B.K. v. Thomas Betlach , 922 F.3d 957 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
B.K., by her next friend Margaret No. 17-17501
Tinsley; B.T., by their next friend
Jennifer Kupiszewski; A.C.-B., by D.C. No.
their next friend Susan Brandt; M.C.- 2:15-cv-00185-
B., by their next friend Susan Brandt; ROS
D.C.-B., by their next friend Susan
Brandt; J.M., by their next friend
Susan Brandt,
Plaintiffs-Appellees,
v.
JAMI SNYDER, in her official capacity
as Director of the Arizona Health
Care Cost Containment System,
Defendant-Appellant.
2 B.K. V. SNYDER
B.K., by her next friend Margaret No. 17-17502
Tinsley; B.T., by their next friend
Jennifer Kupiszewski; A.C.-B., by D.C. No.
their next friend Susan Brandt; M.C.- 2:15-cv-00185-
B., by their next friend Susan Brandt; ROS
D.C.-B., by their next friend Susan
Brandt; J.M., by their next friend
Susan Brandt, OPINION
Plaintiffs-Appellees,
v.
GREGORY MCKAY, in his official
capacity as Director of the Arizona
Department of Child Safety,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted January 17, 2019
San Francisco, California
Filed April 26, 2019
Before: J. Clifford Wallace and Michelle T. Friedland,
Circuit Judges, and Lynn S. Adelman, * District Judge.
Opinion by Judge Wallace;
Partial Concurrence and Partial Dissent by Judge Adelman
*
The Honorable Lynn S. Adelman, United States District Judge for
the Eastern District of Wisconsin, sitting by designation.
B.K. V. SNYDER 3
SUMMARY **
Civil Rights
The panel affirmed in part and vacated in part the district
court’s class certification order and remanded for further
proceedings in an action brought by children in the Arizona
foster care system against directors of the Arizona
Department of Child Safety and the Arizona Health Care
Cost Containment System alleging that Arizona’s state-wide
policies and practices deprived them of required medical and
other services, and that this subjected them to a substantial
risk of harm and violated the Medicaid Act.
Plaintiffs alleged that defendants’ state-wide policies
and practices violated their rights to due process under the
Fourteenth Amendment, family integrity under the First,
Ninth, and Fourteenth Amendments, and medical services
under the Medicaid Act. The district court certified a
General Class of all children who are or will be in the
Department of Child Safety’s custody due to a report or
suspicion of abuse or neglect. The district court further
certified two subclasses: (1) a Non-Kinship Subclass
consisting of members in the General class who are not
placed in the care of an adult relative or person with a
significant relationship with the child; and (2) a Medicaid
Subclass consisting of all members of the General class who
were entitled to services under the federal Medicaid statute.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 B.K. V. SNYDER
Affirming the district court’s certification of the General
Class, the panel first held that class representative B.K. had
standing to press her due process claims given that she has
serious medical diagnoses, presented evidence that she has
not received adequate medical care or appropriate
placements in the past and presented evidence of a risk of
similar future harms. The panel then held that the district
court did not err or abuse its discretion in its ruling that the
class had commonality and typicality and that uniform
injunctive relief was available. The panel concluded that the
district court properly grounded its commonality
determination in the constitutionality of statewide policies
and practices that could be properly litigated in a class
setting. Addressing the typicality requirement, the panel
held that B.K. had demonstrated with evidence that she was
subject to statewide policies and practices that applied to
every member of the class. Finally, the panel held that a
single, indivisible injunction ordering state officials to abate
those policies and practices would provide relief to each
member of the class, thus satisfying Rule 23(b)(2).
Affirming the district court’s certification of the Non-
Kinship Subclass, the panel held that B.K. had standing to
bring the subclass’s due process claims. The panel then held
that by identifying certain statewide practices, such as
excessive use of emergency shelters and group homes, the
district court satisfied the commonality, typicality, and
uniformity of injunctive relief factors. The panel concluded
that the district court would be able to determine whether
defendants have an unconstitutional practice of placing
children in substantial risk of harm by evaluating these
practices as a whole, rather than as to each individual class
member.
B.K. V. SNYDER 5
Addressing the Medicaid Subclass, the panel held that
the materials in the record supported B.K.’s standing. The
panel held that the district court abused its discretion by
certifying the Medicaid Subclass based on an apparent
misconception of the legal framework for such a claim. The
panel noted that in the due process context relevant to the
General and Non-Kinship Subclasses, proving a substantial
risk of harm was all that was necessary to prove a claim. A
claim under the Medicaid Act, however, must be based on
actions that actually violate the Act’s requirements. The
panel further determined that the district court failed to make
a factual finding that every subclass member was subject to
an identical significant risk of a future Medicaid violation
that would support injunctive relief. The panel therefore
vacated the Medicaid Subclass and remanded for further
proceedings.
Concurring in part and dissenting in part, Judge Adelman
concurred in all parts of the majority’s opinion except the
portion addressing the Medicaid Subclass. Judge Adelman
stated that the answer to the legal question of whether
exposure to a risk of harm violates the Medicaid statute did
not affect class certification in this case, where the class
sought only injunctive relief. Moreover, Judge Adelman
stated that the district court made findings of fact that
supported its decision to certify the Medicaid Subclass, and
those findings were not clearly erroneous.
6 B.K. V. SNYDER
COUNSEL
Robert L. Ellman (argued) and David Simpson, Ellman Law
Group LLC, Phoenix, Arizona; Nicholas D. Acedo (argued)
and Daniel P. Struck, Struck Love Bojanowski & Acedo
P.L.C., Chandler, Arizona; Daniel P. Quigley, Cohen Dowd
Quigley P.C., Phoenix, Arizona; Logan T. Johnston,
Johnston Law Offices, Phoenix, Arizona; for Defendants-
Appellants.
Harry Frischer (argued) and Aaron Finch, Children’s Rights
Inc., New York, New York; Anne C. Ronan and Daniel J.
Adelman, Arizona Center for Law in the Public Interest,
Phoenix, Arizona; Andrea J. Diggs, Thomas D. Ryerson,
Joel W. Nomkin, Shane R. Swindle, and Joseph E. Mais,
Perkins Coie LLP, Phoenix, Arizona; for Plaintiffs-
Appellees.
Marsha L. Levick, Juvenile Law Center, Philadelphia,
Pennsylvania, for Amici Curiae Juvenile Law Center, Bluhm
Legal Clinic, Center for Children’s Law & Policy, Center for
Public Representation, Children & Family Justice Center,
Children’s Advocacy Institute, Children’s Defense Fund
New York, Civitas Childlaw Center, Columbia Legal
Services, Disability Rights Pennsylvania, Harvard Law
School Child Advocacy Program, Impact Fund, National
Association of Counsel for Children, National Center for
Youth Law, National Health Law Program, National
Women’s Law Center, Nebraska Appleseed, Robert F.
Kennedy Human Rights, Rutgers School of Law—Camden
Children’s Justice Clinic, Washington Lawyers’ Committee
for Civil Rights and Urban Affairs, and Youth Law Center.
Corene T. Kendrick, Prison Law Office, Berkeley,
California; Amanda W. Shanor and David C. Fathi,
B.K. V. SNYDER 7
American Civil Liberties Union Foundation, Washington,
D.C.; Kathleen E. Brody, ACLU Foundation of Arizona,
Phoenix, Arizona; for Amici Curiae American Civil
Liberties Union, American Civil Liberties Union of Arizona,
and Prison Law Office.
