There is always a need: the "necessity doctrine" and class certification against government agencies.

• Author: Tenny, Daniel

TABLE OF CONTENTS INTRODUCTION I. CLASS CERTIFICATION AND THE SCOPE OF THE JUDGMENT A. Impact on the Scope of Relief B. The Influence of Procedural Posture 1. Procedural Posture in the Appellate Court 2. The Difficult Situation of District Courts 3. District Courts Retain Discretion to Find Necessity and Certify Classes II. THE CONSEQUENCES OF FAILING TO PROVIDE CLASSWIDE RELIEF A. Unavailability of Nonmutual Collateral Estoppel and the Possibility of Nonacquiescence B. The Value of Promises to Apply the Ruling Broadly 1. Unlikelihood of Binding Effect 2. Problems with Holding the Government to Its Promises CONCLUSION INTRODUCTION

On its face, Rule 23(b)(2) of the Federal Rules of Civil Procedure seems tailor-made for lawsuits against government. (1) Rule 23(b)(2) allows a class action when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." (2) This situation arises frequently in people's dealings with government agencies: recipients of public benefits and consumers using public utilities, for example, constitute large groups of people all subject to identical government policies who might seek injunctive relief. (3)

Litigants attempting to invoke Rule 23(b)(2) against government agencies have encountered an unforeseen obstacle, however, often referred to as the "necessity doctrine." Many courts have declined to certify classes when "[n]o useful purpose would be served by permitting [the] case to proceed as a class action." (4) These denials of class certification are premised on the idea that all putative plaintiffs would benefit from a favorable finding and the resulting injunctive or declaratory relief, and thus class certification is unnecessary. For example, one court denied class certification because "[t]he court could reasonably assume the good faith of a defendant such as the Chief Clerk of a state court especially given his express willingness to follow the court's injunction." (5) Dependence on the good faith of the defendant creates a problem for future potential litigants. If rulings are limited to the individual litigants in the case, those who are not parties to the original lawsuit cannot invoke the judgment, but must instigate new proceedings if the defendant does not adhere to the ruling. Particularly for people whose resources and access to the legal system are limited, the costs of beginning new proceedings can be prohibitive. (6) In addition, even litigants with the resources to begin new proceedings can encounter difficulties enforcing judgments against government entities. (7)

The necessity doctrine has great geographical acceptance, and at first glance appears fairly well-entrenched. Courts in most of the federal circuits have permitted the use of the necessity doctrine. (8) A few circuits have accepted some form of the doctrine, but have limited it to situations in which the defendant promises to apply the ruling broadly or the nature of the ruling would make it automatically apply broadly. (9) In other circuits, the status of the doctrine is unclear. (10) Only the Seventh Circuit has completely rejected the necessity doctrine, arguing that such analysis has no place in Rule 23 jurisprudence. (11) Courts of appeals may be reluctant to overturn the necessity doctrine because it has been applied for a long time. (12) In addition, the Supreme Court has not shown interest in resolving the split, (13) and the Advisory Committee did not address this issue in recent amendments to Rule 23. (14)

Still, the widespread acceptance of the necessity doctrine among appellate courts does not mean that its application is universal. Several district courts in circuits that accept the necessity doctrine have utilized their discretion and declined to apply the necessity doctrine. (15) Indeed, two circumstances suggest that district courts should limit the application of the necessity doctrine: the inability of plaintiffs to invoke offensive nonmutual collateral estoppel against government agencies, (16) and the tendency of agencies to decline to apply adverse circuit court rulings to nonlitigants, a practice known as "nonacquiescence." (17) Both of these factors make it less certain that people who are not parties to the initial litigation will be able to benefit from a ruling unless a class is certified.

This Note argues that district courts should rarely, if ever, refuse to certify classes based on the necessity doctrine, even in circuits which have endorsed it. Part I argues that class certification is necessary to ensure that class-wide relief will be available. Part II argues that ensuring the availability of relief with sufficiently broad scope is particularly critical because of its benefits for putative class members, noting in particular the relevance of the inability of plaintiffs to use nonmutual collateral estoppel against the government and agency nonacquiescence.

