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Saturday, May 23, 2015

Preclusion, ascertainability, and civil rights classes

On this post about class certification in the Alabama marriage litigation, commenter "Hash" began an exchange about the scope of that class, whether it was properly defined, whether it was "ascertainable," and whether it allows for some gamesmanship by class members to avoid preclusion.

The class of plaintiffs is defined, in relevant part, as "all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex," with class members identifiable by their application for a license. Hash raises the following situation (I'm paraphrasing):

The plaintiffs lose and Judge Granade decides that Alabama's SSM ban does not violate the Fourteenth Amendment. A same-sex couple goes to federal court seeking an injunction against enforcement of the ban; the government argues preclusion, that the couple were part of a class in an action that already decided that the ban was constitutional. In response, the couple will argue that they were not part of the (unsuccessful) class because, at the time of the district court's ruling, they did not wish to be married. They only decided to get married afterwards, so the decision in the class action cannot be binding on them.

The problem, Hash argues, is that this couple will have no qualms about relying on the injunction to obtain the license, creating a one-way opt-out, claiming the benefits of the injunction if they win but avoiding the drawbacks if they lose.

My fuller thoughts after the jump.

First, Hash raises a genuine issue. All else being equal, this is how a couple would try to get around preclusion. And he is correct that the class definition should and generally will be merits-blind. True, it probably wasn't in this case, in part because, as another commenter notes, the class action is a follow-up to two previous individual injunctions in the same action, so we know exactly how Judge Granade comes out on the constitutional question. But it will not always be so.

Second, I do not believe this is unique to the marriage case, but rather is endemic to FRCP 23(b)(2) classes in constitutional actions. At pp. 7-8 of the class certification order, Judge Granade cites several 23(b)(2) precedents, with classes defined as, for example, "female students who seek to participate in varsity intercollegiate athletics" or "persons seeking abortions." These classes do not seem to be defined much differently than the class here, in that all are unspecified as to time. And I expect that, as Asher suggests in the comments to the earlier post, Judge Granade understood her injunction as applying to all people who wish to get married in the future. In fact, she cited one other case in which the class was defined as everyone who wished or expected to engage in some expressive activity in the future.

But does that raise due process concerns, in that someone will be bound in their future activity? Especially since 12(b)(2) requires neither notice nor opportunity to opt out of the class? I do not believe so for several reasons, somewhat tied to the nature of injunctive relief.

First, to the extent the government would argue issue preclusion, that generally does not apply to purely legal questions, such as the declaration that SSM bans do not violate the Fourteenth Amendment.

Second, even if the denial of the class injunction has claim-preclusive effect on every couple who may seek to marry in the future, this hypothetical couple will not be left without an option. Rather than filing a new action for an injunction--likely before Judge Granade, if in the Southern District--and having to face a preclusion defense, they could go back to Judge Granade as part of this action and seek relief from the judgment denying the injunction, under FRCP 60(b)(6) or (b)(5). The couple's arguments would be the same in both--the ban is, in fact, unconstitutional and the probate judge should be enjoined from enforcing it. And the trigger to both actions would be the same--some change in the law (for example, a decision from SCOTUS or the Eleventh Circuit) renders Judge Granade's denial of the injunction erroneous and inequitable. This, of course, is the converse of what defendants do to get out from under continuing injunctions and what the Alabama probate judges will do in Strawser if Obergefell comes out the opposite of what everyone expects. But it also is what an individual plaintiff would do, so why would it not work for class members?

Does this resolve the problem?

Posted by Howard Wasserman on May 23, 2015 at 04:18 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


On Hash's fourth point (which is interesting even if it's not an independent criticism), I think he's right that a denial of an injunction is disanalogous to a grant of an injunction for 60(b)(5) purposes. As one court's written:

Prospective application within the meaning of Rule 60(b)(5) means that the judgment a party seeks to render ineffective: 1) compels a party to perform; 2) orders a party not to perform a future act; or 3) mandates court supervision of continuing interaction between the parties. Injunctions and consent decrees are the usual prospective judgments that qualify for Rule 60(b)(5) relief . . . A denial of relief and dismissal of a claim rarely qualifies as a “prospective judgment” under Rule 60(b)(5).

Villescas v. Abraham, 285 F. Supp. 2d 1248, 1253 (D. Colo. 2003) (citing Twelve John Does v. Dist. of Columbia, 841 F.2d 1133, 1139-41 (D.C. Cir. 1988)).