Andrew R. Kaufman, Lieff Cabraser Heimann & Bernstein
LLP, Nashville, Tennessee; Katherine I. McBride, Jason L.
Lichtman, and Jonathan D. Selbin, Lieff Cabraser Heimann
& Bernstein LLP, New York, New York; Elizabeth J.
Cabraser, Lieff Cabraser Heimann & Bernstein LLP, San
Francisco, California; for Amici Curiae Administrative Law,
Civil Procedure, and Federal Courts Professors.
OPINION
WALLACE, Circuit Judge:
The Arizona Department of Child Safety and the Arizona
Health Care Cost Containment System are responsible for
delivering health care and other services to the thousands of
children in the Arizona foster care system. In 2015, ten of
those children brought an action against the directors of
these agencies for alleged violations of the federal
Constitution and the Medicaid Act, alleging that Arizona’s
state-wide policies and practices deprived them of required
medical services, among other things, and thus subjected
them to a substantial risk of harm. Based on these claims, the
district court certified a class of all children who are or will
be in the Department of Child Safety’s custody, along with
two subclasses. The Director of the Department of Child
Safety and the Director of the Health Care Cost Containment
System timely sought review of those class certification
decisions, and we accepted their interlocutory appeals. We
8 B.K. V. SNYDER
have jurisdiction under 28 U.S.C. § 1292, and we affirm in
part, vacate in part, and remand for further proceedings.
I.
A.
Gregory McKay is the Director of the Arizona
Department of Child Safety (DCS). DCS’s primary purpose
is to “protect children,” by investigating reports of abuse and
neglect, establishing foster care placements, working with
law enforcement, maintaining permanency, and providing
treatment to families. Ariz. Rev. Stat. (ARS) § 8-451.
Pursuant to DCS’s statutory framework, DCS investigates
reports of threats to child safety and may remove children
from their homes by superior court order, consent of the
child’s guardian, or where “clearly necessary to protect the
child because exigent circumstances exist.” ARS
§ 8-821(A), (D). DCS may also petition to commence
dependency proceedings in Arizona state court by alleging
that a child is dependent. ARS § 8-841(A). On the filing of
such a petition, the Arizona court may issue “temporary
orders necessary to provide for the safety and welfare of the
child,” ARS § 8-841(F), and assumes continuing jurisdiction
“over all matters affecting dependent children,” In re Appeal
in Maricopa Cty. Juvenile Action No. JD-6236, 874 P.2d
1006, 1008 (Ariz. Ct. App. 1994). The court then holds a
dependency hearing to adjudicate whether the child is
dependent. ARS § 8-844. If the child is dependent, the court
will typically place the child in DCS’s legal custody,
triggering DCS’s legal obligations to the child. See, e.g.,
Oscar F. v. Dep’t of Child Safety, 330 P.3d 1023, 1025 (Ariz.
Ct. App. 2014) (“Since the day after the dependency petition
was filed, the children have been temporary wards of the
Court, committed to the legal care, custody and control of
DCS” (alterations and internal quotation marks omitted)).
B.K. V. SNYDER 9
Jami Snyder is Director of the Arizona Health Care Cost
Containment System (AHCCCS). AHCCCS administers
Arizona’s Medicaid program, which provides medical
services to various categories of individuals within the state.
Medicaid is “a cooperative federal-state program through
which the federal government provides financial assistance
to states so that they can furnish medical care to low-income
individuals.” Cal. Ass’n of Rural Health Clinics v. Douglas,
738 F.3d 1007, 1010 (9th Cir. 2013). Among those
individuals are foster children within the state’s care. See
42 U.S.C. § 1396a(a)(10)(A)(i)(I). Medicaid is jointly
financed by the federal and state governments and is
administered by state governments through state “plans,”
which are approved by the federal Secretary of Health and
Human Services. Cal. Ass’n of Rural Health Clinics,
738 F.3d at 1010. Once a state joins the Medicaid system, it
must comply with federal statutory and regulatory
requirements to ensure that its plan provides all required
healthcare services. Id. These requirements may be court-
enforced through a private claim by eligible Medicaid
beneficiaries, when such a claim exists. Id. at 1013. We refer
to McKay and Snyder collectively as “the Directors” unless
the context otherwise requires, without losing sight of their
unique statutory duties and the distinct claims asserted
against each.
The ten original plaintiffs in this case were foster
children in Arizona’s care. They initiated this action in
February 2015, alleging that the Directors had state-wide
policies and practices that violated their rights to due process
under the Fourteenth Amendment, family integrity under the
First, Ninth, and Fourteenth Amendments, and medical
10 B.K. V. SNYDER
services under the Medicaid Act. 1 The plaintiffs’ original
goal was to maintain a class action with themselves as class
representatives, but over the next two-plus years of litigation
eight plaintiffs were adopted or otherwise removed from the
foster care system, leaving only two at the time of class
certification. Since class certification, moreover, an
additional plaintiff appears to have aged out of the proposed
classes. We therefore discuss plaintiff B.K. as the
representative class member. 2
B.K. alleges that that she has been deprived of necessary
health care, separated from her siblings, deprived of family
contact, and placed in inappropriate care environments. B.K.
alleges that these deprivations amount to violations of her
right to due process under the Fourteenth Amendment and
of her right to reasonably prompt early and periodic
screening, diagnostic, and treatment services (EPSDT
services) under the Medicaid Act. B.K. also alleges that
these violations are caused by specified state-wide policies
and practices.
B.
In November 2016, the named plaintiffs sought class
certification for a class of all children who are or will be in
DCS’s custody, along with a subclass of children who, while
in DCS’s custody, were not placed in the care of an adult
1
The plaintiffs later voluntarily dismissed their family integrity
claim.
2
The record is admittedly vague on this point, but any vagary is
immaterial because it does not affect our disposition. On remand, the
district court remains free to certify, decertify, or amend classes, and the
parties may resolve which plaintiffs remain adequate class members in
that forum. See Fed. R. Civ. P. 23(c)(1)(C).
B.K. V. SNYDER 11
relative or person with a significant relationship with the
child, and a subclass of children eligible for Medicaid. The
named plaintiffs supported their motion for class
certification with their complaint; raw data generated by
DCS to show how DCS was failing to deliver timely health
care to foster children; expert reports by Steven Blatt, MD,
Marci White, MSW, and Arlene Happach, a psychologist,
who declared that Arizona’s foster care system put children
in grave risk of harm by failing to provide adequate care; and
independent investigative reports, deposition testimony, and
DCS/AHCCCS policy and educational materials. B.K. also
supported her claim as class representative with excerpts
from her DCS file that, if interpreted and credited as the
plaintiffs contended, could tend to show she has been kept in
inappropriate home settings and has serious unmet mental
and physical healthcare needs.
B.K. asserted two due process claims on behalf of the
general class, one due process claim on behalf of the non-
kinship subclass, and one Medicaid Act claim on behalf of
the Medicaid subclass. The district court analyzed the class
certification motion through the lens of these claims. In
September 2017, the district court certified the following
classes:
General Class: All children who are or
will be in the legal custody
of DCS due to a report or
suspicion of abuse or
neglect.
