Amicus Curiae Brief — Michael Faust, Director, Arizona Department of Child Safety, Petitioner v. B. K., By Her Next Friend Margaret Tinsley, et al.

No. 19-765

________________________________________

IN THE

Supreme Court of the United States

________________________

MICHAEL FAUST,

Petitioner,

v.

B.K., by her next friend Margaret Tinsley, et al.

Respondents.

________________________

On Petition for a Writ of Certiorari

To the Ninth Circuit Court of Appeals

________________________________________

BRIEF OF MISSOURI, ALASKA, ARKANSAS,

INDIANA, KANSAS, KENTUCKY, NEBRASKA,

OHIO, OKLAHOMA, SOUTH CAROLINA, SOUTH

DAKOTA, TEXAS, AND UTAH AS AMICI CURIAE

IN SUPPORT OF THE PETITION FOR

CERTIORARI

____________________________________________________________________

ERIC S. SCHMITT

Missouri Attorney General

D. JOHN SAUER

Solicitor General

Counsel of Record

PETER T. REED

Deputy Solicitor General

207 W. High Street

P. O. Box 899

Jefferson City, MO 65102

John.Sauer@ago.mo.gov

(573) 751-3321

[Additional Counsel Listed on Signature Page]

________________________________________

i

QUESTIONS PRESENTED

(1) Whether a putative class may satisfy the

commonality requirement of Rule 23(a)(2) by alleging

that a state-run system suffers from “systemwide

failures” to which every class member is “exposed”

simply by virtue of being in the system.

(2) Whether a putative class may invoke Rule

23(b)(2) to challenge alleged “systemwide failures” to

which every class member is “exposed” when the class

members have not suffered a common injury that

could be uniformly remedied by a single injunction.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES...................................... iii

INTRODUCTION AND INTEREST OF AMICI

CURIAE .......................................................................1

REASONS FOR GRANTING THE PETITION .........3

I. The circuits disagree about how Rule 23 applies

to claims of constitutionally inadequate medical care.

..............................................................................3

A. All members of a properly defined class

must have potentially viable claims, but the

Ninth Circuit held otherwise. .................................3

B. All members of a Rule 23(b)(2) class must

have sufficiently similar claims, but the Ninth

Circuit certified the class anyway. .........................7

II. These questions are important and recurring,

yet often force settlement before the certification

question reaches this Court. ..................................... 14

III.

The Ninth Circuit’s toothless certification test

implicates serious structural and federalism

concerns. .................................................................... 17

A. Overbroad class certification exceeds the

judiciary’s powers and impedes upon legislative

and executive prerogatives. .................................. 17

B. Overbroad class certification violates

principles of federalism by encroaching on core

state functions. ...................................................... 19

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

Cases

Adashunas v. Negley,

626 F.2d 600 (7th Cir. 1980) ...................................6

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ......................................... 3, 4, 6

Angela R. v. Clinton,

999 F.2d 320 (8th Cir. 1993) ................................. 18

Avritt v. Reliastar Life Ins. Co.,

615 F.3d 1023 (8th Cir. 2010) .................................5

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .................................................3

Connor B. ex rel. Vigurs v. Patrick,

774 F.3d 45 (1st Cir. 2014) .............................. 20, 21

Cty. of Sacramento v. Lewis,

523 U.S. 833 (1998) ........................................... 4, 12

Dandridge v. Williams,

397 U.S. 471 (1970) ............................................... 20

Denney v. Deutsche Bank AG,

443 F.3d 253 (2d Cir. 2006) .....................................5

Deposit Guar. Nat’l Bank, Jackson, Miss. v. Roper,

445 U.S. 326 (1980) ............................................... 14

Elizabeth M. v. Montenez,

458 F.3d 779 (8th Cir. 2006) ..................... 14, 20, 21

iv

Estelle v. Gamble,

429 U.S. 97 (1976) ...................................................4

Frew v. Hawkins,

540 U.S. 431 (2004) ............................................... 18

Glossip v. Gross,

135 S. Ct. 2726 (2015) .............................................4

Halvorson v. Auto-Owners Ins. Co.,

718 F.3d 773 (8th Cir. 2013) ...................................5

Hartsfield v. Colburn,

491 F.3d 394 (8th Cir. 2007) ................................. 11

Helling v. McKinney,

509 U.S. 25 (1993) ............................................... 4, 6

Horne v. Flores,

557 U.S. 433 (2009) ................................... 15, 18, 21

In re Asacol Antitrust Litig.,

907 F.3d 42 (1st Cir. 2018) ......................................5

In re Deepwater Horizon,

732 F.3d 326 (5th Cir. 2013) ............................... 5, 6

In re Deepwater Horizon,

739 F.3d 790 (5th Cir. 2014) ............................... 5, 6

In re Prudential Ins. Co. Am. Sales Practice Litig.

