FILED

United States Court of Appeals

Tenth Circuit

February 8, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

DG, by Next Friend G. Gail Stricklin;

CS, by Next Friend Barbara Sears; JB,

by Next Friend Buddy Faye Foster;

AP, by Next Friend Leslie A. Ellis

Kissinger; JA, by Next Friend Buddy

Faye Foster; JP, by Next Friend G.

Gail Stricklin; RJ, by Next Friend Paul

Naylor; GC, by Next Friend Anne

Sublett; KT, by Next Friend Barbara

Sears, for themselves and those

similarly situated,

Plaintiffs-Appellees,

v. No. 09-5093

RICHARD L. DEVAUGHN, in his

official capacity as Chairman of the

Oklahoma Commission for Human

Services; RONALD L. MERCER, in

his official capacity as Vice-Chairman

of the Oklahoma Commission for

Human Services; JAY DEE CHASE;

PATRICK DILLS DOUGLAS;

MICHAEL L. PECK; GEROLDINE

WEBB; ANETA F. WILKINSON;

GEORGE E. YOUNG, SR., in their

official capacities as members of the

Oklahoma Commission for Human

Services; HOWARD HENDRICK, in

his official capacity as Director of the

Department of Human Services, 

Defendants-Appellants.

---------------------------

Appellate Case: 09-5093 Document: 01018362826 Date Filed: 02/08/2010 Page: 1
* Honorable Eugene E. Siler, United States Circuit Judge for the Sixth Circuit Court

of Appeals, sitting by designation. 

WHITE FIELDS, INC.; OKLAHOMA

BAPTIST HOMES FOR CHILDREN;

OKLAHOMA UNITED METHODIST

CIRCLE OF CARE; SAND SPRINGS

CHILDREN'S HOME; AMERICAN

LEGION CHILDREN'S HOME;

PEPPERS RANCH, INC.;

OKLAHOMA LIONS BOYS RANCH;

GOODLAND ACADEMY,

 Movants.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 08-CV-074-GKF-FHM)

 

Marcia Robinson Lowry, Children’s Rights, New York, New York (Frederic

Dorwart and Paul DeMuro, Frederic Dorwart Lawyers, Tulsa, Oklahoma, and

R. Thomas Seymour and Scott A. Graham, Seymour & Graham, LLP, Tulsa

Oklahoma, and Bruce W. Day and Joe E. Edwards, Day, Edwards, Propester &

Christensen, Oklahoma City, Oklahoma, with her on the briefs) for PlaintiffsAppellants.

Donald M. Bingham, Riggs, Abney, Neal, Turpen, Orbison & Lewis, P.C., Tulsa,

Oklahoma (Holly M. Hillerman, Riggs, Abney, Neal, Turpen, Orbison & Lewis,

P.C., Tulsa Oklahoma, and Robert A. Nance and Melvin C. Hall, Riggs, Abney,

Neal, Turpen, Orbison & Lewis, P.C., Oklahoma City, Oklahoma, with him on the

briefs) for Defendants-Appellees.

 

Before HOLMES, BALDOCK, and SILER,

*

 Circuit Judges.

 

BALDOCK, Circuit Judge.

 

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2

Nine Oklahoma foster children (“Named Plaintiffs”), acting through their next

friends, filed suit under 42 U.S.C. § 1983 against members of the Oklahoma

Commission for Human Services and the Director of the Oklahoma Department of

Human Services (“OKDHS”) in their official capacities, seeking declaratory and

injunctive relief. The Oklahoma Commission for Human Services is the body

responsible for formulating the policies and adopting the rules and regulations for

the administration of the OKDHS. In their complaint, Named Plaintiffs sought

certification of a class of all children who are or will be in the legal custody of

OKDHS due to a report or suspicion of abuse or neglect or who are or will be

adjudicated deprived due to abuse or neglect—approximately 10,000 children.

