Third Circuit Rules Plaintiff Must Have “a fair opportunity” to move for class cert
Jocelyn D. Larkin, Executive Director, The Impact Fund
Good news for plaintiffs in a Third Circuit decision on mootness in a Rule 23(b)(2) injunctive relief class action, Richardson v. Bledsoe, No. 15-2876 (3d Cir. July 15, 2016). This case presents a variation of the Campbell-Ewald named plaintiff pick-off strategy in a systemic reform case. It recognizes a “picking off” exception to mootness in a class action where the individual claim for relief is “acutely susceptible to mootness” by the actions of the defendant. This one takes a bit of explaining.
Plaintiff Richardson is a former inmate of the federal prison in Lewisburg, PA. He brought an individual claim challenging his treatment in the prison’s Special Management Unit, which housed inmates with special security concerns. He subsequently amended his complaint to allege a pattern of treatment, to add class allegations as well as a request for class-wide injunctive relief, in addition to individual monetary damages. The defendants promptly brought a motion to dismiss, arguing that the class could not be certified under Rule 23, essentially teeing up class certification right out of the box. The district court dismissed the class allegations, finding that the class was not objectively “ascertainable.” The Third Circuit allowed the plaintiff to bring an interlocutory appeal of that order, which was effectively a denial of class certification.
By now, you might be thinking that this case is about the Third Circuit’s much-criticized ascertainability requirement from Carrera v. Bayer. But, no. While the appeal was pending, the Third Circuit ruled in Shelton v. Bledsoe, another prison class action, that the ascertainability requirement did not apply to a Rule 23(b)(2) injunctive class action. Appeal over? Not yet.
The government quickly shifted gears in Richardson to argue instead that the plaintiff’s individual injunctive relief claims were moot because, when the district court ruled, he was no longer in the Special Management Unit. And, since his individual claims were moot, he did not have standing to represent the class. The class claims were moot, according to the government, because plaintiff had not affirmatively moved for class certification before he was transferred out of the unit (and the prison).
The panel (J. Smith, J. Hardiman, J. Nygaard) concluded that the Circuit’s earlier decision in Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004), created a “picking off” exception to mootness in a class action where the individual claim for relief is “acutely susceptible to mootness” by the actions of the defendant. This exception would permit a claim for relief to relate back to the date that the plaintiff filed the class action complaint, not just to the date of the class certification decision. The panel found doctrinal support for the exception in older cases regarding Social Security disability claims including White v. Mathews, 559 F.2d 852, 857 (2d Cir. 1977) and Blankenship v. Secretary of HEW, 587 F.2d 329 (6th Cir. 1978). This “pick off” exception to mootness in class actions would, the court noted, avoid the useless practice of placeholder motions for class certification. But, the panel found that the Weiss exception required that the plaintiff move for certification without “undue delay.”
So, wait, where does the Supreme Court’s ruling in Campbell-Ewald v. Gomez from last term fit in? In Campbell-Ewald, the Court had concluded that the individual claim was not moot because the unaccepted Rule 68 offer did not deprive the plaintiff of his claim. The Third Circuit recognized, in contrast, that Richardson’s individual injunctive relief claim was moot but, as noted, subject to the Weiss “picking off” exception (which it conceded was not addressed by the Supreme Court in Campbell-Ewald). But, the panel cited the language in Campbell-Ewald that observed “a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” So, had Richardson had “a fair opportunity” to move for class certification or had there been an “undue delay” in moving for class cert?
Richardson was moved out of the unit six weeks after he filed the amended complaint (too short to file a class cert motion) BUT had never moved for class certification – was that “undue delay?” Recall that defendants filed a motion to dismiss, alleging that the case could not satisfy Rule 23, shortly after the amended complaint was filed. Their motion “put the issue of class certification squarely before the District Court” and was the basis for the denial of class certification. Thus, defendants’ motion ensured that there was no “undue delay” finding against the plaintiff. The court concluded that Richardson’s claims related back to the filing of the complaint and that he may continue to seek certification and to serve as a class rep.