1. CLASS CERTIFICATION AND THE SCOPE OF THE JUDGMENT

   The most critical distinction between class actions and individual lawsuits is the relief granted by the court. In class actions, judicial relief affects a large number of people, whereas judgments in individual actions usually impact only the parties to the litigation. Courts invoking the necessity doctrine have held that class certification is not necessary in some cases because broad injunctive relief can be granted without class certification. (18) This argument has two major flaws. First, as shown in Section I.A, defendants seek to avoid class certification largely to avoid a remedy with broad application. Because defendants may use the necessity doctrine as a pretext for limiting the reach of the final judgment, district courts should be wary of denying class certification based on the assumption that injunctive relief will apply broadly anyway. Second, as argued in Section I.B, district courts are not well-positioned at the time of the decision on class certification to predict what sort of relief will be appropriate. Thus, although appellate courts have approved the necessity doctrine in cases in which district courts had already granted class-wide relief without class certification, district courts cannot know ahead of time that class certification will be unnecessary.

   1. Impact on the Scope of Relief

      Class certification may truly be unnecessary in cases in which the ruling will be broadly applicable even without certification. In Dajour B. v. City of New York, (19) the district court limited the scope of the necessity doctrine to circumstances in which the government acknowledged that the ruling would be broadly applicable. (20) Because the government contested the applicability of the ruling to the broad class, the court did not apply the necessity doctrine. (21) This limitation of the necessity doctrine seems sensible, although it leaves open the question of the binding force of the government acknowledgment. (22) Still, the government's purported willingness to promise to apply the ruling broadly calls into question why the doctrine is invoked at all. If class certification would not affect the scope of relief, why should the government oppose it? This Section suggests that opposition to class certification really stems from a desire to limit the scope of relief, and that district courts should therefore not apply the necessity doctrine unless they can be sure it will not limit the scope of the relief granted.

      Assuming it will not affect the scope of the defendant's liability, class certification actually benefits the defendant. (23) If a case is certified as a class action and the defendant prevails, the defendant prevents all class members from relitigating; in an individual action, the defendant only estops the parties to the litigation. (24) Thus, class certification protects defendants in cases in which class-like relief could be granted. (25) The potential harm to defendants if no class is certified is not merely hypothetical. For example, in Lewis v. New Mexico Department of Health, (26) the government sought to prohibit "class action-like" relief on the ground that no class had been certified. (27) The court allowed class-wide relief notwithstanding the failure to certify a class, citing, among other cases, the ease in which the Tenth Circuit accepted the necessity doctrine. (28) This type of ruling allows the plaintiff to obtain class-wide relief, but does not give the defendant an opportunity to bind the entire class because due process concerns prevent the defendant from using the ruling against new plaintiffs. (29)

      The procedural posture of Lewis merits some attention. The court invoked the necessity doctrine in a ruling that favored the plaintiff not at the class certification phase of the proceedings, but rather when granting class-wide relief through summary judgment. (30) The government defendants opposed the ruling, and thus had a strong incentive to argue that the necessity doctrine was inapposite: only if class certification was necessary could the government contend that failure to certify a class was sufficient grounds for overturning the relief granted. (31) These arguments are exactly reversed from the arguments typically made at the class certification stage, where the plaintiff wants to certify a class and the defendant argues that the necessity doctrine applies and therefore that certifying a class is not necessary.

      Why the change of heart? Only one explanation attributes consistent and logical mindsets to each party. (32) At each stage, the defendant seeks to limit the scope of any judgment that may be issued, while the plaintiff seeks to expand its scope. At the class certification stage, this means the plaintiff wants class certification and the defendant does not. Once a judgment in favor of the plaintiff is issued and the case has already...