Named Plaintiffs allege OKDHS’s agency-wide foster care policies and practices

expose all class members to an impermissible risk of harm, violating their Fourteenth

Amendment right to substantive due process, their Fifth and Fourteenth Amendment

rights to procedural due process, and their liberty and privacy interests guaranteed

by the First, Ninth and Fourteenth Amendments. Specifically, Named Plaintiffs

assert OKDHS’s agency-wide deficiencies include: (1) failing to protect class

members from abuse and neglect while in OKDHS custody; (2) failing to protect

class members from abuse or neglect by their biological parents while in OKDHS

custody; (3) assigning excessive caseloads to its child welfare caseworkers and

supervisors; (4) engaging in dangerous monitoring and oversight practices; (5)

placing class members in unsafe and overcrowded emergency shelters; (6) placing

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3

class members in unsafe foster homes as a result of failing to develop sufficient

numbers of safe placements; (7) maintaining policies and practices that deny class

members opportunities to develop critical family relationships; and (8) maintaining

policies and practices that subject class members to harmful moves among multiple

inappropriate homes and facilities. 

When Named Plaintiffs filed their complaint seeking class certification in

February 2008, the parties did not have the benefit of our decisions in Shook v.

Board of County Commissioners, 543 F.3d 597 (10th Cir. 2008) (“Shook II”), and

Vallario v. Vandehey, 554 F.3d 1259 (10th Cir. 2009), which explain the proper

standards for class certification when plaintiffs seek injunctive relief. In light of

Shook II, the district court allowed Named Plaintiffs to supplement their motion for

class certification by submitting a statement of relief sought and then ordered both

parties to submit briefs addressing whether a class action seeking the relief requested

by Named Plaintiffs would satisfy the requirements of Federal Rules of Civil

Procedure 23(a), 23(b)(2), and 65(d) as explained in Shook II.

After reviewing Named Plaintiffs’ nine alleged common questions of fact, five

alleged common questions of law, and seven requested remedies, as well as both

parties’ supplemental briefs, the district court certified the proposed class. The

district court found the proposed class met Rule 23(a)(1)’s numerosity requirement

and Rule 23(a)(4)’s adequacy of class representation requirement. Neither party

disputes the class meets those requirements. The district court also explained in a

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4

thorough and careful order that at least one question of fact and one question of law

were common to the class, satisfying Rule 23(a)’s commonality requirement. Based

on the evidence submitted by the parties, the district court concluded “[w]hether

[OK]DHS has a policy or practice of failing to adequately monitor the safety of class

members causing significant harm and risk of harm to their safety, health and wellbeing” presents an issue of fact common to the entire class. According to the court,

this common question of fact raised one common issue of law: “[W]hether

[OK]DHS’s policies or practices violate class members’ right to be reasonably free

from harm and imminent risk of harm while in state custody.” The court then

concluded because Named Plaintiffs’ claims are typical of the class’s claims and

Named Plaintiffs’ claims are not significantly antagonistic to the class, the class

satisfied Rule 23(a)’s typicality requirement. Finally, the court determined at least

two of Named Plaintiffs’ proposed remedies—(1) an injunction setting limits on the

caseloads of caseworkers and their supervisors assigned to the class based on

Council on Accreditation (COA) and Child Welfare League of America (CWLA)

standards and (2) an injunction requiring caseworkers to visit all children in OKDHS

custody as frequently as set forth under COA and CWLA standards—satisfy Rule

23(b)(2) and 65(d)’s requirements as explained in Shook II. 

We granted Defendants’ timely request for permission to file an interlocutory

appeal of the district court’s order granting class certification. Defendants argue the

district court abused its discretion by erroneously finding the proposed class satisfied

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Rule 23(a)’s commonality and typicality requirements. They also assert the district

court erred in concluding the proposed class satisfied Rule 23(b)(2)’s “generally

applicable” and cohesiveness requirements. Exercising jurisdiction under 28 U.S.C.

§ 1292(e) and Fed. R. Civ. P. 23(f), we find no abuse of discretion and affirm the

district court’s order.

“We review the standard the district court used in making its Rule 23

determination de novo and the merits of that determination for an abuse of

discretion.” Vallario v. Vandehey, 554 F.3d 1259, 1264 (10th Cir. 2009); see also

Shook v. El Paso County, 386 F.3d 963, 967 (10th Cir. 2004) (“Shook I”).

