal. The record does not permit us to infer what the

district court must have found as to the Medicaid Subclass by

extrapolation from the General Class.

The partial dissent suggests that we can make such an inference

because “B.K. challenges the exact same state-wide policies that create

the exact same risk of not receiving the exact same medical services,”

and states that the “only difference” between the class claims is that “to

obtain an injunction under the Medicaid statute, B.K. does not have to

prove deliberate indifference, as she must to obtain an injunction under

38 B.K. V. SNYDER

vacated class certification based on the nature of the

litigation to date, nothing in our opinion should prevent the

district court from making new factual findings and

exercising its discretion to recertify the Medicaid Subclass

on remand, if it determines that such action would be

appropriate.

All parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and

REMANDED.

the Due Process Clause.” The plaintiffs’ counsel did make that

representation about the class claims at oral argument. However, the

record belies counsel’s assertion. B.K.’s claim on behalf of the General

Class challenged those harms cognizable under the due process clause

for medical deficiencies and the failure to conduct timely investigations

into reports of abuse or neglect, while B.K.’s claim on behalf of the

Medicaid Subclass challenged those harms cognizable under the

Medicaid Act for EPSDT deficiencies. From these divergent claimed

harms, the district court identified divergent common questions: the

common questions binding the General Class were the constitutionality

of the Directors’ failure to provide physical and dental care, failure to

provide mental and behavioral health care, and failure to conduct

investigations timely, while the common questions binding the Medicaid

Subclass were the legality of the Directors’ failure to provide timely and

adequate access to EPSDT services, failure to coordinate care to ensure

timely EPSDT services, and failure to build and maintain an adequate

capacity of mental health providers and therapeutic placements. The

class claims are thus not the same, and they cannot be treated the same

for purposes of class certification. Only a separate class certification

analysis, recognizing the difference between the due process claims and

the Medicaid claim as we have explained in this opinion, and making

factual findings in conformity with that legal framework, will ensure that

“after a rigorous analysis, . . . the prerequisites of Rule 23(a) have been

satisfied.” See Wal-Mart, 564 U.S. at 350–51 (citation omitted).

B.K. V. SNYDER 39

ADELMAN, District Judge, concurring in part and

dissenting in part:

I concur in all parts of the majority opinion except for

Part III.C.2, in which the majority concludes that the district

court abused its discretion by certifying the Medicaid

subclass. According to the majority, the district court abused

its discretion because it made an error of law when it

assumed that a state-wide policy or practice that exposes all

members of the proposed subclass to a substantial risk of not

receiving Medicaid services violates the Medicaid statute.

But the answer to the legal question of whether exposure to

a risk of harm violates the Medicaid statute does not affect

class certification in this case, where the class seeks only

injunctive relief. So the district court’s potential error of law

did not affect its application of the Rule 23 standards, and

therefore any such error did not result in an abuse of

discretion. Moreover, the district court made findings of fact

that support its decision to certify the Medicaid subclass, and

those findings are not clearly erroneous. Accordingly, I

would affirm the district court’s certification of this subclass.

I.

The majority affirms the district court’s certification of a

class of Arizona foster children who seek to enjoin, under

the Due Process Clause, certain state-wide policies that

allegedly expose them to a substantial risk of not receiving

certain medical services. Oddly, the majority then vacates

the district court’s certification of a subclass of the same

children who seek to enjoin the exact same policies under

the Medicaid statute. Under the majority’s approach, the

district court properly certified, under the Due Process

Clause, a class of all foster children who challenge the state’s

allegedly subjecting them to a substantial risk of not

receiving “timely access to health care, including

40 B.K. V. SNYDER

comprehensive evaluations, timely annual visits, semi-

annual preventative dental health care, adequate health

assessments, and immunizations.” Maj. op. at 21. Yet the

majority concludes that the district court erred in certifying

a subclass of these children who seek to enjoin the same

conduct under the Medicaid statute, even though Medicaid

requires the state to provide them with those very same

medical services. See 42 U.S.C. § 1396d(r) (defining early

and periodic screening, diagnostic, and treatment services to

include regular health, dental, and vision screening and

appropriate immunizations).

According to the majority, this contradictory result is

required because the district court misunderstood the

difference between a claim under the Due Process Clause

and a claim under the Medicaid statute. Under the Due

Process Clause, exposure to a substantial risk of harm is

itself a violation of law, even if the harm does not ultimately

occur. Maj. op. at 34. In contrast, under the Medicaid statute,

a violation is not complete until a child is denied required

medical services (or fails to receive the services at the

required time). Id.