Agent Actions,

148 F.3d 283 (3d Cir. 1998) .....................................6

Jennings v. Rodriguez,

138 S. Ct. 830 (2018) ...............................................7

Kohen v. Pac. Inv. Mgmt. Co. LLC,

571 F.3d 672 (7th Cir. 2009) ...................................5

v

Kress v. CCA of Tennessee, LLC,

694 F.3d 890 (7th Cir. 2012) ................................. 11

Lewis v. Casey,

518 U.S. 343 (1996) ............................. 3, 6, 7, 11, 18

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ....................................... 3, 4, 17

M.B. v. Eggemeyer v. Corsi,

327 F.R.D. 271 (W.D. Mo. 2018) ........................... 16

M.D. by Stukenberg v. Abbott,

907 F.3d 237 (5th Cir. 2018) ................................. 12

M.D. ex rel. Stukenberg v. Perry,

675 F.3d 832 (5th Cir. 2012) ...................................9

Mazza v. Am. Honda Motor Co., Inc.,

666 F.3d 581 (9th Cir. 2012) ...................................6

Metro-North Commuter R. Co. v. Buckley,

521 U.S. 424 (1997) ............................................. 4, 6

Midwest Foster Care & Adoption Ass’n v. Kincade,

712 F.3d 1190 (8th Cir. 2013) ............................... 21

Missouri v. Jenkins,

515 U.S. 70 (1995) ........................................... 19, 21

Parsons v. Ryan,

754 F.3d 657 (9th Cir. 2014) ............... 1, 7, 8, 12, 13

Parsons v. Ryan,

784 F.3d 571 (9th Cir. 2015) ............. 8, 9, 11, 12, 16

Phillips v. Sheriff of Cook Cty.,

828 F.3d 541 (7th Cir. 2016) ................. 9, 10, 11, 13

vi

Postawko v. Mo. Dep’t of Corr.,

910 F.3d 1030 (8th Cir. 2018) .................................7

Postawko v. Mo. Dep’t of Corrs., No. 2:16-cv-04219NKL,

2017 WL 3185155 (W.D. Mo. July 26, 2017) ........ 16

Ragsdale v. Turnock,

941 F.2d 501 (7th Cir. 1991) ................................. 15

Rahman v. Chertoff,

530 F.3d 622 (7th Cir. 2008) ................................. 19

Raines v. Byrd,

521 U.S. 811 (1997) ............................................... 17

Rizzo v. Goode,

423 U.S. 362 (1976) ............................................... 19

Rouse v. Plantier,

182 F.3d 192 (3d Cir. 1999) ....................... 10, 11, 12

Stearns v. Ticketmaster Corp.,

655 F.3d 1013 (9th Cir. 2001) .................................5

Valley Forge Christian College v. Americans United

for Separation of Church and State,

454 U.S. 464 (1982) ............................................... 17

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ........................................... 7, 11

Whitmore v. Arkansas,

495 U.S. 149 (1990) ............................................. 3, 4

Yates v. Collier,

868 F.3d 354 (5th Cir. 2017) ............................... 7, 9

vii

Youngberg v. Romeo,

457 U.S. 307 (1982) ......................................... 19, 20

Other Authorities

Bursch & Corrigan, Rethinking Consent Decrees, Am.

Enter. Inst. (June 2016) ........................................ 17

Easterbrook, Justice and Contract in Consent

Judgments,

1987 U. CHI LEGAL FORUM 19 ......................... 18

Horowitz, Decreeing Organizational Change:

Judicial Supervision of Public Institutions,

1983 DUKE L.J. 1265 ............................................. 15

Marcus, The Public Interest Class Action,

104 GEO. L.J. 777 (2016) ................................. 16, 17

McConnell, Why Hold Elections? Using Consent

Decrees to Insulate Policies from Political Change,

1987 U. CHI LEGAL FORUM 295 ....................... 18

Sandler & Schoenbrod, Democracy by Decree: What

Happens When Courts Run Government

(2003) ..................................................................... 15

1

INTRODUCTION AND INTEREST OF AMICI

CURIAE 1

Just in the last few years, the Ninth Circuit has

certified class litigation on behalf of all 33,000

inmates in Arizona’s prison system, Parsons v. Ryan,

754 F.3d 657, 662 (9th Cir. 2014), and now on behalf

of all foster children who “are or will be” in the custody

of Arizona’s Department of Child Safety, Pet. App. 2.

Missouri and other amici routinely face similar class

litigation and have a significant interest in limiting

the damage and confusion caused by the Ninth

Circuit’s rulings granting near-automatic certification

in institutional-reform cases like this one.

The Ninth Circuit’s decisions conflict with two core

class-certification principles and deepen two

corresponding circuit splits. First, class actions do not

allow claimants to evade basic justiciability

principles. But the circuits disagree on whether a

class may be certified when, on its face, a putative

class contains members with no colorable claim.

Here, the Ninth Circuit certified a class where many

members have no constitutional injury at all. That

outcome simply cannot be reconciled with Article III’s

case-and-controversy requirement.

Second, all

members of a Rule 23(b)(2) class must have

sufficiently similar claims such that a State’s conduct

is either unlawful as to all class members or as to none

of them. The Ninth Circuit held that it is enough for

all class members to be subject to or exposed to the

same policies or practices. But many other circuits

have rejected certification of similar classes. Such

classes contain a wide range of dissimilar claims that

1 In compliance with Supreme Court Rule 37.2(a),

Missouri provided counsel of record with timely notice

of its intent to file this amicus brief.

2

cannot be decided together, from healthy, exposureonly plaintiffs with no cognizable injury, to those with

negligence claims, to those who may face a risk of

injury that falls short of the demanding due-process

standard.

Claims of constitutionally inadequate

medical care are particularly individualized—both as

to the imminence and substantiality of the injury, and

the deliberateness or conscious-shocking nature of the

alleged practice.

These errors matter because class certification

nearly always forces class-wide settlement in

institutional-reform cases. Sprawling class actions

place enormous pressure on state agencies with

limited budgets and resources. Class-wide discovery

and protracted litigation often consume the very

resources the State needs to help the populations the

litigation is meant to serve. Conversely, agencies

have strong incentives to offer favorable settlements,

which rewrite state budgets and reallocate scarce

resources by judicially blessed decree. This reality

reinforces the need for a certification test with teeth,

and underscores the need for this Court’s review in

this case, where the parties have not settled yet.