Non-Kinship
Subclass: All members in the
General Class who are not
placed in the care of an
adult relative or person
12 B.K. V. SNYDER
who has a significant
relationship with the
child.
Medicaid
Subclass: All members of the
General Class who are
entitled to early and
periodic screening,
diagnostic, and treatment
services under the federal
Medicaid statute.
The district court reasoned that the due process claims could
be litigated class-wide as to the General Class and Non-
Kinship Subclass by answering whether the alleged state-
wide policies and practices were unconstitutional, following
our reasoning in Parsons v. Ryan, 754 F.3d 657 (9th Cir.
2014). The district court explained that:
Even if health issues may differ, every child
in the [DCS] custody is necessarily subject to
the same medical, mental health, and dental
care policies and practices of the [DCS] in the
same way that the inmates in Parsons were
subjected to the policies and practices of the
ADC [Arizona Department of Corrections].
Any one child could easily fall ill, be injured,
need treatment, require a diagnostic, need
emergency care, crack a tooth, or require
mental health treatment. And any child in the
foster care system would be subjected to the
[DCS] policies regarding placement
decisions. Thus, every single child in the
foster care system faces a substantial risk of
B.K. V. SNYDER 13
serious harm if [DCS] policies and practices
fail to adhere to constitutional requirements.
The district court followed similar reasoning to certify the
Medicaid Subclass, explaining that:
Similar to the constitutional claims, central to
the claim here is the question of whether
practices by [DCS] and AHCCCS failed to
adhere to the Medicaid statute. Even if a
child’s specific medical diagnosis may differ,
however, whether the foster care system’s
practices establish a pattern of non-
compliance arise from statewide policies and
practices by [DCS] and AHCCCS.
The district court also held that class certification comported
with Federal Rule of Civil Procedure 23(a)(1), (3)–(4) and
23(b)(2).
The Directors timely sought interlocutory review of the
district court’s class certification order, and we stayed
proceedings in the district court pending our review. The
only issue on appeal is whether the three classes were
properly certified, including whether the named plaintiffs
and class members have standing to bring their claims.
II.
We review a district court’s class
certification decision for abuse of discretion.
An error of law is a per se abuse of discretion.
Accordingly, we first review a class
certification determination for legal error
under a de novo standard, and if no legal error
occurred, we will proceed to review the
14 B.K. V. SNYDER
decision for abuse of discretion. A district
court applying the correct legal standard
abuses its discretion only if it (1) relies on an
improper factor, (2) omits a substantial
factor, or (3) commits a clear error of
judgment in weighing the correct mix of
factors. Additionally, we review the district
court’s findings of fact under the clearly
erroneous standard, meaning we will reverse
them only if they are (1) illogical,
(2) implausible, or (3) without support in
inferences that may be drawn from the
record.
Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1002 (9th Cir.
2018) (internal quotation marks, alterations, and citations
omitted).
“We review the district court’s factual findings [as to
standing] under the clearly erroneous standard and review
the district court’s determination of standing de novo.” Ellis
v. Costco Wholesale Corp., 657 F.3d 970, 978 (9th Cir.
2011).
III.
Class actions are governed by Federal Rule of Civil
Procedure 23. Rule 23(b)(2) provides that “[a] class action
may be maintained if Rule 23(a) is satisfied and if . . . 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.” Rule 23(a) in
turn provides that “members of a class may sue or be sued as
representative parties on behalf of all members only if” four
class prerequisites are met. These four prerequisites are
B.K. V. SNYDER 15
commonly known as (1) numerosity, (2) commonality,
(3) typicality, and (4) adequacy of representation. Gen. Tel.
Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980).
The Directors argue that all three classes in this action
should not have been certified by the district court. We
examine each class in turn.
A.
The district court certified a General Class consisting of
“[a]ll children who are or will be in the legal custody of DCS
due to a report or suspicion of abuse or neglect.” This class
alleges that Director McKay has violated the class’s right to
substantive due process under the Fourteenth Amendment
by failing to care adequately for the children in the class. The
Directors argue that this class should have failed because the
class members lack standing to press their due process claim,
the class lacks commonality, the representative plaintiffs’
claims and defenses are not typical of the class, and uniform
injunctive relief under Rule 23(b)(2) is unavailable.
1.
We begin our analysis with standing. Standing is a
“threshold issue” and an “essential and unchanging part of
the case-or-controversy requirement of Article III.” Horne v.
Flores, 557 U.S. 433, 445 (2009) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). “To establish standing,
a plaintiff must present an injury that is concrete,
particularized, and actual or imminent; fairly traceable to the
defendant’s challenged action; and redressable by a
favorable ruling.” Id. (citing Lujan, 504 U.S. at 560–61). The
Directors argue that absent class members lack standing
because some class members are adequately receiving care,
and thus do not have a concrete due process injury. However,
16 B.K. V. SNYDER
the Directors misunderstand both the nature of the plaintiffs’
due process claims and the nature of an Article III standing
inquiry in the context of class certification.
Of course, the Directors are correct that class
representatives must have Article III standing, as the
irreducible constitutional minimum of a case or controversy.
See In re Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir.
2018). It was the named plaintiffs’ burden — as it would be
any other plaintiff’s — to support each standing element “in
the same way as any other matter on which the plaintiff bears
the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of litigation.”
Lujan, 504 U.S. at 561. “[T]he manner and degree of
evidence required at the preliminary class certification stage
is not the same as at the successive stages of the litigation —
i.e., at trial.” Sali, 909 F.3d at 1006 (internal quotation marks
omitted). But the Directors then confuse the standing
analysis in a class action for the class certification analysis.
As we have previously explained, “once the named plaintiff
demonstrates her individual standing to bring a claim, the
standing inquiry is concluded, and the court proceeds to
consider whether the Rule 23(a) prerequisites for class
certification have been met.” Melendres v. Arpaio, 784 F.3d
1254, 1262 (9th Cir. 2015) (quoting 1 William B.
Rubenstein, Newberg on Class Actions § 2:6 (5th ed. 2011)).
“[A]ny issues regarding the relationship between the class
representative and the passive class members — such as
dissimilarity in injuries suffered — are relevant only to class
certification, not to standing.” Id. (quoting Newberg on
Class Actions § 2:6). This does not mean that Article III
considerations are irrelevant to Rule 23, for we are always
“mindful that the Rule’s requirements must be interpreted in
keeping with Article III constraints.” Ortiz v. Fibreboard
Corp., 527 U.S. 815, 831 (1999) (alterations omitted)
B.K. V. SNYDER 17
(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
612–13 (1997)). But it does mean that when we measure a
plaintiff’s standing, regardless of whether the plaintiff sues
individually or as class representative, we look concretely at
the facts that pertain to that plaintiff. Thus, the relevant
inquiry here is whether B.K. has standing to bring the two
due process claims asserted on behalf of the General Class.