I agree with the majority that this is indeed a difference

between a claim under the Due Process Clause and a claim

under the Medicaid statute. However, this difference has no

relevance to class certification in this case, in which the

plaintiffs seek only injunctive relief. As the majority

acknowledges, a plaintiff may seek injunctive relief to

prevent a statutory violation before it occurs. Maj. op. at 36.

And that is exactly what the plaintiffs are trying to

accomplish with the Medicaid subclass: they are trying to

prevent Medicaid violations before they occur. The way they

are trying to do this is by obtaining a single injunction that

requires the defendants to do things, such as hire more

B.K. V. SNYDER 41

caseworkers, that will ensure that all children receive the

services to which they are entitled under Medicaid. Thus, the

claims of the Medicaid subclass present common questions

that can be answered in one stroke. For example, either

Arizona employs enough caseworkers to ensure that all

children receive the EPSDT services required by Medicaid,

or it does not; there is no need for a child-by-child inquiry to

determine whether Arizona’s staffing policies expose all

children in Arizona’s custody to a substantial risk of not

receiving those services. Cf. Parsons v. Ryan, 754 F.3d 657,

680 (9th Cir. 2014) (“Either ADC employs enough nurses

and doctors to provide adequate care to all of its inmates or

it does not do so; there is no need for an inmate-by-inmate

inquiry to determine whether all inmates in ADC custody are

exposed to a substantial risk of serious harm by ADC

staffing policies.”). If the plaintiffs prove that Arizona does

not employ enough caseworkers, then a single injunction

requiring the state to hire more caseworkers will remove the

substantial risk of Medicaid violations.

The situation would be different if the members of the

Medicaid subclass sought damages. Because exposing a

child to a risk of not receiving required Medicaid services

does not itself violate the child’s rights under Medicaid, the

child could not seek damages until services were delayed or

denied. But under the Due Process Clause, the child could

seek at least nominal damages for a past exposure to a

substantial risk of harm. Thus, if the district court had

certified damages classes under both the Due Process Clause

and the Medicaid statute, the majority would be right to

vacate certification of the Medicaid subclass. To award

damages under the Medicaid statute, the district court would

have to review the facts applicable to each individual class

member to determine whether he or she actually sustained a

Medicaid violation—there would be no common question

42 B.K. V. SNYDER

that could be answered for all class members in one stroke.

But again, in this case, where the plaintiffs seek only

injunctive relief, there are common questions that can be

answered in one stroke: whether the challenged policies—

including failing to hire enough caseworkers—subject all

children in the foster care system to a substantial risk of not

receiving required services, such as timely immunizations.

Thus, the difference in what the plaintiffs must show to

prove violations of the Due Process Clause and the Medicaid

statute is not relevant to certification of the proposed

injunction classes.

The majority concludes that vacatur of the Medicaid

subclass is required because Ninth Circuit cases hold that

“an error of law is a per se abuse of discretion.” Maj. op.

at 13. The majority reads too much into this language. The

majority, in effect, reads this language to mean that if a

district judge misstates any legal principle in the course of

stating its reasons for a discretionary decision, then the

appellate court has no choice but to vacate the decision and

remand for a do-over. But that cannot be what the language

means. Instead, the language must mean that when a district

court errs in its understanding of the legal standards that

govern its discretionary decision, the resulting discretionary

decision must be viewed as an abuse of discretion. But errors

of law that do not affect the district court’s discretionary

decision can be disregarded.

For example, if in this case the district court wrote that

the defendants could be liable under the Due Process Clause

if the plaintiffs proved that they were negligent, the court

would have misstated the law, for, under the Due Process

Clause, the defendants could be liable only if the plaintiffs

proved deliberate indifference. But this error of law would

not have affected the district court’s discretionary decision

B.K. V. SNYDER 43

to certify the class. That is so because the mental state for a

due-process violation is not an element that affects

commonality or any other class-certification requirement—

the defendant’s mental state is amenable to class-wide proof

regardless of whether it is negligence or deliberate

indifference. Thus, even if the district court identified the

wrong mental state during class certification, it would not

follow that the court abused its discretion in certifying a class

under the Due Process Clause. Of course, the district court

would commit reversible error if it later granted relief to the

class based on a negligence theory, but in that case, we

would reverse the judgment granting relief to the class—we

would not reverse the district court’s order certifying the

class.