Recognizing the considerable discretion the district court enjoys in this area, we

defer to the district court’s certification ruling if it applies the proper Rule 23

standard and its “decision falls within the bounds of rationally available choices

given the facts and law involved in the matter at hand.” Vallario, 554 F.3d at 1264.

We reverse for an abuse of discretion when the district court bases its decision on

either a clearly erroneous finding of fact or conclusion of law or by manifesting a

clear error of judgment. Id.

I. 

“‘In determining the propriety of a class action, the question is not whether the

plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but

rather whether the requirements of Rule 23 are met.’” Shook I, 386 F.3d at 971

(quoting Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982)). A

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1

 Rule 23(a) states: 

One or more members of a class may sue or be sued as representative

parties on behalf of all members only if:

(continued...)

6

district court may certify a class if the proposed class satisfies the requirements of

Rule 23(a) and the requirements of one of the types of classes in Rule 23(b). The

party seeking class certification bears the burden of proving Rule 23’s requirements

are satisfied. Shook I, 386 F.3d at 968. In deciding whether the proposed class

meets these requirements, the district court “must accept the substantive allegations

of the complaint as true,” though it “‘need not blindly rely on conclusory allegations

of the complaint which parrot Rule 23’ and ‘may consider the legal and factual issues

presented by plaintiff’s complaints.’” Id. (quoting J.B. ex rel. Hart v. Valdez, 186

F.3d 1280, 1290 n.7 (10th Cir. 1999)); see also Vallario, 554 F.3d at 1265. While

the court should not pass judgment on the merits of the case at the class certification

stage, it must conduct its own “‘rigorous analysis,’” to ensure Rule 23’s requirements

are met. Vallario, 554 F.3d at 1266–67 (quoting Shook I, 386 F.3d at 968); see also

Shook II, 543 F.3d at 612.

A.

 Rule 23(a) requires numerosity of class members, commonality of at least one

question of fact or law among the class, typicality of named plaintiffs’ claims or

defenses to the class’s claims or defenses, and adequacy of the named plaintiffs and

their attorneys as class representatives.1

 Fed. R. Civ. P. 23(a)(1)–(4). On appeal,

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1

(...continued)

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims

or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of

the class.

Fed. R. Civ. P. 23(a)(1)–(4).

7

Defendants only challenge the district court’s Rule 23(a) findings as to commonality

and typicality. A finding of commonality requires only a single question of law or

fact common to the entire class. J.B., 186 F.3d at 1288. Mere allegations of

systemic violations of the law, however, will not automatically satisfy Rule 23(a)’s

commonality requirement; a discrete legal or factual question common to the class

must exist. Id. “[E]very member of the class need not be in a situation identical to

that of the named plaintiff” to meet Rule 23(a)’s commonality or typicality

requirements. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982) (citing Rich

v. Martin Marietta Corp., 522 F.2d 333, 340 (10th Cir. 1975)). Factual differences

between class members’ claims do not defeat certification where common questions

of law exist. Id. (citing Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th

Cir. 1975)).

Defendants assert none of Named Plaintiffs’ questions of law or fact are

common to all class members by stressing that each of the approximately 10,000

children in OKDHS’s custody receives an individualized and specific placement,

treatment, and service plan that necessarily changes based on evolving circumstances

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8

and the unique characteristics of each child. Defendants, as a result, maintain that

determining whether OKDHS has inadequate monitoring policies requires an

individualized determination for each foster child. They also argue that Named

Plaintiffs have not met their burden of proving that every class member is

simultaneously subject to an imminent risk of serious harm as a result of OKDHS’s

controverted policies and practices. Defendants assert that the very statistics Named

Plaintiffs cite—1.2% of Oklahoma foster children in 2006 reported abuse or neglect,

for instance—reveal Named Plaintiffs have not met this burden. They reason

“[b]ecause 98.8% [of foster children] did not suffer injury or neglect, and because

not all putative class members are under an imminent threat of serious harm, the

District Court’s findings were clearly erroneous.” 

