In its recent opinion in Shelton v. Bledsoe, -- F.3d --, 2015 WL 74192 (3d. Cir. Jan. 7, 2015), the Third Circuit held that the implied requirement of “ascertainability” –i.e., that the constituent members of a class be readily identifiable in order for the class to be certified – does not apply to class actions brought under Rule 23(b)(2) seeking declaratory or injunctive relief. That decision not only affects the burden imposed on plaintiffs seeking certification of this class, it also reveals important assumptions about the limits on the appropriate scope of Rule 23(b)(2) class actions.

Shelton was brought on behalf of a class of prisoners housed in a special management unit in the U.S. Penitentiary at Lewisburg, PA.  The plaintiffs alleged that the prison’s cellmate assignment system improperly assigned inmates who were known to be hostile to each other or have prior incidents of violence between them to share cells.  The district court denied certification.  But instead of relying on the express requirements of Rule 23, the district court focused on the lack of ascertainability for the proposed class. 

The Third Circuit reversed, holding that ascertainability was not required for a class seeking only injunctive or declaratory relief, in contrast to a class seeking money damages under Rule 23(b)(3).  The Third Circuit explained that ascertainability, though not expressly mentioned in Rule 23, is a necessary implied requirement that the members of the class be readily identifiable at the moment of certification.  The court explained ascertainability as different than the requirement of a clear class definition – it necessitated that the class members be readily able to be identified based on objective criteria without extensive individualized fact-finding. 

However, answering a question of first impression in that circuit, the court perceived this requirement to be unique to Rule 23(b)(3) classes, which provide different procedural safeguards – such as notice and opt out requirements – than Rule 23(b)(2) classes.  The court explained that the nature of the relief sought in (b)(2) classes is such that conduct can be enjoined or declared unlawful only as to all of the class members or none of them, and thus truly flowed to the class as a whole, making it unnecessary to be able to identify individual class members. 

The Shelton opinion is also significant because of the assumptions it reveals about the limited scope of (b)(2) class actions.   The court’s analysis implicitly presumes that such class actions seek only unitary injunctions or declarations that issue undifferentiated commands about the defendant’s conduct to the class as a whole, as opposed to injunctions or declarations that require certain acts to be taken toward individual class members who would have to be identified individually at some point.  In the court’s mind, the relief sought in Shelton was seemingly a very traditional structural reform-type remedy declaring a generally applicable policy to be unconstitutional. In such cases, knowing the identities of specific plaintiffs may never be necessary. 

It is less clear how the court’s analysis would apply to a putative (b)(2) class that seeks relief  which is nominally declaratory or injunctive in nature, but that in practice more closely resembles the kind of relief that would be sought in a (b)(3) class action, such as a class seeking a “declaration” that a product is defective or unreasonably dangerous, which would later be converted into a money judgment in individualized product liability tort suits, or an injunction requiring establishment of a refund system for fraudulently marketed products.  In those kinds of cases, the circumstances and identifies of individual class members may be very significant.  One might conclude that the reason these types of class actions did not trouble the court is because they do not fall within the Third Circuit’s conception of the appropriate scope of (b)(2) class actions because the relief sought, while declaratory or injunctive, is still individualized.  The court’s opinion hints at this point by reminding us that there is an implicit “cohesiveness” requirement to Rule 23(b)(2).  Thus, while the Shelton opinion may lessen the burden on plaintiffs to prove ascertainability in Rule 23(b)(2) class actions, it may nonetheless have counterbalanced that move by signaling a relatively narrow conception of the proper scope of Rule 23(b)(2).