The district court’s supposed legal error in this case is no

different than the district court’s legal error in my example.

Because the Medicaid subclass does not seek damages, it

does not matter to class certification that a Medicaid

violation does not occur until services are delayed or denied.

Thus, even if the district court thought that exposure to a risk

of not receiving services violates the Medicaid statute, it

would not have made an error of law that affected its

application of the Rule 23 standards to the facts of this case.

II.

The majority acknowledges that the district court

identified common questions that are “tethered to the

Medicaid Act in particular.” Maj. op. at 35. But the majority

then faults the district court for failing to make “further

findings” that clarify “whether [the challenged state-wide

policies and practices] caused the same deprivations of

services or risks of such deprivations across the whole

subclass, or whether some categories of children were

deprived of services while others were not.” Id. at 35. This

44 B.K. V. SNYDER

is a curious statement. The majority seems to be saying that

the district court failed to find that the challenged policies

expose all children in the Medicaid subclass to a substantial

risk of not receiving timely access to health care. But that

flatly contradicts the majority’s reasons for affirming the

district court’s certification of the General Class. There, the

majority found that the district court properly certified the

General Class because the question of whether the

defendants “fail[ed] to provide timely access to health

care”—and thus exposed all foster children to a substantial

risk of not receiving that health care—could be answered in

one stroke. Id. at 21. As I noted above, all members of the

proposed Medicaid subclass are also members of the General

Class, and the health care at issue in the claims of the General

Class are services required by the Medicaid statute. Thus, if,

as the majority concludes, the district court found that the

defendants’ policies and practices expose all children in the

General Class to a substantial risk of not receiving those

services, then it necessarily also found that those same

policies and practices expose all children in the Medicaid

subclass to a substantial risk of not receiving those services.

Therefore, the district court made the findings necessary to

support its decision to certify the Medicaid subclass.

The majority also expresses concern over whether the

district court made the findings necessary to support its

conclusion that B.K. is typical of those in the Medicaid

subclass. The majority states that the district court failed to

address “whether every other child had, like B.K., been

denied adequate medical care or was subject to an imminent

risk of a statutory violation.” Id. at 35 n.4. But whether other

children in the class had been denied adequate medical care

is irrelevant, since the class is not seeking to remedy past

violations. Moreover, “imminent risk of a statutory

violation” is a legal concept that governs standing, not class

B.K. V. SNYDER 45

certification. See, e.g., Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). The majority agrees that because

B.K. has standing to seek injunctive relief on behalf of the

Medicaid subclass, the standing inquiry ends there and there

is no need to separately consider whether each class member

has standing. Maj. op. at 16, 30. Thus, the majority again

contradicts its own reasoning when it faults this district court

for failing to make findings showing that every child in the

Medicaid subclass is at “imminent risk” of a Medicaid

violation.

I also struggle to discern how, in the majority’s view,

B.K.’s claim for injunctive relief could be “typical” of the

claims of all foster children in Arizona for purposes of the

Due Process Clause but not for purposes of the Medicaid

statute. Again, I emphasize that, under both the Due Process

Clause and the Medicaid statute, B.K. challenges the exact

same state-wide policies that create the exact same risk of

not receiving the exact same medical services. The only

difference is that, to obtain an injunction under the Medicaid

statute, B.K. does not have to prove deliberate indifference,

as she must to obtain an injunction under the Due Process

Clause. It is thus logically impossible for B.K.’s claim to be

typical of those in the class for purposes of the Due Process

Clause but not for purposes of the Medicaid statute.

III.

The majority agrees that “Rule 23’s commonality

requirement can be satisfied in a statutory case by a common

risk of a future violation that flows from the same state-wide

policy or practice.” Maj. op. at 36. In this case, the members

of the Medicaid subclass allege that they are subject to a

common risk of not receiving required Medicaid services

that flows from the same state-wide policies and practices,

including failing to hire enough caseworkers. Yet here the

46 B.K. V. SNYDER

majority reasons that we must vacate the district court’s

certification of the Medicaid subclass “because the district

court did not make factual findings or exercise its discretion

based on this understanding of commonality when it

certified the Medicaid subclass.” Maj. op. at 36–37.