That said, a decision by the Supreme Court finding a constitutional right to same-sex marriage might be an extraordinary circumstance that would justify (b)(6) relief from a denial of an injunction in the Alabama class's favor. The cases on postjudgment change of law and (b)(6) relief are all over the map, but a preclusive judgment that denies same-sex marriage to all present and future Alabaman same-sex couples, in the face of intervening Supreme Court precedent to the contrary, does seem to present extraordinary circumstances.

Posted by: Asher | May 23, 2015 8:18:58 PM

I believe there's a somewhat similar due process argument being made in objection to the 23(b)(2) portion of the credit card interchange fee settlement. In that case, the district court (Judge Gleeson EDNY) certified a non-opt out settlement only class: "consisting of all persons, businesses, and other entities that as of the Settlement Preliminary Approval Date of November 28,2012 or in the future accept any Visa-Branded Cards and/or MasterCard-Branded Cards in the United States".

The settlement is currently on appeal before the second circuit.

Posted by: brad | May 23, 2015 5:50:24 PM

PS. On further reflection, I just realized my fourth point is moot. Even if you can't get 60(b) relief from the denial of an injunction based on intervening law, I suppose you could just file a new suit, and argue that issue preclusion doesn't apply given the change in law, and that claim preclusion doesn't apply since it's a new T&O given the change in time. So, while I'm still skeptical about your interpretation of 60(b), the fourth point is no longer an independent criticism. Points 1-3 and 5 still are though.

Posted by: Hash | May 23, 2015 5:24:04 PM

Howard -- thanks for the response. In a nutshell, your position is that a court can avoid the improper uncertainty about who's in the class at the time of the judgment (which you acknowledge would allow impermissible one-way opt-out) by instead clearly defining the class to include people based on their post-judgment conduct. But, as you note, that raises serious Due Process concerns for those people, and I don't think your attempts to avoid the concerns work, for numerous reasons:

First, do you have any authority for the proposition that "issue preclusion ... generally does not apply to purely legal questions"? I don't believe that's correct. See, e.g., "Issue preclusion bars successive litigation of “an issue of fact or law” that “is actually litigated and determined by a valid and final judgment, and ... is essential to the judgment.” Restatement (Second) of Judgments § 27 (1980) (hereinafter Restatement)." Bobby v. Bies, 556 us 825, 834 (2009).

Second, as you note, a class-member wouldn't be able to get relief under Rule 60 (or avoid issue preclusion) unless, at a minimum, there was an intervening change in law. But there often won't be any such change in law. Imagine that Alabama passed a novel abortion law, that an ill-defined class is brought on behalf of individuals who want to get abortions barred by the law either now or in the future, and that the class loses on the merits in the 11th Circuit. Now imagine a woman who wasn't pregnant at the time of the CA11 decision becomes pregnant and wants to sue. What intervening law is there going to be? It's a law that's unique to Alabama, and all potential pltfs have been precluded by the prior class action, so there won't ever be any intervening change in law.

Third, even where there is an intervening change in law, that still doesn't change the fact that the "future" class members had their DP rights violated in that they were deprived of their independent ability to bring suit until such change in law occurred, given that they were improperly included in the class to begin with. A person shouldn't have to wait for someone else to bring suit, when he or she never had their own opportunity to bring suit.

Fourth, do you have any authority for the proposition that 60(b) relief is even available to overturn *the denial of an injunction* based on intervening law? I'm skeptical that's right either. It's true that 60(b) relief is available to overturn *the grant of an injunction* based on intervening law. But that's because the court has *continuing jurisdiction* over an injunction, and the injunction is no longer valid. By contrast, where a court denies injunctive relief, the case is over and the court's jurisdiction is done. So it seems much more like a case where a pltf seeks monetary damages and loses. Generally speaking, i don't believe 60(b) relief is available to overturn the denial of money damages based on intervening law. (Anyway, even if I'm wrong about this point, points 1-3 still hold.)

Finally, my objection is not endemic to 23(b)(2) class actions seeking injunctive relief for constitutional claims. There are plenty of class actions seeking prospective injunctive relief where the class can be defined based on objective and current criteria, such that there's no doubt at the outset who's in the class and who isn't: e.g., all students currently attending a segregated school, all prisoners currently incarcerated in substandard conditions, all employees currently working for a certain govt agency, etc. You may be right that there are some (even many) class actions similar to this one that have been certified before (though I suspect mostly unwittingly by district courts). But lower courts make plenty of mistakes when it comes to civil procedure, and I'm quite skeptical that any appellate court (let alone the SCt) has ever expressly upheld an order certifying a class of people where either 1) it's unknown who's in the class at the time of the judgment; or 2) it's known who's in the class at the time only because the class includes people based on their post-judgment conduct.

Posted by: Hash | May 23, 2015 5:16:02 PM

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