In this case, B.K. has standing to press her due process
claims, and that concludes the standing inquiry. B.K. has
serious medical diagnoses that require prompt and adequate
medical care from her custodian, which is the State of
Arizona. She has presented evidence that she has not
received adequate medical care or appropriate placements in
the past as well as evidence that statewide policies and
practices expose her to a risk of similar future harms. If state
officials failed and continue to fail to provide her
“reasonable safety and minimally adequate care and
treatment appropriate to [her] age and circumstances”
through the deficient statewide policies and practices she
alleges, the harm to her will have been caused by those
officials. See Lipscomb v. Simmons, 962 F.2d 1374, 1379
(9th Cir. 1992). If those allegedly deficient policies and
practices are abated by an injunction, that harm may be
redressed by a favorable court decision. B.K. therefore has
standing to press the due process claims she brings on behalf
of the General Class.
2.
We next turn to whether B.K. may represent the General
Class consistent with Rule 23. We begin our analysis with
commonality.
Rule 23(a)(2) provides that class members may sue as
representative parties only if “there are questions of law or
18 B.K. V. SNYDER
fact common to the class.” “That language is easy to
misread, since any competently crafted class complaint
literally raises common questions.” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 349 (2011) (alteration and internal
quotation marks omitted) (quoting Richard Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U. L.
Rev. 97, 131–32 (2009)). Merely alleging a “violation of the
same provision of law” does not satisfy commonality. Id. at
350. Instead, the plaintiffs’ claims must “‘depend upon a
common contention’ such that ‘determination of their truth
or falsity will resolve an issue that is central to the validity
of each of the claims in one stroke.’” Parsons, 754 F.3d
at 675 (alteration omitted) (quoting Wal-Mart, 564 U.S.
at 350). “What matters to class certification is not the raising
of common questions — even in droves — but, rather the
capacity of a classwide proceeding to generate common
answers apt to drive the resolution of the litigation.” Id.
(internal quotation marks, alterations, and emphasis omitted)
(quoting Wal-Mart, 564 U.S. at 350). “[W]here the
circumstances of each particular class member vary but
retain a common core of factual or legal issues with the rest
of the class, commonality exists.” Id. (quoting Evon v. Law
Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir.
2012)).
“[I]n all class actions, commonality cannot be
determined without a precise understanding of the nature of
the underlying claims.” Id. at 676. “[T]o assess whether the
putative class members share a common question, the
answer to which will resolve an issue that is central to the
validity of each one of the class member’s claims, we must
identify the elements of the class member’s case-in-chief.”
Id. (internal quotation marks and alterations omitted)
(quoting Stockwell v. City and Cty. of San Francisco,
749 F.3d 1107, 1114 (9th Cir. 2014)).
B.K. V. SNYDER 19
Here, B.K. seeks to press two due process claims on
behalf of the General Class. Due process requires the state to
provide children in its care “reasonable safety and minimally
adequate care and treatment appropriate to the age and
circumstances of the child.” Lipscomb, 962 F.2d at 1379. To
prevail on a claim for failure to meet this duty, a plaintiff
must prove that state officials acted with such deliberate
indifference to the plaintiffs’ liberty interest that their actions
“shock the conscience.” Tamas v. Dep’t of Soc. & Health
Servs., 630 F.3d 833, 844 (9th Cir. 2010) (quoting Brittain
v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006)). This standard
requires proof of two facts: (1) an objectively substantial risk
of harm, and (2) the official’s subjective awareness of that
risk. Id. at 845. The second part may be proven by showing
(1) that the official was aware of facts from which an
inference of risk may be drawn and that the official made
that inference, (2) that the official was aware of facts from
which an inference of risk may be drawn and that any
reasonable official would have been compelled to draw that
inference, or (3) that the risk of harm is obvious. Id.
Based on the nature of the plaintiffs’ due process claims
and the scope of the class certified, the district court here did
not abuse its discretion by determining that commonality
exists. We have previously recognized in the Eighth
Amendment context that a state’s policies and practices can
expose all persons within its custody to a substantial risk of
harm, which is the legal standard required by this due
process claim. In Parsons v. Ryan, we held that a class of
“all prisoners who are now, or will in the future be, subjected
to the medical, mental health, and dental care policies and
practices of the ADC [Arizona Department of Corrections]”
had sufficient commonality because “[t]he putative class . . .
members thus all set forth numerous common contentions
whose truth or falsity can be determined in one stroke:
20 B.K. V. SNYDER
whether the specified statewide policies and practices to
which they are all subjected by ADC expose them to a
substantial risk of harm.” 754 F.3d at 678. We explicitly
rejected the reasoning pressed on us by the Directors here:
that “plaintiffs’ claims a[re] ultimately little more than a
conglomeration of many such individual claims, rather than
. . . a claim that central policies expose all inmates to a risk
of harm.” Id. at 675 n.17. Thus, it did not matter whether
each individual prisoner had already been harmed by falling
sick and receiving inadequate care, but whether every
prisoner, solely by virtue of being in Arizona’s prisons, was
at substantial risk of future harm. Id. at 678. Because every
prisoner in the class was exposed, “as a result of specified
statewide ADC policies and practices that govern the overall
conditions of health care services and confinement, to a
substantial risk of serious future harm to which the
defendants are allegedly deliberately indifferent . . . every
inmate suffer[ed] exactly the same constitutional injury.” Id.
The “policies and practices [we]re the ‘glue’ that h[eld]
together the putative class,” because “either each of the
policies and practices is unlawful as to every inmate or it is
not.” Id. 3
The same reasoning applies here. The district court
properly grounded its commonality determination in the
constitutionality of statewide policies and practices, which is
a “common question of law or fact” that can be litigated in
3
Some of the policies and practices alleged in Parsons included:
“creation of lengthy and dangerous delays in receiving care and outright
denials of health care; . . . a practice of employing insufficient health care
staff; . . . failure to provide prisoners with care for chronic diseases and
protection from infectious diseases; . . . denial of medically necessary
mental health treatment . . . and . . . denial of basic mental health care to
suicidal and self-harming prisoners.” Parsons, 754 F.3d at 664 (internal
quotation marks and alterations omitted).
B.K. V. SNYDER 21
“one stroke.” See Wal-Mart, 564 U.S. at 350. Specifically,
the district court identified the following “statewide
practices affecting the proposed General Class”: (1) failure
to provide timely access to health care, including
comprehensive evaluations, timely annual visits, semi-
annual preventative dental health care, adequate health
assessments, and immunizations; (2) failure to coordinate
physical and dental care service delivery; (3) ineffective
coordination and monitoring of DCS physical and dental
services; (4) overuse of congregate care for children with
unmet mental needs; (5) excessive caseworker caseloads;
(6) failure to investigate reports of abuse timely; (7) failure
to document “safety assessments”; (8) failure to close
investigations timely; and (9) investigation delays.
Regardless whether any of these policies are ultimately
found unconstitutional such that the plaintiffs prevail on the
merits, their constitutionally can properly be litigated in a
class setting. Thus, as in Parsons, the statewide policies and
practices are the “glue” that holds the class together. See
754 F.3d at 678.
The Directors do not seriously dispute the adequacy of
the General Class in this regard. At oral argument, counsel
for the Directors conceded that they were not challenging the
district court’s application of Parsons, but the validity of
Parsons itself. That argument is beyond the scope of this
panel’s authority and we will not address it. See Miller v.
Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc)
(holding that circuit precedent may be overturned only en
banc, with exceptions that do not apply here). We therefore
conclude that the district court did not abuse its discretion by
concluding that commonality existed.
22 B.K. V. SNYDER
3.