The Ninth Circuit’s rulings also raise grave

structural concerns. Apart from resolving actual

cases and controversies, the judiciary lacks both the

power and the tools to make sound budgetary and

executory decisions.

But institutional-reform

litigation is often meant precisely to sidestep elected

officials in the political branches in favor of a redo by

unelected judges. Sensitive federalism concerns are

at their height here as well. Overbroad class actions

improperly assume responsibility for the daily

operation of core state functions, dictate state policy

priorities (often creating strong disincentives for

States to help at-risk populations), and blindly shift

3

state resources away from other citizens and

governmental programs not represented in court.

This Court should grant review.

REASONS FOR GRANTING THE PETITION

I.

The circuits disagree about how Rule 23

applies to claims of constitutionally

inadequate medical care.

A. All members of a properly defined class

must have potentially viable claims, but

the Ninth Circuit held otherwise.

1. Class actions do not allow claimants to evade

basic justiciability principles.

“Rule 23’s

requirements must be interpreted in keeping with

Article III constraints, and with the Rules Enabling

Act, which instructs that rules of procedure ‘shall not

abridge, enlarge or modify any substantive right.’”

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613

(1997) (citation omitted). Whether “in individual or

class actions,” the “role of courts” is constitutionally

limited to providing relief to claimants “who have

suffered, or will imminently suffer, actual harm.”

Lewis v. Casey, 518 U.S. 343, 349 (1996). As in

individual cases, Article III standing requires an

injury-in-fact that is “imminent” and “certainly

impending.” Clapper v. Amnesty Int’l USA, 568 U.S.

398, 410-11 (2013); Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992).

As this Court has “emphasized repeatedly,” that

injury must be “concrete in both a qualitative and

temporal sense.” Whitmore v. Arkansas, 495 U.S. 149,

155 (1990) (emphasis added). While Anchem Products

decertified the class on other grounds, it strongly

suggested that it would have also lacked jurisdiction

over “exposure-only” members of the putative class,

even in suits raising traditional tort or statutory

4

claims. Amchem Prods., Inc., 521 U.S. at 613 n.15

(citing Metro-North Commuter R. Co. v. Buckley, 521

U.S. 424 (1997) (ruling that an “exposure-only”

railworker could not recover in light of common-law

principles)). Article III is “stretched beyond the

breaking point when . . . the plaintiff alleges only an

injury at some indefinite future time.” Lujan, 504

U.S. at 564 n.2; Whitmore, 495 U.S. at 158

(“Allegations of possible future injury do not satisfy

the requirements of Art. III.”).

This is more true, not less, when litigants assert

constitutionally inadequate medical care—claims

that set a high bar for qualitative and temporal

concreteness. Qualitatively, the medical harm must

be “deliberate” and “conscience shocking.” Cty. of

Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998)

(citation omitted); Estelle v. Gamble, 429 U.S. 97, 104

(1976) (“unnecessary and wanton infliction of pain”).

An allegation of mere “medical malpractice” does not

state a viable claim. Estelle, 429 U.S. at 106; Cty. of

Sacramento, 523 U.S. at 849 (“liability for negligently

inflicted harm is categorically beneath the threshold

of constitutional due process”). Temporally, the

Constitution requires “actual” and “serious” medical

harm. Helling v. McKinney, 509 U.S. 25, 32-33 (1993);

Estelle, 429 U.S. at 104. A risk of future harm

satisfies this standard only in limited circumstances:

when the future risk is “sure or very likely,” and the

future harm is “imminent.” Helling, 509 U.S. at 33;

see Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015).

2. The circuit courts disagree about what this

justiciability analysis should look like in the class

action context, leading to divergent outcomes.

Several circuits require that a class be defined

such that every member of the class has a potentially

viable claim. “In order for a class to be certified, each

5

member must have standing and show an injury in

fact that is traceable to the defendant and likely to be

redressed in a favorable decision.” Halvorson v. AutoOwners Ins. Co., 718 F.3d 773, 779 (8th Cir. 2013);

Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1034

(8th Cir. 2010) (holding that the class “must therefore

be defined in such a way that anyone within it would

have standing”) (citation omitted). This test was first

formulated by the Second Circuit: “[N]o class may be

certified that contains members lacking Article III

standing. . . . The class must therefore be defined in

such a way that anyone within it would have

standing.” Denney v. Deutsche Bank AG, 443 F.3d

253, 264 (2d Cir. 2006). This conclusion follows from

basic justiciability principles. “[I]ncluding claimants

in the class definition that lack colorable claims . . .

ignores the standing requirement of Article III and

creates a substantive right where none existed

before.” In re Deepwater Horizon, 732 F.3d 326, 341

(5th Cir. 2013) (“Deepwater I”). This approach is

called the Denney test.

Other circuits, including the Ninth Circuit at

times, refuse to look beyond the standing of the

named plaintiffs. See In re Asacol Antitrust Litig.,

907 F.3d 42, 56 (1st Cir. 2018) (noting “the divergence

evident in the manner in which our sister circuits

have addressed the treatment of uninjured putative

class members”); In re Deepwater Horizon, 739 F.3d

790, 800 (5th Cir. 2014) (“Deepwater II”) (outlining

“two analytical approaches” taken by the lower courts

to “evaluate standing for the purposes of class

certification”). These courts focus “exclusively on the

Article III standing of the ‘named plaintiffs’” and

“ignore the absent class members entirely.”