Defendants also argue for the first time that Named Plaintiffs’ proposed class

definition is “overly broad” because it includes children who are not under an actual

or imminent threat of harm, thereby defeating commonality and typicality. We, of

course, generally will not consider new arguments on appeal. See Robey-Harcourt

v. BenCorp Financial Co., Inc., 326 F.3d 1140, 1143 (10th Cir. 2003) (explaining

that “we will not consider a new theory on appeal, even one ‘that falls under the

same general category as an argument presented at trial’”). But to the extent that

Defendants’ “overly broad” argument relies on their argument, which they did assert

below, that Named Plaintiffs must prove every class member is under a threat of

harm to satisfy Rule 23(a)’s requirements of commonality and typicality, we address

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9

it here.

Named Plaintiffs allege OKDHS caseworkers routinely fail to comply with its

own policy of requiring caseworkers to visit children in the foster care program at

least once per month to monitor children’s safety and placement. They presented

evidence to the district court that for the last five years Oklahoma has placed among

the three worst states in the nation for the abuse or neglect of children in foster care.

They also assert a report by the Oklahoma Commission on Children and Youth found

that 25% of the foster homes it reviewed had serious safety issues and should never

have been approved for placement by OKDHS in the first place. Named Plaintiffs

maintain this and other similar evidence reveal OKDHS has a practice of failing to

adequately monitor the safety of class members, exposing all of them to an

unreasonable risk of harm. 

In its ruling, the district court acknowledged the considerable diversity of the

class Named Plaintiffs seek to represent—foster children range in age from infants

to teenagers, enter the system for many different reasons, may be placed in thirtynine different kinds of placements, and have varying needs and goals. Nevertheless,

the district court found at least one common issue of fact as to “[w]hether [OK]DHS

has a policy or practice of failing to adequately monitor the safety of plaintiff

children causing significant harm and risk of harm to [their] safety, health and wellbeing.” The district court explained that, based on the evidence submitted, whether

OKDHS’s policies or practices inflict harm or a risk of harm presents a question of

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2

 We do not suggest that Named Plaintiffs have at this stage proven OKDHS’s

monitoring polices or practices actually subject all class members to an

impermissible risk of harm. For reasons we later explain, Named Plaintiffs need not

(continued...)

10

fact common to all children in the proposed class but expressly noted it was “not

making any finding that these children are all subjected to harm as a result of

[OK]DHS’s monitoring practices.” Similarly, the district court did not state it found

OKDHS’s policies or practices actually subjected all class members to a risk of

harm. The court simply found that the issue of “whether [OKDHS’s] monitoring

practices compromise the safety of foster children is an issue common to the entire

proposed class[,]” regardless of their unique factual circumstances. Based on the

same rationale, the district court found at least one common issue of law regarding

“whether the alleged policies or practices violate plaintiffs’ [substantive due process]

right to be reasonably free from harm and imminent risk of harm while in state

custody.” (citing Yvonne L. v. New Mexico Dep’t of Human Serv., 959 F.2d 883,

892 (10th Cir. 1992) (explaining that children in state custody have a constitutional

right to be reasonably safe from harm)).

Accepting Named Plaintiffs’ allegations as true, as we must, we find the

district court did not abuse its discretion in finding an issue of fact and law common

to the class. Named Plaintiffs presented more than conclusory statements that

OKDHS’s agency-wide monitoring policies and practices, or lack thereof, create a

risk of harm shared by the entire class.2

 All class members, by virtue of being in

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2

(...continued)

prove class members have actually been subjected to an impermissible risk of harm

at this stage. Rather, we mean Named Plaintiffs have provided, as Shook II and

Vallario require, more than conclusory statements to demonstrate that whether

OKDHS’s monitoring policies and practices subject class members to an

impermissible risk of harm constitutes a question of fact common to the entire class.

11

OKDHS’s foster care, are subject to the purportedly faulty monitoring policies of

OKDHS, regardless of their individual differences; therefore, all members of the

class are allegedly exposed to the same unreasonable risk of harm as a result of

Defendants’ unlawful practices. Though each class member may not have actually

suffered abuse, neglect, or the risk of such harm, Defendants’ conduct allegedly

poses a risk of impermissible harm to all children in OKDHS custody. Thus, we

conclude the district court did not abuse its discretion in finding the requirement of

commonality satisfied. 