We next address typicality. Rule 23(a)(3) provides that
class members may sue as representative parties only if “the
claims or defenses of the representative parties are typical of
the claims or defenses of the class.” The named plaintiff’s
representative claims are “typical” if they are “reasonably
coextensive with those of absent class members; they need
not be substantially identical.” Parsons, 754 F.3d at 685
(quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th
Cir. 1998)). “The test of typicality is ‘whether other
members have the same or similar injury, whether the action
is based on conduct which is not unique to the named
plaintiffs, and whether other class members have been
injured by the same course of conduct.’” Id. (quoting Hanon
v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)).
In Parsons, we concluded that the district court did not
abuse its discretion in similar circumstances. There, we
reasoned that (1) “the named plaintiffs are all inmates in
ADC custody” and (2) “[e]ach declares that he or she is
being exposed, like all other members of the putative class,
to a substantial risk of serious harm by the challenged ADC
policies and practices.” Id. Based on those facts, we
concluded that
The named plaintiffs thus allege “the same or
a similar injury” as the rest of the putative
class; they allege that this injury is a result of
a course of conduct that is not unique to any
of them; and they allege that the injury
follows from the course of conduct at the
center of the class claims.
Id. (alteration omitted) (quoting Hanon, 976 F.2d at 508).
B.K. V. SNYDER 23
Once more, the same reasoning applies here. B.K. is a
child in Arizona’s custody. The members of the General
Class are children who are or will be in Arizona’s custody.
B.K. has demonstrated, not merely through allegations but
through raw data, expert reports, deposition testimony, and
DCS materials, that she is subject to statewide policies and
practices that apply equally to every member of the class. By
defining her claim based on the risk of harm caused by these
policies — a cognizable constitutional injury under our
precedent — B.K. has demonstrated that class members have
similar injuries, based on conduct that is not unique to her,
and caused by the same injurious course of conduct. See id.
The Directors counter that B.K., and in fact any class
representative, remains atypical because the class is
internally in conflict. Citing typicality’s purpose of
“assur[ing] that the interest of the named representative
aligns with the interests of the class,” Stearns v. Ticketmaster
Corp., 655 F.3d 1013, 1019 (9th Cir. 2011) (quoting Wolin
v. Jaguar Land Rover N. Am., 617 F.3d 1168, 1175 (9th Cir.
2010)), the Directors argue that class representatives will
seek to prioritize their own desired reforms to Arizona’s
foster care system at the expense of other possibilities. This
is not necessarily true, cf. Peralta v. Dillard, 744 F.3d 1076,
1083 (9th Cir. 2014) (en banc) (“Lack of resources is not a
defense to a claim for prospective relief because prison
officials may be compelled to expand the pool of existing
resources in order to remedy continuing Eighth Amendment
violations”), but — even were we to agree with the
Directors’ argument in principal — it would not be enough
for us to deem the district court’s contrary decision a legal
error or “a clear error of judgment.” See Sali, 909 F.3d at
1002. B.K.’s claim is reasonably coextensive with absent
class members’ claims, and that is sufficient.
24 B.K. V. SNYDER
The district court did not abuse its discretion by
determining that the named plaintiffs were typical of the
class.
4.
Finally, we address uniform injunctive relief. Civil Rule
23(b)(2) provides that “[a] class action may be maintained if
. . . 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.” “The key to the
(b)(2) class is the ‘indivisible nature of the injunctive or
declaratory remedy warranted — the notion that the conduct
is such that it can be enjoined or declared unlawful only as
to all of the class members or as to none of them.’” Wal-
Mart, 564 U.S. at 360 (quoting Nagareda, 84 N.Y.U. L. Rev.
at 132). “In other words, Rule 23(b)(2) applies only when a
single injunction or declaratory judgment would provide
relief to each member of the class. It does not authorize class
certification when each individual class member would be
entitled to a different injunction.” Id. (emphasis in original
omitted).
In Parsons, we concluded that the district court did not
abuse its discretion by certifying a Rule 23(b)(2) class when
the plaintiffs requested the defendants be ordered “to
develop and implement, as soon as practical, a plan to
eliminate the substantial risk of serious harm that prisoner
Plaintiffs and members of the Plaintiff Class suffer due to
Defendants’ inadequate medical, mental health, and dental
care.” 754 F.3d at 687. Rejecting the defendants’ argument
that every individual inmate required an individual
injunction, we explained that Rule 23(b)(2)’s requirements
are “unquestionably satisfied when members of a putative
class seek uniform injunctive or declaratory relief from
B.K. V. SNYDER 25
policies or practices that are generally applicable to the class
as a whole.” Id. at 688. Thus, because “all members of the
putative class and subclass [we]re allegedly exposed to a
substantial risk of serious harm by a specified set of
centralized ADC policies and practices of uniform and
statewide application,” the defendants had “acted or refused
to act on grounds that apply generally to the class.” Id.
(quoting Fed. R. Civ. P. 23(b)(2)).
Once more, the same reasoning applies here. The
plaintiffs have not brought a concatenation of individual
claims that must be redressed through individual injunctions;
they have brought unified claims that “a specified set of
centralized [DCS] policies and practices of uniform and
statewide application” have placed them at a substantial risk
of harm. See id. A single, indivisible injunction ordering
state officials to abate those policies and practices “would
provide relief to each member of the class,” thus satisfying
Rule 23(b)(2). See Wal-Mart, 564 U.S. at 360.
The Directors’ arguments to the contrary do not convince
us. The Directors first argue that no injunction could apply
to all plaintiffs in the general class because different foster
children face different potential harms, thus having different
competing interests, and thus needing different injunctive
relief. But this argument improperly assumes that abating the
plaintiffs’ specified policies and practices will be an either-
or situation where only some (or zero) class members
receive their desired relief. That is incorrect, for two reasons.
First, class certification is not a decision on the merits, and
the plaintiffs will only be entitled to injunctive relief if such
relief is necessary to redress the constitutional violations
they actually prove at trial. Second, even if abating two or
more unconstitutional policies is impossible with limited
funds, state officials “may be compelled to expand the pool
26 B.K. V. SNYDER
of existing resources in order to remedy continuing
[constitutional] violations.” Peralta, 744 F.3d at 1083. For
instance, the district court could enjoin DCS to hire more
caseworkers in order to meet health care delivery deadlines
in a manner that ensures the plaintiffs receive timely medical
evaluations and care. Cf. Parsons, 754 F.3d at 689 (“For
example, every inmate in ADC custody is allegedly placed
at risk of harm by ADC’s policy and practice of failing to
employ enough doctors — an injury that can be remedied on
a class-wide basis by an injunction that requires ADC to hire
more doctors”). Thus, any future lack of resources or other
federalism concerns invoked by the prospect of injunctive
relief go only to the ultimate scope of the injunction. They
do not per se forbid the district court from certifying a
Rule 23(b)(2) class.
The Directors next argue that the district court erred
because the plaintiffs failed to provide a specific injunction
that could satisfy Rule 23(b)(2) and Rule 65(d). This
argument has no basis in existing law, whether in the text of
the Federal Rules or in our precedent. Plaintiffs do not need
to specify the precise injunctive relief they will ultimately
seek at the class certification stage. Instead, as we have
explained before, Rule 23(b)(2)
ordinarily will be satisfied when plaintiffs
have described the general contours of an
injunction that would provide relief to the
whole class, that is more specific than a bare
injunction to follow the law, and that can be
given greater substance and specificity at an
appropriate stage in the litigation through
fact-finding, negotiations, and expert
testimony.