Deepwater II, 739 F.3d at 800 (citing Kohen v. Pac.

Inv. Mgmt. Co. LLC, 571 F.3d 672, 676-78 (7th Cir.

2009); Stearns v. Ticketmaster Corp., 655 F.3d 1013,

6

1020-21 (9th Cir. 2001)); In re Prudential Ins. Co. Am.

Sales Practice Litig. Agent Actions, 148 F.3d 283, 30607 (3d Cir. 1998). This is known as the Kohen test.

The Fifth, Seventh, and Ninth Circuits have

internal conflicts on this point. Each has followed

Denney in some cases, and Kohen in other cases. See

Deepwater II, 739 F.3d at 801-02 & n.28-30 (citing

Deepwater I, 732 F.3d at 341; Adashunas v. Negley,

626 F.2d 600, 603 (7th Cir. 1980); Mazza v. Am.

Honda Motor Co., Inc., 666 F.3d 581, 594 (9th Cir.

2012) as examples of cases following something more

like the Denney test).

This Court should grant review to resolve this

conflict of authority about the interplay of Article III

and class certification.

3. Here, the Ninth Circuit’s decisions fail to

grapple with the implications of this Court’s Article

III cases. A class should not be certified based merely

on the allegation that class members are exposed to

the possibility of constitutionally inadequate medical

services.

Exposure-only claimants fall short of

Article III’s case-or-controversy standard even as to

ordinary tort claims. See Amchem Prods., Inc., 521

U.S. at 613 n.15; Metro-North Commuter R. Co., 521

U.S. 424. They certainly fall short of Article III’s

requirements under the higher bar reserved for

constitutional claims of inadequate medical services.

Helling, 509 U.S. at 33. An allegation that a class is

“subject to” constitutionally “inadequate” medical

practices fails to state a claim. Lewis, 518 U.S. at

350. Such a class would improperly include “healthy”

class members who have “suffered no deprivation of

needed medical treatment.” Id.

Yet that is exactly what the Ninth Circuit did, both

in Parsons and again here. Parsons dismissed

7

concerns about the lack of a common injury because

all class members “have in common . . . their alleged

exposure” to defendant’s policies or practices. 754

F.3d at 678 (emphasis added). The panel in this case

held that, in a class action, only the named plaintiffs—

and not other putative class members—needed to

have standing. Pet. App. 11-13. Both cases ignore

Article III’s strictures and this Court’s opinion in

Lewis.

B. All members of a Rule 23(b)(2) class must

have sufficiently similar claims, but the

Ninth Circuit certified the class anyway.

1. In a Rule 23(b)(2) case, all class members must

also have sufficiently similar claims. As this Court

reaffirmed in Wal-Mart v. Dukes: ‘“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 Stores, Inc. v. Dukes, 564

U.S. 338, 360 (2011) (emphasis added; citation

omitted); see also Jennings v. Rodriguez, 138 S. Ct.

830, 852 (2018) (noting that if “some members of the

certified class may not be entitled to [relief] as a

constitutional matter . . . then it may no longer be true

that the complained-of conduct is such that it can be

enjoined or declared unlawful as to all class members

or as to none of them”) (citation omitted).

Many appellate decisions, all citing Dukes, have

acknowledged this all-or-none principle. See, e.g.,

Postawko v. Mo. Dep’t of Corr., 910 F.3d 1030, 1039

(8th Cir. 2018); Yates v. Collier, 868 F.3d 354, 362-63

(5th Cir. 2017). Even the Ninth Circuit’s cases pay it

lip service. See Pet. App. 20; Parsons, 754 F.3d at 678

(arguing that “each of the policies and practices is

8

unlawful as to every inmate or it is not”).

2. But the circuit courts disagree about how this

all-or-none standard applies in practice, leading to

different outcomes. The Ninth Circuit, for example,

affirmed certification of a class that included all

33,000 inmates in Arizona’s prison system. Parsons,

754 F.3d 657. These inmates were all “subject to”

fifteen different alleged policies or practices ranging

from delayed medical care, to inadequate medication

for mental health patients, to substandard dental

care. Id. at 665. Parsons held that commonality “does

not require us to determine the effect of those policies

and practices upon any individual class member (or

class members) or to undertake any other kind of

individualized determination.” Id. at 678. “[E]very

inmate” was “subject to” the “same . . . policies.” Id.

No other showing was required. “[E]ither each of the

policies and practices is unlawful as to every inmate

or it is not.” Id.

This analysis guts Dukes’ all-or-none standard, as

noted by the six-judge dissent from denial of rehearing

en banc in Parsons. Parsons v. Ryan, 784 F.3d 571,

573 (9th Cir. 2015) (Ikuta, J. dissenting) (“Parsons

II”). Rule 23 requires finding “a similar substantial

risk of serious harm.” Id. (emphasis added). Far from

showing a similar risk, the record showed “a diverse

group of prisoners with different health conditions

and needs who require different levels of medical

care.” Id. The panel erred by certifying “this diverse

class,” because “not all members of the Class have an

Eighth Amendment claim, let alone a common claim.”

Id. Allegations of “[e]xposure” to inadequate policies,

id., of “attenuated” risks of harm, id. at 577, and of

medical malpractice, id. at 578, do not state Eighth

Amendment claims.

Thus, even among “those

prisoners who are not healthy,” many will have no

9

Eighth Amendment claim, and Rule 23 requires proof

of “sufficiently similar serious medical needs.” Id. at

579.

The Fifth Circuit’s cases agree with Judge Ikuta’s

dissent. To satisfy Rule 23 in the Fifth Circuit, the

‘“class members must have been harmed in

essentially the same way.’” M.D. ex rel. Stukenberg v.