Defendants’ discussion of Milonas v. Williams, 691 F.2d 931, 935 (10th Cir.

1982) is unavailing. In Milonas, we affirmed the certification of a class of all

juveniles committed to a Utah correctional school in a lawsuit which alleged that

regardless of their individual differences “all of the boys at the school were in danger

of being subjected to” the institution’s illegal practices. Id. at 938. We, therefore,

concluded the typicality and commonality requirements of Rule 23(a) had been met.

Id. The shared risk of being subjected to the purportedly unconstitutional practices

justified certification. We did not require the named plaintiffs in Milonas to prove

either every class member had actually been subjected to the controverted practices

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12

or every class member had actually suffered constitutionally-cognizable harm as a

result of the practices. Similarly, in this case, every class member, by virtue of being

in OKDHS’s custody, is subject to OKDHS’s monitoring practices or lack thereof

and, therefore, “the issue of whether the monitoring practices compromise the safety

of foster children is an issue common to the entire proposed class.” 

Defendants’ reliance on J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir.

1999), is also unpersuasive. In J.B., we held the district court had not abused its

discretion in denying class certification. The named plaintiffs in J.B. alleged

multiple state agencies violated their rights; whereas, here Named Plaintiffs only

allege one state agency and its policies violated their rights. Second, the class of

plaintiffs in J.B. was far broader. The proposed class consisted of all children,

custodial and non-custodial (those at risk of being taken into state custody), who had

any form of developmental or mental disability. We, therefore, concluded “[o]ther

than being disabled in some way and having some sort of contact with [the state]’s

child welfare system, no common factual link joins” the suggested class. Id. at 1289.

In contrast, Named Plaintiffs in this case propose a class of only those foster children

in the custody of OKDHS by reason of abuse or neglect. Unlike the class members

denied certification in J.B., all class members now before us are in the custody of

one agency—OKDHS—for the same reason—abuse or neglect—and all are subject

to OKDHS’s monitoring policies, which allegedly subject them to a constitutionally

unreasonable risk of harm.

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3

 “Past wrongs are evidence bearing on whether there is a real and immediate

threat of repeated injury.” Tandy, 380 F.3d at 1283. To this end, the remaining six

of the original nine Named Plaintiffs allege physical abuse, sexual abuse, and other

injury due to unsafe conditions while in custody of OKDHS (three of the original

nine Named Plaintiffs are no longer representatives or members of the class because

they have been adopted or are no longer in OKDHS custody). The district court

concluded the remaining Named Plaintiffs’ allegations satisfied standing’s injury in

fact requirement and prospective relief’s imminent risk of future injury requirement.

Defendants do not challenge these findings on appeal and, consequently, we do not

(continued...)

13

Despite Defendants’ repeated suggestions otherwise, at the class certification

stage Named Plaintiffs do not bear the burden of proving the veracity of their

complaint’s allegations. Defendants’ contention that Rule 23(a)’s commonality and

typicality requirements demand that Named Plaintiffs prove all class members were

inadequately monitored or are actually exposed to an imminent threat of harm as a

result of deficient monitoring conflates the requirements for standing, prospective

injunctive relief, and class certification. First, only named plaintiffs in a class action

seeking prospective injunctive relief must demonstrate standing by establishing they

are suffering a continuing injury or are under an imminent threat of being injured in

the future. See Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must allege

and show that they personally have been injured, not that injury has been suffered

by other, unidentified members of the class to which they belong and which they

purport to represent.”); Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir.

2004) (“To seek prospective relief, the plaintiff must be suffering a continuing injury

or be under a real and immediate threat of being injured in the future.”).3

 Second,

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3

(...continued)

address them further. 

14

Rule 23’s certification requirements neither require all class members to suffer harm

or threat of immediate harm nor Named Plaintiffs to prove class members have

suffered such harm. On the contrary, Named Plaintiffs only have a burden to prove

that the allegations of their complaint, which at this stage we and the district court

must accept as true, satisfy Rule 23(a)’s requirements. Shook I, 386 F.3d at 968.