I am not sure what the majority means when it says that

the district court did not “exercise its discretion based on this

understanding of commonality.” The district court exercised

its discretion to certify a subclass of all children who are

eligible for certain Medicaid services after finding that the

subclass’s claim presents a common question that can be

answered for all subclass members in one stroke. The

majority does not conclude that, in making this finding, the

district court erroneously applied Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338 (2011), or any other case on

commonality. Thus, the district court had a proper

“understanding of commonality” when it exercised its

discretion to certify this subclass.

Moreover, the district court actually made the findings

of fact necessary to support its finding of commonality for

the Medicaid subclass. The court found that the plaintiffs

were challenging “several statewide practices affecting the

proposed Medicaid Subclass,” including excessive

caseworker caseloads and failure to properly coordinate

services and monitor service providers. The court also found

that the validity of these practices could be determined in one

stroke and without making individualized inquiries into any

specific child’s medical diagnosis or treatment. Thus, the

district court correctly determined that the subclass could be

certified for purposes of seeking injunctive relief against the

challenged policies.

Although the majority correctly notes that the district

court did not expressly state that every subclass member is

B.K. V. SNYDER 47

subject to an identical “significant risk” of a future Medicaid

violation, this does not require that we vacate certification of

the subclass. Like “imminent risk,” “significant risk” is a

legal concept that governs standing, not class certification,

see Cent. Delta Water Agency v. United States, 306 F.3d

938, 949 (9th Cir. 2002), and the majority agrees that B.K.

has standing to seek injunctive relief against the challenged

state-wide policies under the Medicaid statute. The majority

expressly states that the district court correctly found that

B.K. has standing to seek injunctive relief against the

defendants’ policies because they expose her to a risk of not

receiving adequate medical care in the future. Maj op. 17.

Thus, the majority agrees that the district court made the

factual findings necessary to support standing.

As for class certification, there is no requirement that the

district court find that every subclass member is exposed to

an identical significant risk of a future Medicaid violation.

What the district court must find is that the plaintiffs’ claim

involves an allegation that all subclass members are exposed

to a risk of a future Medicaid violation, and that the truth of

this allegation can be decided for all subclass members in a

single stroke. See Parsons, 754 F.3d at 678 (identifying the

“common contentions” as “whether the specified statewide

policies and practices” to which the class members are all

subjected “expose them to a substantial risk of harm”).

Obviously, the defendants dispute that their policies are

deficient and will try to show during the merits phase of the

case that they properly care for all children and therefore

expose none of them to a substantial risk of not receiving

medical care. The plaintiffs do not have to prove, at the class-

certification stage, that the defendants’ policies are in fact

deficient. What the plaintiffs must do at class certification is

show that the question of whether the policies are deficient

can be resolved on a class-wide basis. And here, the district

48 B.K. V. SNYDER

court found that the plaintiffs did that. The court expressly

found that “[e]ven if health issues may differ, every child in

the [DCS] custody is necessarily subject to the same

medical, mental health, and dental care policies and

practices.” The court noted that “[a]ny one child could easily

fall ill, be injured, need treatment, require a diagnostic, need

emergency care, crack a tooth, or require mental health

treatment.” Thus, the district court found that “every single

child in the foster care system faces a substantial risk of

serious harm” if DCS policies fail to ensure the delivery of

appropriate medical care to children in the system.

It is true that the district court made the above findings

in the context of certifying the General Class. But to repeat:

every child in the Medicaid subclass is also a member of the

General Class, and both classes challenge the exact same

policies involving the exact same medical services. Thus, if

the challenged policies subject every child in the General

Class to a substantial risk of not receiving medical services,

they necessarily also subject every child in the Medicaid

subclass to a substantial risk of not receiving those services.

Therefore, the district court’s fact-finding supports its

certification of both the General Class and the Medicaid

subclass.

IV.

In sum, the district court concluded that the claims of the

Medicaid subclass involve common contentions that may be

resolved in one stroke: whether the challenged state-wide

policies and practices subject all subclass members to a

substantial risk of not receiving services required by the

Medicaid statute. In reaching this conclusion, the district

court did not err in applying the commonality standard, base

its conclusion on clearly erroneous findings of fact, or

otherwise abuse its discretion. Accordingly, I respectfully

B.K. V. SNYDER 49

dissent from the majority’s vacatur of the district court’s

certification of the Medicaid subclass.