Perry, 675 F.3d 832, 845 (5th Cir. 2012) (citation

omitted). To show essentially the same injury, the

class must prove ‘“that even the youngest, healthiest,

and most acclimatized inmates face a substantial

threat of serious harm despite’” existing practices.

Yates, 868 F.3d at 358 (citation omitted). In Yates,

that standard was satisfied. The putative class

alleged extreme heat levels in prison buildings, and

proved the similarity of risk by presented expert

testimony that existing policies “were ineffective to

reduce the risk of serious harm to a constitutionally

permissible level for any inmate, including the

healthy inmates.” Id. In Stukenberg, the standard

was not met. A class containing all foster children in

Texas ‘“stretch[ed]” class certification beyond

recognition “by attempting to aggregate several

amorphous claims of systemic or widespread conduct

into one ‘super-claim.’” 675 F.3d at 844 (citation

omitted). Such amorphous claims did not even

establish commonality—let alone satisfy Rule

23(b)(2)’s more rigorous standard—because they could

not be resolved “in one stroke.” Id.

Similarly, the Seventh Circuit has held that

allegations of delays in medical treatment typically

are not common to a class. Phillips v. Sheriff of Cook

Cty., 828 F.3d 541 (7th Cir. 2016).

“[T]he

constitutionality of a wait for medical treatment”

depends on “individual circumstances” and so can

“only be answered by looking at the unique facts of

10

each detainee’s case.” Id. at 555-56. Plaintiffs had not

shown “a policy or practice which rises to the level of

a systemic indifference” classwide. Id. at 557 (noting

such a class might be possible with proof of more

“consistent” and “egregious” delays). Because “[s]ome

of the alleged delays . . . ‘may constitute deliberate

indifference’” but not all of them, determining which

class members had claims ‘“depend[ed] on the facts of

the individual case.’” Id. at 558 (citation omitted).

The Third Circuit has also held that a class of

prisoners with diverse medical needs do not present

the same claim. Rouse v. Plantier, 182 F.3d 192 (3d

Cir. 1999) (Alito, J.). In Rouse, a class of all prisoners

who were insulin-dependent diabetics alleged

deliberate indifference. The Court started with Lewis

and Estelle: deliberate indifference “obviously varies

depending on the medical needs of the particularly

prisoner” yet “the plaintiff class is a medically diverse

group.” Id. The evidence showed that “not all insulindependent diabetic plaintiffs require the same level of

medical care.” Those with “unstable” blood sugar

levels required more “intensive medical treatment”

than those with “stable” blood sugar levels. Id. at

198. Thus, “it is possible that conduct that violates

the Eighth Amendment rights of the unstable

plaintiffs may not violate the constitutional rights of

the stable plaintiffs.” Id. “In light of the diverse

medical needs of, and the different levels of care”

required by, class members, the district court erred in

holding that “all members of the plaintiff class”

alleged the same injury. Id.

These cases present clear conflicts on the

requirements for Rule 23(b)(2) classes. “Where the

Third Circuit held that it was error to conclude ‘on a

wholesale basis’ that different types of diabetic

prisoners had ‘alleged a violation of their Eighth

11

Amendment rights,’” the Ninth Circuit “holds that the

district court correctly aggregated the Eighth

Amendment claims of all prisoners in [Arizona], in all

their medical diversity, on the basis of a general claim

of deliberate indifference.” Parsons II, 784 F.3d at

580. And where the Ninth Circuit has twice held that

claims of delayed medical treatment could be litigated

under Rule 23(b)(2), see Pet. App. 17, the Seventh

Circuit in Phillips said they could not. The Court

should grant review to resolve these divergent

outcomes.

3.

Dukes’ all-or-none principle should make

certification more difficult in class actions alleging

constitutionally inadequate medical care. As many

circuits recognize, such claims ‘“by their nature

require individual determinations.’” Kress v. CCA of

Tennessee, LLC, 694 F.3d 890, 893 (7th Cir. 2012)

(citation omitted). The constitutional right at issue “is

one that obviously varies depending on the medical

needs of the particular” individual. Rouse, 182 F.3d

at 199; Hartsfield v. Colburn, 491 F.3d 394, 397 (8th

Cir. 2007). The Ninth Circuit’s cases do not faithfully

apply Rule 23(b)(2).

Needless to say, a class that contains some

members with potentially viable claims, and some

members without potentially viable claims, fails to

satisfy Rule 23(b)(2). Those simply “subject to” a

policy or practice do not have a claim at all, Lewis, 518

U.S. at 350, and thus they do not have the “same

injury,” Dukes, 564 at 350, as those alleging concrete

medical harm. Thus, it is emphatically not true that

injunctive relief can only be granted as to all or as to

none of such a class.

But it is not just healthy class members who lack

a colorable constitutional claim. Parsons II, 784 F.3d

at 573, 579 (Ikuta, J. dissenting). Allegations of

12

“[e]xposure” to inadequate policies, id., of

“attenuated” risks of harm, id. at 577, and of medical

malpractice, id. at 578, do not state constitutional

claims either. Even among a class made up only of

those “who are not healthy,” many will have no

potentially viable constitutional claim. Id. at 579.

“The Fourteenth Amendment is not a ‘font of tort law

to be superimposed upon whatever systems may

already be administered by the States.’” Cty. of

Sacramento, 523 U.S. at 848 (citation omitted).