The Advisory Committee’s Note to Rule 23 explains certification is appropriate even

if the defendant’s action or inaction “has taken effect or is threatened only as to one

or a few members of the class, provided it is based on grounds which have general

application to the class.” Fed. R. Civ. P. 23(b)(2), 1966 Amendment advisory

committee note. “[A] class will often include persons who have not been injured by

the defendant’s conduct . . . . Such a possibility or indeed inevitability does not

preclude class certification.” Kohen v. Pacific Inv. Mgmt. Co., 571 F.3d 672, 677

(7th Cir. 2009). Rule 23(a) only requires the district court to find a question of fact

or law common to all class members. Fed. R. Civ. P. 23(a)(2). Requiring Named

Plaintiffs to prove all class members were inadequately monitored or are actually

exposed to a threat of harm due to OKDHS’s monitoring practices at the certification

stage would require them to answer the common question of fact or law, rather than

just prove it exists. Rule 23(a) does not require the district court to have an answer

before certifying a class; classwide discovery and further litigation answer the

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question after certification. 

We also briefly address Defendants’ argument that the district court made an

erroneous finding of fact. Defendants maintain because the evidence presented

demonstrated a class member has only a 1.2% chance of being injured, then 98.8%

of the putative class is not under an imminent threat of serious harm and, therefore,

no issue of fact or law common to its members exists. This argument entirely misses

the mark. The “injury” the Named Plaintiffs allege which the district court found

constituted a question of fact common to the class is not solely actual abuse or

neglect. The injury, instead, includes exposure to an impermissible risk of harm due

to OKDHS’s alleged agency-wide failure to monitor class members adequately. That

“only” 1.2% of OKDHS foster children actually suffered abuse reveals nothing about

how many of those children were not properly monitored and yet survived an

unconstitutional risk of abuse or neglect unscathed. Logically, the fact that 1.2% of

OKDHS foster children reported abuse or neglect does not mean the rest of the class

was not exposed to an impermissible risk of serious harm. In theory, 100% of foster

children could live under an imminent threat of serious harm, but only 1.2%

ultimately suffer and report abuse or neglect. 

B.

Having rejected Defendants’ claims of error as to the district court’s finding

of commonality pursuant to Rule 23(a), we now address the district court’s typicality

finding. Rule 23(a)(3) requires the claims of Named Plaintiffs to be typical of the

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claims of the class they seek to represent. The interests and claims of Named

Plaintiffs and class members need not be identical to satisfy typicality. Anderson v.

City of Albuquerque, 690 F.2d 796, 800 (10th Cir. 1982). Provided the claims of

Named Plaintiffs and class members are based on the same legal or remedial theory,

differing fact situations of the class members do not defeat typicality. Adamson v.

Bowen, 855 F.2d 668, 676 (10th Cir. 1988). 

Defendants argue against typicality by emphasizing class members’ individual

circumstances and, therefore, the individualized defense to each class member’s

claim of a constitutional violation. They also contend that Named Plaintiffs’ claims

cannot be typical of the class because the Named Plaintiffs have alleged they

suffered abuse while in OKDHS custody, while “only 1.2% of class members have

suffered abuse or neglect while in foster care.” 

After conducting its commonality analysis, the district court concluded that

though each Named Plaintiff and each potential class member has his or her own

unique background, the interests of the Named Plaintiffs and the class members are

not significantly antagonistic to one another. And, like commonality, typicality

exists where, as here, all class members are at risk of being subjected to the same

harmful practices, regardless of any class member’s individual circumstances. See

Milonas, 691 F.2d at 938 (finding commonality and typicality where all members of

class were in danger of being subjected to certain disciplinary practices regardless

of their individual differences). The harm and threat of harm suffered by the Named

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4

 Rule 23(b) explains:

A class action may be maintained if Rule 23(a) is satisfied and if . . . .

(2) 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. . . .

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

17

Plaintiffs as a result of OKDHS’s allegedly deficient monitoring practices is typical

of the harm and threat of harm suffered by all children in the class because all foster

children are subject to OKDHS’s challenged, agency-wide monitoring policies.