B.K. V. SNYDER 27
Parsons, 754 F.3d at 689 n.35. In this case, the “general
contours of an injunction” are enjoining DCS to abate the
nine policies identified by the district court as amenable to
class-wide litigation. That was enough. A more specific
injunction will depend on further fact-finding and what
claims the plaintiffs actually prove through further litigation.
In sum, the district court did not err or abuse its
discretion in its rulings on standing, commonality, typicality,
and uniform injunctive relief. We affirm the district court’s
certification of the General Class.
B.
We next consider the Non-Kinship Subclass. The district
court certified a class of “[a]ll members in the General Class
who are not placed in the care of an adult relative or person
who has a significant relationship with the child.” As with
the General Class, the plaintiffs’ legal theory was that this
subclass was denied due process of law under the Fourteenth
Amendment when Director McKay’s statewide practices
and policies placed them at substantial risk of harm.
We begin our Non-Kinship Subclass inquiry with
standing. Once more, the relevant question is whether B.K.
has standing to challenge the allegedly unconstitutional
policies and practices affecting the subclass. See Melendres,
784 F.3d at 1262. Once more, we conclude that B.K. has
standing to bring this subclass’s due process claim. B.K. has
alleged and presented evidence that she has been separated
from her siblings, prevented from seeing her mother, placed
in an inappropriate group home, and placed in temporary
housing for long periods of time. B.K. has also presented
evidence, as we have previously discussed, that she has
serious behavioral and medical concerns requiring attention
from her custodian. B.K. has thus alleged and provided
28 B.K. V. SNYDER
evidence that, as a child in DCS custody, she faces a risk of
harm from DCS policies and practices that inadequately
provide for children who do not have available kinship
placements. Consistent with “the manner and degree of
evidence required at th[is] . . . stage[] of litigation” to prove
standing, Lujan, 504 U.S. at 561, these allegations and
evidence describe imminent, concrete injuries — fairly
traceable to the alleged state-wide practices and redressable
by abatement of those practices. The district court did not err
by concluding that B.K. has standing.
There is little else to add about this subclass that we have
not already said about the General Class. The Directors’
brief does not suggest a reason why the Non-Kinship
Subclass would fail if the General Class succeeds, and we
“will not manufacture arguments for an appellant.”
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). We
therefore confine our review to whether, under the same
challenges articulated in our foregoing discussion of the
General Class, the district court abused its discretion by
certifying the Non-Kinship Subclass.
We conclude that the district court did not abuse its
discretion. The district court identified the following
statewide practices affecting the Non-Kinship Subclass:
(1) excessive use of emergency shelters and group homes;
(2) unnecessary separation of siblings; and (3) placement of
children far from home. As with the General Class,
commonality, typicality, and uniformity of injunctive relief
were satisfied by identifying these practices because the
district court will be able to determine whether the Directors
have an unconstitutional practice of placing children in
substantial risk of harm by evaluating these practices as a
whole, rather than as to each individual class member. For
instance, if the plaintiffs prove that state officials have a
B.K. V. SNYDER 29
practice of placing children in emergency shelters for
months, and that such a practice is unconstitutional, it might
declare that practice unconstitutional. The district court
might then enjoin the Directors to take concrete steps to meet
specific placement deadlines, such as by expanding the
number of foster homes. Cf. Parsons, 754 F.3d at 689 (“For
example, every inmate in ADC custody is allegedly placed
at risk of harm by ADC’s policy and practice of failing to
employ enough doctors — an injury that can be remedied on
a class-wide basis by an injunction that requires ADC to hire
more doctors”). That demonstrates the requisite
commonality, typicality, and uniformity of injunctive relief.
It does not matter whether, at this “tentative, preliminary,
and limited” phase, see Sali, 909 F.3d at 1004 (internal
quotation marks and citations omitted), proving the
unconstitutionality of these practices will be difficult or not.
It also does not matter whether crafting appropriate
injunctive relief will be difficult or not. Those merits
questions, while not irrelevant to the class certification
inquiry, do not preclude certification as a matter of law
unless proving the answer to a common question or crafting
uniform injunctive relief will be impossible. Otherwise, we
commit class certification decisions to the district court’s
discretion, and we hold there is no “clear error of judgment”
here that shows an abuse of that discretion. See id. at 1002.
We therefore affirm the district court’s certification of
the Non-Kinship Subclass.
C.
We last consider the Medicaid Subclass. The district
court certified a class of “[a]ll members of the General Class
who are entitled to early and periodic screening, diagnostic,
and treatment services under the federal Medicaid statute.”
The Directors argue that this subclass lacks commonality,
30 B.K. V. SNYDER
typicality, uniformity of injunctive relief, and that the class
lacks standing. The Directors also argue that the plaintiffs
have failed to prove sufficiently the factual bases for those
requirements.
1.
Once again, we begin our analysis with standing. The
relevant question is whether B.K. has suffered, or will
imminently suffer, a concrete injury, caused by the
Directors’ failure to timely provide her with EPSDT
services, and redressable by a favorable court decision. See
Melendres, 784 F.3d at 1262. These elements must be
supported by “the manner and degree of evidence required
at th[is] successive stage[] of the litigation,” Lujan, 504 U.S.
at 561, i.e., tentative class certification. At this “tentative,
preliminary, and limited” stage we have held strictly
admissible evidence is not required, see Sali, 909 F.3d at
1004 (internal quotation marks and citations omitted), and
we have indicated that plaintiffs can meet their evidentiary
burden in part through allegations when the allegations are
detailed and supported by additional materials, see Parsons,
754 F.3d at 683 (concluding that plaintiffs met evidentiary
burden through “four thorough and unrebutted expert
reports, the detailed allegations in the 74-page complaint,
hundreds of internal ADC documents, and declarations by
the named plaintiffs”).
Here, B.K. alleges that she has been “deprived of needed
physical and mental health care,” including by failures to
ensure that she obtained glasses, to ensure she received
orthopedic shoes, to have her seen by a dentist, to provide
her with psychological evaluations, and to provide her with
counseling. She also alleges that the Directors have “a
practice of failing to provide members of the Medicaid
Subclass with the screening, diagnostic and treatment
B.K. V. SNYDER 31
services required under the EPSDT provisions of the
Medicaid Act.” These allegations, if true, would demonstrate
a concrete injury caused by the failure to receive EPSDT
services timely as well as “a sufficient likelihood that [s]he
will again be wronged in a similar way,” which would be
redressable by an injunction ordering the Directors to abate
the policies and/or practices that caused the delivery failure.
See Haro v. Sebelius, 747 F.3d 1099, 1108 (9th Cir. 2014)
(quotation marks and citation omitted); see also Armstrong
v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (abrogated on
other grounds by Johnson v. California, 543 U.S. 499
(2005)) (explaining that for purposes of standing to seek
injunctive relief, “the plaintiff may demonstrate that the
harm is part of a pattern of officially sanctioned behavior,
violative of the plaintiffs’ federal rights,” and that “where
the defendants have repeatedly engaged in the injurious acts
in the past, there is a sufficient possibility that they will
engage in them in the near future” (alterations and quotation
marks omitted)). However, at this stage of the litigation
allegations alone are insufficient to meet B.K.’s burden. We
therefore examine whether she has submitted sufficient
evidence to support her standing to bring this claim.