Even among those with potentially viable claims,

Rule 23(b)(2) demands a shared degree of risk and

imminence of future harm. Parsons II, 784 F.3d at

573, 579. The degree and imminence of the harm will

often vary by individual. Rouse, 182 F.3d at 199. For

example, “the question of whether a particular policy

or practice causes a constitutional violation

necessarily depends on context—i.e., how that policy

or practice is interacting with other . . . conditions.”

M.D. by Stukenberg v. Abbott, 907 F.3d 237, 254 (5th

Cir. 2018). The same policy that “could amount to a

constitutional violation” in one environment may not

be a constitutional violation in another. Id. This bars

certification of a Rule 23(b)(2) class: defendant’s

conduct cannot be enjoined only as to all or none of the

class.

The Ninth Circuit’s decisions ignore all of this.

Again, Parsons upheld certification of the statewide

class of Arizona inmates because the Court concluded

that there was a substantial question whether “they

are all subjected” to “a substantial risk of harm,” such

that “each of the policies and practices is unlawful as

to every inmate or it is not.” Parsons, 754 F.3d 678.

Parsons erred, however, because it applied far too

permissive a standard in scrutinizing whether every

single inmate in Arizona facilities had a potentially

13

valid constitutional claim.

At the time of the

certification decision in Parsons, literally thousands of

strong, healthy Arizona inmates faced no “imminent”

risk of harm that was “sure or very likely” to occur.

Id.

The Ninth Circuit took the same mistaken

approach in this case. Plaintiffs do not even allege

that every class member has suffered an injury—

indeed, the class likely contains many members with

no unmet physical or mental health needs at all—but

the court dismissed these concerns. Pet. App. 22. At

the very least, the diverse array of allegedly deficient

policies guarantees that putative class members lack

similar injuries: those allegedly harmed by policies

governing sibling placement, for example, have

different injuries than those allegedly harmed by

policies governing mental health care. Pet. App. 17.

An injunction reforming sibling-placement policies

does little to resolve the claims of those alleging

deficient mental care. Id. The nature of the claims

also requires individualized analysis. For example,

the constitutionality of wait times for medical care,

id., is an inherently individualized inquiry that can

“only be answered by looking at the unique facts of

each [individual’s] case,” Phillips, 828 F.3d at 555-56.

The result is the certification of a class that

includes large numbers of plaintiffs who not only lack

similar claims, but also lack standing to sue

altogether—a

situation

which

raises

grave

constitutional concerns under Article III and ignores

this Court’s Rule 23(b)(2) precedents.

14

II. These questions are important and

recurring, yet often force settlement before

the certification question reaches this

Court.

In practice, a virtually automatic class

certification standard like that applied by the Ninth

Circuit almost always leads to settlement—

particularly in institutional-reform cases. This reality

reinforces the need for a certification test with teeth,

and underscores the need for this Court’s review in

this case, where the parties have not settled yet.

A. Class certification rulings often play a

disproportionate role in determining the outcome of

class litigation. Deposit Guar. Nat’l Bank, Jackson,

Miss. v. Roper, 445 U.S. 326, 339 (1980) (“A district

court’s ruling on the certification issue is often the

most significant decision rendered in these classaction proceedings.”). Nowhere is this truer than in

institutional reform cases. These cases can place

enormous pressure on state agencies with limited

budgets and resources. The burdens of prolonged

litigation and classwide discovery can overwhelm

these agencies, and these burdens can detract from

their ability to pursue their missions of providing

public benefits and enforcing state law in the interest

of the public good. Thus, for state agencies as for

private parties, “an order granting class certification

‘may force a defendant to settle rather than incur the

costs of defending a class action and run the risk of

potentially ruinous liability.’”

Elizabeth M. v.

Montenez, 458 F.3d 779, 784 (8th Cir. 2006) (quoting

Advisory Committee Notes to 1998 Amendments

adopting Rule 23(f)). Because of this pressure,

settlement after an adverse class-certification

decision is extremely common.

15

Institutional-reform litigation is also particularly

susceptible to settlement because often both parties

have powerful incentives to enter into a consent

decree. See Horne v. Flores, 557 U.S. 433, 448-49

(2009). Such cases allow state agency defendants to

bypass the legislature and expand their budgets

through the judiciary. Ragsdale v. Turnock, 941 F.2d

501, 517 (7th Cir. 1991) (Flaum, J., concurring in part

and dissenting in part) (“[I]t is not uncommon for

consent decrees to be entered into on terms favorable

to those challenging governmental action because of

rifts within the bureaucracy or between the executive

and legislative branches”). This means that, in

practice, defendants in institutional reform cases ‘“are

sometimes happy to be sued and happier still to lose.’”

Horne, 557 U.S. at 448-49 (quoting Horowitz,

Decreeing

Organizational

Change:

Judicial

Supervision of Public Institutions, 1983 DUKE L.J.

1265, 1294–1295). State agencies can expand their

services and budgets through judicially blessed

settlements. Id. (“Government officials, who always

operate under fiscal and political constraints,

‘frequently win by losing’ ” in institutional reform

litigation”) (quoting Sandler & Schoenbrod,

Democracy by Decree: What Happens When Courts

Run Government 170 (2003)).

In other words, institutional-reform litigation

consumes already scarce resources, while settling

such litigation often generates new resources. It is no

wonder, then, that class certification often leads to

settlement, regardless of the merits.

B. These concerns underscore the need for the

Court to grant review in this case. Once the district

court certifies a Rule 23(b)(2) class, high litigation

costs and invasive discovery create enormous

pressure for Missouri, Arizona, and other government

16

entities to settle before the appellate process plays

out, and certainly before the case reaches this Court.