Additionally, Named Plaintiffs allege OKDHS’s monitoring policies violate their

substantive due process rights to be free from harm while in state custody, the same

legal theory that underlies class members’ corresponding claims. Due to the

common risk of harm and the common underlying legal theory for asserting that risk,

the district court acted within its discretion to find that typicality was satisfied.

II.

In addition to satisfying Rule 23(a)’s requirements, the class must also meet

the requirements of one of the types of classes described in subsection (b) of Rule

23. Named Plaintiffs in this case seek to certify a Rule 23(b)(2) type of class, i.e.,

they assert Defendants have “acted or refused to act on grounds that apply generally

to the class, so that final injunctive relief or corresponding declaratory relief is

appropriate for the class as a whole.”4

 Fed. R. Civ. P. 23(b)(2). As we explained in

Shook II, Rule 23(b)(2) “imposes two independent, but related requirements” upon

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those seeking class certification. Shook II, 543 F.3d at 604. First, plaintiffs must

demonstrate defendants’ actions or inactions are “based on grounds generally

applicable to all class members.” Id. Second, plaintiffs must also establish the

injunctive relief they have requested is “appropriate for the class as a whole.” Id.

(emphasis in original). Together these requirements demand “cohesiveness among

class members with respect to their injuries. . . .” Id. 

This cohesiveness, in turn, has two elements. First, plaintiffs must illustrate

the class is “sufficiently cohesive that any classwide injunctive relief” satisfies Rule

65(d)’s requirement that every injunction “‘state its terms specifically; and describe

in reasonable detail . . . the act or acts restrained or required.’” Id. (quoting Fed. R.

Civ. P. 65(d)). Second, cohesiveness also requires that class members’ injuries are

“sufficiently similar” that they can be remedied in a single injunction without

differentiating between class members. Id. Rule 23(b)(2)’s bottom line, therefore,

demands at the class certification stage plaintiffs describe in reasonably particular

detail the injunctive relief they seek “such that the district court can at least

‘conceive of an injunction that would satisfy [Rule 65(d)’s] requirements,’ as well

as the requirements of Rule 23(b)(2).” Id. at 605 (quoting Monreal v. Potter, 367

F.3d 1224, 1236 (10th Cir. 2004)). 

Defendants challenge the district court’s Rule 23(b)(2) determination by

arguing that the district court did not make a specific finding that OKDHS’s actions

or inactions are based on grounds generally applicable to all class members as Rule

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5

 For example, according to Named Plaintiffs, CWLA standards suggest a

caseload of twelve to fifteen children per caseworker and no more than five

caseworkers per supervisor. And, according to Named Plaintiffs, COA standards

require caseworkers to meet with foster children and parents at least once per month.

The district court did not necessarily accept Named Plaintiffs’ proposition that the

caseload limits or monitoring requirements should be based on these standards. But

because Named Plaintiffs had given specific content as what it would mean to

provide adequate caseload staffing or adequate monitoring by relying on the COA

and CWLA standards, the district court found “the injunctive relief is set forth in

enough concrete manageable detail that the court could at least conceive of an

injunction that would satisfy the requirements of both Rule 23(b)(2) and Rule 65(d).”

19

23(b)(2) requires. A review of the district court’s ruling does not bear out this

argument. The district court determined at least two remedies requested by Named

Plaintiffs satisfied Rule 23(b)(2)’s requirements as explained in Shook II: (1) an

injunction setting limits on the caseloads of caseworkers and their supervisors set by

COA and CWLA and (2) an injunction mandating caseworkers monitor foster

children by visiting them as frequently as set forth under COA and CWLA

standards.5

 The district court explained that because Named Plaintiffs assert that

excessive caseloads are harming or putting at risk of harm all children in the class,

the imposition of caseload limits would apply to the entire class. Similarly, the

district court explained in its ruling the monitoring injunctive relief requested meets

Rule 23(b)(2)’s cohesiveness requirement. Admittedly, the district court did not

recite the exact language of Rule 23(b)(2)—“the party opposing the class has acted

or refused to act on grounds that apply generally to the class”—when applying Shook

II and its teachings to the facts of this case, but earlier in its ruling as part of its