The confidential medical and placement evidence in the
record is thin, but we conclude that it is sufficient to
corroborate the allegations at this stage. B.K.’s allegations
are supported by materials suggesting that she has in fact
been denied the services she alleges she is entitled to but has
not received. B.K. has also submitted evidence suggesting
that these practices have continued over time and may occur
again. B.K. therefore has standing to bring her Medicaid
claim. To the extent the Directors are correct that these facts
are wrong, that issue may be considered by the district court
on remand. On appeal, however, the materials in the record
adequately support B.K.’s standing. We therefore proceed to
32 B.K. V. SNYDER
considering whether the Medicaid Subclass was properly
certified with B.K. as class representative.
2.
We begin our class certification analysis with
commonality. The Medicaid Subclass poses different
questions from the General Class and Non-Kinship Subclass
in this regard. Unlike the due process claims, which were
clearly alleged on a substantial risk of harm theory, the
foundation of the plaintiffs’ legal theory for the Medicaid
claim was somewhat opaque at class certification, and it
remains opaque on appeal. In addition, while the ultimate
success of any Medicaid theory is irrelevant at this stage,
merits questions nonetheless matter at class certification to
the extent necessary to assess whether Rule 23 has been
satisfied. See Wal-Mart, 564 U.S. at 351. We therefore
cannot affirm the Medicaid Subclass certification without
first carefully examining the nature of the plaintiffs’ claim
under the Medicaid Act.
As we explained in our recitation of the facts, Medicaid
is “a cooperative federal-state program through which the
federal government provides financial assistance to states so
that they can furnish medical care to low-income
individuals.” Cal. Ass’n of Rural Health Clinics, 738 F.3d at
1010. States operate Medicaid plans that must conform with
the federal Medicaid statutes and regulations, and in certain
instances beneficiaries can enforce those federal
requirements through a private action. Id. at 1010, 1013. One
of these federal requirements is that state plans must provide
medical assistance to children within their care. 42 U.S.C.
§ 1396a(a)(10)(A)(i)(I). This medical assistance includes
EPSDT services, id. § 1396d(a)(4)(B), which are defined to
include regular screenings, vision services, dental services,
hearing services, and “[s]uch other necessary health care,
B.K. V. SNYDER 33
diagnostic services, treatment, and other measures described
in subsection (a) of [section 1396d] to correct or ameliorate
defects and physical and mental illnesses and conditions
discovered by the screening services,” id. § 1396d(r). States
must ensure that EPSDT services provided are “reasonably
effective,” and, while they may delegate provision of such
services to other organizations, “the ultimate responsibility
to ensure treatment remains with the state.” Katie A., ex rel.
Ludin v. Los Angeles Cty., 481 F.3d 1150, 1159 (9th Cir.
2007). States must also ensure that children receive EPSDT
services “promptly” and “without any delay caused by the
agency’s administrative procedures.” 42 C.F.R.
§ 435.930(a).
In their complaint, the plaintiffs alleged that the
Directors violated the Medicaid Act by failing to provide
EPSDT services timely. Although alleged as one claim, there
are two possible legal theories that could support it. First, the
plaintiffs might demonstrate that the Directors failed to
provide statutorily mandated EPSDT services. See Katie A.,
481 F.3d at 1159. Second, the plaintiffs might demonstrate
that, even if all required services were eventually provided,
the Directors failed to provide the services with reasonable
promptness. See 42 C.F.R. § 435.930(a); see also Kessler v.
Blum, 591 F. Supp. 1013, 1032–33 (S.D.N.Y. 1984)
(certifying class based on unreasonably long delays in
providing services to all New York State residents). The
plaintiffs here alleged both that the Directors had a practice
of failing to provide EPSDT services and a practice of failing
to provide EPSDT services with reasonable promptness, and
the district court reasoned that commonality existed because
it could adjudicate whether Arizona’s “foster care system’s
practices establish a pattern of non-compliance.”
34 B.K. V. SNYDER
We hold that the district court abused its discretion by
certifying the Medicaid Subclass based on an apparent
misconception of the legal framework for such a claim.
Throughout this litigation, the plaintiffs’ class certification
argument has rested on a misunderstanding of the Medicaid
Act. In the Eighth Amendment context, and in the due
process context relevant to the General Class and Non-
Kinship Subclass, proving a substantial risk of harm is all
that is necessary to prove the claim. See Parsons, 784 F.3d
at 677 (“[A] prison official’s deliberate indifference to a
substantial risk of serious harm to an inmate violates the
Eighth Amendment” (quotation marks and citation
omitted)). The same is not true of a claim under the Medicaid
Act, which must be based on acts or omissions by the state
that actually violate the requirements imposed by the
Medicaid Act. Yet the plaintiffs have both here and in the
district court premised their arguments on the reasoning that
proving risk alone establishes an EPSDT claim. Nothing in
the text of the Medicaid Act or its accompanying regulations
supports this approach because neither suggests that being at
risk of not receiving Medicaid services is itself a Medicaid
violation. The most natural reading of the Act and our
precedents is that a violation occurs when EPSDT services
have failed to be provided in a timely manner. See Katie A.,
481 F.3d at 1157 (“In general, the EPSDT provisions require
only that the individual services listed in § 1396d(a) be
provided”); 42 C.F.R. § 435.930(a). The plaintiffs have thus
conflated the commonality analysis for their due process
claims with the commonality analysis for their Medicaid
claims by erroneously importing the “substantial risk of
harm” standard from Parsons without considering the
distinct nature of the Medicaid Act.
The district court’s analysis on this point appears to have
followed the same reasoning as was offered by the plaintiffs.
B.K. V. SNYDER 35
The district court did discuss commonality in this case by
referring to common questions that were tethered to the
Medicaid Act in particular. But the court identified those
common questions as “whether [DCS and AHCCCS’s]
practices . . . failed to provide timely and adequate access to
. . . services; [] failed to coordinate care to ensure timely
medically necessary . . . treatment . . . ; and [] failed to build
and maintain an adequate capacity and infrastructure of
mental health providers and therapeutic placements.”
Without further findings on the policies or practices that
caused these failures, it is unclear whether the Medicaid
claim can be litigated class-wide, because it is not clear
whether these failures caused the same deprivations of
services or risks of such deprivations across the whole
subclass, or whether some categories of children were
deprived services while others were not. 4 The district court’s
class certification order thus rests on a legal error, which
always constitutes an abuse of discretion. See Sali, 909 F.3d
at 1002.
The plaintiffs nonetheless contend that class certification
should be upheld because a similar, but distinct, risk theory
supports the class. Specifically, the plaintiffs argue that,
because a plaintiff can have standing to challenge a statutory
violation before the violation has occurred, see Cent. Delta
Water Agency v. United States, 306 F.3d 938, 949 (9th Cir.
2002), the class may be certified based on a common
4
Relatedly, it is not clear that the district court specifically
considered whether B.K. is typical of those in the Medicaid Subclass,
and thus whether Rule 23’s typicality requirement is satisfied with
respect to the Medicaid claim. The court concluded only that “every
child in the foster care system under state custody is highly likely to
require medical care” without addressing whether every other child had,
like B.K., been denied adequate medical care or was subject to an
imminent risk of a statutory violation.