Parsons followed this pattern. The Ninth Circuit

affirmed the certification of a class including every

one of the 33,000 prisoners in Arizona prisons.

Parsons II, 784 F.3d at 573. The case settled within

days, even before the Ninth Circuit issued its

mandate. Id. at 572 n.1. The proposed settlement

demanded Arizona comply with a sprawling list of 103

different performance measures. Doc. 1185, Parsons

v. Ryan, No. cv-12-0601 (D. Ariz. 2015). The district

court continues to assert federal oversight of Arizona’s

prison system to this day. Doc. 2898, Parsons v. Ryan,

No. cv-12-0601 (D. Ariz. 2018).

Missouri’s recent experience is similar. A district

court in Missouri certified a broad class of prisoners,

relying heavily on the Ninth Circuit’s decision in

Parsons. See Postawko v. Mo. Dep’t of Corrs., No. 2:16cv-04219-NKL, 2017 WL 3185155, *6-8 (W.D. Mo.

July 26, 2017) (citing Parsons for the proposition that

mere exposure to a common policy or practice is

sufficient to certify a Rule 23(b)(2) class). A year later,

the same court certified a broad class containing most

of the children in Missouri’s foster care system, and

again relied heavily on Parsons.

See M.B. v.

Eggemeyer v. Corsi, 327 F.R.D. 271, 280 (W.D. Mo.

2018). That case settled before the appellate panel

issued its opinion reviewing the certification decision

under Rule 23(f).

Even before Parsons, plaintiffs sought certification

of a class containing over 10,000 foster children in

Oklahoma. Marcus, The Public Interest Class Action,

104 GEO. L.J. 777, 786 (2016) (discussing D.G. ex rel.

Stricklin v. Henry, No. 4:08-cv-00074-GKF-FHM

(N.D. Okla. Feb. 13, 2008)). The district court

certified the class, and Oklahoma was forced into a

17

$100 million settlement. Id. at 789 & n.89. A study

in 2000 showed dozens of similar consent decrees just

in child-welfare institutional-reform cases, and an

updated list shows many more since then. See Bursch

& Corrigan, Rethinking Consent Decrees, Am. Enter.

Inst. at 6, 20-21 (June 2016).

As these examples show, overbroad certification

decisions often lead to class settlement in

institutional-reform cases, and settlement means the

class certification decision never reaches this Court.

III. The Ninth Circuit’s toothless certification

test implicates serious structural and

federalism concerns.

The Court should also grant review because the

Ninth Circuit’s toothless certification test implicates

sensitive structural and federalism concerns.

A. Overbroad class certification exceeds

the judiciary’s powers and impedes upon

legislative and executive prerogatives.

The judiciary’s powers are limited to actual cases

and controversies for a reason. ‘“[T]he law of Art. III

standing is built on a single basic idea—the idea of

separation of powers.’” Raines v. Byrd, 521 U.S. 811,

820 (1997) (citation omitted). Article III requires a

temporally concrete injury precisely because the

requirement “confines the Judicial Branch to its

proper, limited role in the constitutional framework of

government.” Lujan, 504 U.S. at 581 (Kennedy, J.,

concurring in part and in the judgment). This balance

of powers does not change based on perceived exigency

or need for reform. Valley Forge Christian College v.

Americans United for Separation of Church and State,

454 U.S. 464, 476 n. 13 (1982) (“‘[T]he Art. III power

of the federal courts does not wax and wane in

18

harmony with a litigant's desire for a ‘hospitable

forum.’”) (citation omitted).

“The Constitution

charges federal judges with deciding cases and

controversies, not with running state [agencies].”

Lewis, 518 U.S. at 364 (Thomas, J., concurring).

The Constitution rightly vests budgetary and

executory responsibilities only in the political

branches. “Yet, too frequently, federal district courts

in the name of the Constitution effect wholesale

takeovers of state [agencies] and run them by judicial

decree.” Id. “[I]t is not the role of courts, but that of

the political branches, to shape the institutions of

government in such fashion as to comply with the laws

and the Constitution.” Id. at 349 (majority op.). In

fact, class actions like this one are often used precisely

to ‘“sidestep political constraints’” and “‘block

ordinary avenues of political change.’” Horne, 557

U.S. at 448-49 (quoting McConnell, Why Hold

Elections? Using Consent Decrees to Insulate Policies

from Political Change, 1987 U. CHI. LEGAL FORUM

295, 317). Even where such change is consistent with

the goals of those currently holding political offices,

overbroad judicially driven reform may “improperly

deprive future officials of their designated legislative

and executive powers.” Frew v. Hawkins, 540 U.S.

431, 441 (2004). Ordinary legislative avenues of

political change protect against this. See Easterbrook,

Justice and Contract in Consent Judgments, 1987 U.

CHI. LEGAL FORUM 19, 40 (1987) (“Tomorrow’s

officeholder may conclude that today’s is wrong, and

there is no reason why embedding the regulation in a

consent

decree

should

immunize

it

from

reexamination”).

Unsurprisingly, courts are also poorly equipped to

exercise legislative and executive functions. See

Angela R. v. Clinton, 999 F.2d 320, 326 (8th Cir. 1993)

19

(“Federal courts operate according to institutional

rules and procedures that are poorly suited to the

management of state agencies.”). “Federal courts do

not possess the capabilities of state and local

governments in addressing difficult . . . problems. . . .

Federal courts simply cannot gather sufficient

information to render an effective decree, have limited

resources to induce compliance, and cannot seek

political and public support for their remedies.”