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20

careful and detailed explanation of Rule 23(b)(2)’s requirements as set forth in

Shook II, it did quote that precise language of Rule 23(b)(2). We refuse to find an

abuse of discretion where the district court is accused of not talismanically reciting

Rule 23(b)(2)’s exact language in applying the law to the facts when it clearly

understood the law it was required to apply and accurately applied it. Implicit in the

district court’s conclusion that the imposition of caseload limits would apply to the

entire class is the conclusion that all class members by virtue of living in OKDHS’s

foster care are subject to OKDHS’s alleged policy or practice of either assigning

excessive caseloads or failing to ensure caseworkers are not carrying excessive

caseloads. Thus, the district court found that at least one of Named Plaintiffs’

requested injunctions remedies OKDHS’s conduct based on grounds generally

applicable to the class. 

Defendants contend they presented evidence that the caseloads of caseworkers

in rural areas were not excessive and that OKDHS caseworkers for the most part

make their required visits. Defendants therefore maintain the district court “could

not have found these issues to have been generally applied to the class as a whole.”

They also claim this same evidence demonstrates Plaintiffs failed to prove all class

members suffered sufficiently similar injuries at the hands of OKDHS to satisfy Rule

23(b)(2)’s cohesiveness requirement. These arguments misunderstand what Rule

23(b)(2)’s “generally applicable” and cohesiveness requirements demand. First, Rule

23(b)(2) does not require Named Plaintiffs to prove OKDHS’s controverted policies

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or practices actually harm or impose a risk of harm upon every class member at the

class certification stage. As explained above, certification is appropriate even if the

defendant’s action or inaction “has taken effect or is threatened only as to one or a

few members of the class, provided it is based on grounds which have general

application to the class.” Fed. R. Civ. P. 23(b)(2), 1966 Amendment advisory

committee note (emphasis added). That a class possibly or even likely includes

persons unharmed by a defendant’s conduct should not preclude certification.

Kohen, 571 F.3d at 677. So long as OKDHS’s challenged practices are based on

grounds that apply generally to the class, class certification under Rule 23(b)(2) is

proper even if at the class certification stage it is conceivable some class members

have not been actually abused, neglected, or exposed to a risk of harm. Here the

“grounds” that have general application to the class are that all class members have

been placed in OKDHS’s foster care program and, as such, caseworkers monitor all

class members in a system that allegedly fails to ensure they do not carry caseloads

so demanding that they cannot monitor class members adequately. Second, Rule

23(b)(2) demands class members’ injuries alleged by Named Plaintiffs at the

certification stage appear “sufficiently similar that they can be addressed in a single

injunction that need not differentiate between class members.” Shook II, 543 F.3d

at 604. Named Plaintiffs allege the same injury on behalf of all class members as a

result of excessive caseloads—exposure to an impermissible risk of harm. And, the

district court expressly found exposure to an impermissible risk of harm a fact issue

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common to the entire class. To remedy this alleged harm, Named Plaintiffs propose

an injunction requiring OKDHS assign no more than 15 foster children to each

caseworker (based on CWLA standards). As the district court noted, such an

injunction applies to the proposed class as a whole without requiring differentiation

between class members. Because the district court properly applied the law to the

alleged facts, we conclude Defendants’ challenge of the district court’s Rule 23(b)(2)

findings is without merit.

III.

The district court’s decision comports with Rule 23, our governing case law,

and the alleged facts. Therefore, the district court did not abuse its discretion. We

also note the district court’s present certification decision is a preliminary one. After

the parties conduct classwide discovery, the district court may find that the class, in

fact, does not meet the requirements of Rule 23(a) or that more of Named Plaintiffs’

requested remedies or none at all meet Rule 23(b)(2)’s requirements. If the court so

finds, it possesses the discretion under Rule 23(c)(1)(C) to amend its certification

order to reflect its findings or decertify the class altogether prior to final judgment.

Fed. R. Civ. P. 23(c)(1)(C); see also In re Integra Realty Resources, Inc., 354 F.3d

1246, 1261 (10th Cir. 2004). 

AFFIRMED.

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