Missouri v. Jenkins, 515 U.S. 70, 131-32 (1995)

(Thomas, J., concurring). And even if the judiciary

had such resources, “there certainly is no reason to

think judges or juries are better qualified than

appropriate professionals in making such decisions.”

Youngberg v. Romeo, 457 U.S. 307, 323 (1982).

To be sure, courts should decide the cases and

controversies before them. But an artificial expansion

of Rule 23 to encompasses classes like the one at issue

in this case go beyond the courts’ Article III powers

and beyond the Rules Enabling Act. “If this seems a

modest vision of the judiciary’s role, we answer that

modesty is the best posture for the branch that . . .

lacks the full kit of tools possessed by the legislative

and executive branches.” Rahman v. Chertoff, 530

F.3d 622, 627–28 (7th Cir. 2008) (Easterbrook, J.).

B. Overbroad class certification violates

principles of federalism by encroaching

on core state functions.

Overbroad class actions against state agencies also

raise grave federalism concerns. “Where, as here, the

exercise of authority by state officials is attacked,

federal courts must be constantly mindful of the

‘special delicacy of the adjustment to be preserved

between federal equitable power and State

administration of its own law.’” Rizzo v. Goode, 423

20

U.S. 362, 378 (1976) (citation omitted). “[T]his

concern [for federalism] is heightened in the class

action context because of the likelihood that an order

granting class certification ‘may force a defendant to

settle rather than incur the costs of defending a class

action and run the risk of potentially ruinous

liability.’” Elizabeth M., 458 F.3d at 784 (citation

omitted). These concerns are heightened in three

ways.

First, overbroad class actions interfere with the

daily operation of core state functions. “By certifying

a single class action to litigate this broad array of

claims and prayers for relief, the district court has

essentially conferred on itself jurisdiction to assert

control over the operation of . . . a major component of

Nebraska [or Arizona] state government. A federal

court may not lightly assume this power.” Elizabeth

M., 458 F.3d at 784. Careful class-certification

decisions are necessary to minimize “interference by

the federal judiciary with the internal operations of

[state] institutions.” Youngberg, 457 U.S. at 322.

Second, overbroad class actions threaten to dictate

state policy priorities. States voluntarily undertake

difficult tasks—like running a foster care system—

that do not guarantee perfect outcomes. In carrying

out those tasks, a State ‘“necessarily has considerable

discretion in determining the nature and scope of its

responsibilities,’ including discretion in choosing

among aspects of a problem to approach at a given

time.” Connor B. ex rel. Vigurs v. Patrick, 774 F.3d 45,

53 (1st Cir. 2014) (quoting Youngberg, 457 U.S. at

317). A State is not required to “choose between

attacking every aspect of a problem or not attacking

the problem at all.” Dandridge v. Williams, 397 U.S.

471, 487 (1970). So “it is not appropriate for the courts

to specify which of several professionally acceptable

21

choices should have been made.” Connor B., 774 F.3d

at 54 (citation omitted).

Third, sensitive federalism concerns are also

“heightened when, as in these cases, a federal court

decree has the effect of dictating state or local budget

priorities.” Horne, 557 U.S. at 448; Midwest Foster

Care & Adoption Ass’n v. Kincade, 712 F.3d 1190,

1196 (8th Cir. 2013) (noting federalism concerns

regarding a request “to increase appropriations to the

State’s foster care program”). “A structural reform

decree eviscerates a State’s discretionary authority

over its own program and budgets and forces state

officials to reallocate state resources and funds . . . at

the expense of other citizens, other government

programs, and other institutions not represent in

court.”

Jenkins, 515 U.S. at 131 (Thomas, J.,

concurring).

Applying a “rigorous analysis” to claims of

constitutional injury within a putative class will

properly safeguard these federalism concerns. Where

every class member faces a similar constitutionally

intolerable risk of injury that is “imminent” and “sure

or very likely to occur,” class certification under Rule

23(b)(2) may be proper, assuming other requisites of

Rule 23 are met. But where, as here, many class

member lack any imminent, certainly impending

injury of constitutional dimensions—but instead face

injuries that are merely possible or conjectural—a

federal court should not arrogate to itself the

authority to dictate state policymaking under the

aegis of class certification. This authority to dictate

state policy priorities “should not be lightly assumed.”

Elizabeth M., 458 F.3d at 784.

CONCLUSION

The Court should grant the writ of certiorari.

22

Respectfully submitted,

ERIC S. SCHMITT

Attorney General

D. JOHN SAUER

Solicitor General

Counsel of Record

PETER T. REED

Deputy Solicitor General

OFFICE OF THE MISSOURI

ATTORNEY GENERAL

P. O. Box 899

Jefferson City, MO 65102

John.Sauer@ago.mo.gov

(314) 340-7960

Attorneys for Amici Curiae

January 10, 2020

23

ADDITIONAL COUNSEL

KEVIN G. CLARKSON

Attorney General of

Alaska

DAVID YOST

Attorney General of Ohio

LESLIE RUTLEDGE

Attorney General of

Arkansas

MICHAEL HUNTER

Attorney General of

Oklahoma

CURTIS T. HILL, JR.

Attorney General of

Indiana

ALAN WILSON

Attorney General of

South Carolina

DEREK SCHMIDT

Attorney General of

Kansas

JASON R. RAVNSBORG

Attorney General of

South Dakota

DANIEL CAMERON

Attorney General of

Kentucky

KEN PAXTON

Attorney General of

Texas

DOUGLAS J. PETERSON

Attorney General of

Nebraska

SEAN D. REYES

Attorney General of Utah