36 B.K. V. SNYDER
“significant risk” of an imminent Medicaid violation to all
class members, see id. (identifying “significant risk” as the
correct standard when a plaintiff challenges a future
statutory violation). Under this theory, the plaintiffs argue, it
does not matter whether risk proves a completed Medicaid
violation because they can obtain injunctive relief based on
risk alone.
As a conceptual matter, we agree with the plaintiffs that
Rule 23’s commonality requirement can be satisfied in a
statutory case by a common risk of a future violation that
flows from the same state-wide policy or practice. As
explained above, the relevant question for commonality is
whether every child in the Medicaid Subclass is subjected to
the same state-wide policy or practice that violates the
Medicaid Act. 5 There are two ways that this could occur.
First, the policy or practice could be facially invalid, such as
by directly contravening the Medicaid Act. This theory has
not been presented as the basis for commonality in this case.
Second, the policy or practice could expose every child in
the subclass to a significant risk of an imminent future
Medicaid violation. Under this theory, the plaintiffs are
correct that they may challenge the Medicaid violation
before it has taken place, so long as the requisite “significant
risk” exists, so commonality may exist based on a finding
that all class members are subjected to the same risk. See id.
The plaintiffs’ argument nonetheless fails, however,
because the district court did not make factual findings or
5
By this we do not hold, and our opinion should not be read to
imply, that the plaintiffs must show that they will prevail on their claim
of a Medicaid violation at the class certification stage. Rather, they must
show only that, if they do prevail on the merits, they will be able to
prevail class-wide.
B.K. V. SNYDER 37
exercise its discretion based on this understanding of
commonality when it certified the Medicaid Subclass.
Nowhere in its order is there a factual finding that every
subclass member was subject to an identical “significant
risk” of a future Medicaid violation that would support
injunctive relief. True, we could perhaps infer that such a
finding was made because the district court exercised its
discretion to certify the class after correctly explaining that
“central to the claim here is the question of whether practices
by [DCS] and AHCCCS failed to adhere to the Medicaid
statute.” But we are skeptical we should do so in light of the
legal error we have identified, which appears intertwined
with the district court’s decision to certify this subclass.
Moreover, as an appellate body we cannot presume that the
district court would have made this finding or exercised its
discretion to certify the class had it considered this legal
theory for commonality, and we will not supplant its
discretion by making that determination for ourselves. We
therefore vacate the Medicaid Subclass and remand for
further proceedings. 6 We emphasize that, while we have
6
The partial dissent argues that vacatur is not warranted because
“errors of law that do not affect the district court’s discretionary decision
can be disregarded.” The partial dissent thus argues that we should
uphold the Medicaid Subclass on the alternative risk theory presented by
the plaintiffs. But, as we have explained, doing so would substitute the
district court’s role in certifying the class with our role in reviewing
certification on appeal. The record does not permit us to infer what the
district court must have found as to the Medicaid Subclass by
extrapolation from the General Class.
The partial dissent suggests that we can make such an inference
because “B.K. challenges the exact same state-wide policies that create
the exact same risk of not receiving the exact same medical services,”
and states that the “only difference” between the class claims is that “to
obtain an injunction under the Medicaid statute, B.K. does not have to
prove deliberate indifference, as she must to obtain an injunction under
38 B.K. V. SNYDER
vacated class certification based on the nature of the
litigation to date, nothing in our opinion should prevent the
district court from making new factual findings and
exercising its discretion to recertify the Medicaid Subclass
on remand, if it determines that such action would be
appropriate.
All parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and
REMANDED.
the Due Process Clause.” The plaintiffs’ counsel did make that
representation about the class claims at oral argument. However, the
record belies counsel’s assertion. B.K.’s claim on behalf of the General
Class challenged those harms cognizable under the due process clause
for medical deficiencies and the failure to conduct timely investigations
into reports of abuse or neglect, while B.K.’s claim on behalf of the
Medicaid Subclass challenged those harms cognizable under the
Medicaid Act for EPSDT deficiencies. From these divergent claimed
harms, the district court identified divergent common questions: the
common questions binding the General Class were the constitutionality
of the Directors’ failure to provide physical and dental care, failure to
provide mental and behavioral health care, and failure to conduct
investigations timely, while the common questions binding the Medicaid
Subclass were the legality of the Directors’ failure to provide timely and
adequate access to EPSDT services, failure to coordinate care to ensure
timely EPSDT services, and failure to build and maintain an adequate
capacity of mental health providers and therapeutic placements. The
class claims are thus not the same, and they cannot be treated the same
for purposes of class certification. Only a separate class certification
analysis, recognizing the difference between the due process claims and
the Medicaid claim as we have explained in this opinion, and making
factual findings in conformity with that legal framework, will ensure that
“after a rigorous analysis, . . . the prerequisites of Rule 23(a) have been
satisfied.” See Wal-Mart, 564 U.S. at 350–51 (citation omitted).
B.K. V. SNYDER 39
ADELMAN, District Judge, concurring in part and
dissenting in part:
I concur in all parts of the majority opinion except for
Part III.C.2, in which the majority concludes that the district
court abused its discretion by certifying the Medicaid
subclass. According to the majority, the district court abused
its discretion because it made an error of law when it
assumed that a state-wide policy or practice that exposes all
members of the proposed subclass to a substantial risk of not
receiving Medicaid services violates the Medicaid statute.
But the answer to the legal question of whether exposure to
a risk of harm violates the Medicaid statute does not affect
class certification in this case, where the class seeks only
injunctive relief. So the district court’s potential error of law
did not affect its application of the Rule 23 standards, and
therefore any such error did not result in an abuse of
discretion. Moreover, the district court made findings of fact
that support its decision to certify the Medicaid subclass, and
those findings are not clearly erroneous. Accordingly, I
would affirm the district court’s certification of this subclass.
I.
The majority affirms the district court’s certification of a
class of Arizona foster children who seek to enjoin, under
the Due Process Clause, certain state-wide policies that
allegedly expose them to a substantial risk of not receiving
certain medical services. Oddly, the majority then vacates
the district court’s certification of a subclass of the same
children who seek to enjoin the exact same policies under
the Medicaid statute. Under the majority’s approach, the
district court properly certified, under the Due Process
Clause, a class of all foster children who challenge the state’s
allegedly subjecting them to a substantial risk of not
receiving “timely access to health care, including
40 B.K. V. SNYDER
comprehensive evaluations, timely annual visits, semi-
annual preventative dental health care, adequate health
assessments, and immunizations.” Maj. op. at 21. Yet the
majority concludes that the district court erred in certifying
a subclass of these children who seek to enjoin the same
conduct under the Medicaid statute, even though Medicaid
requires the state to provide them with those very same
medical services. See 42 U.S.C. § 1396d(r) (defining early
and periodic screening, diagnostic, and treatment services to
include regular health, dental, and vision screening and
appropriate immunizations).
According to the majority, this contradictory result is
required because the district court misunderstood the
difference between a claim under the Due Process Clause
and a claim under the Medicaid statute. Under the Due
Process Clause, exposure to a substantial risk of harm is
itself a violation of law, even if the harm does not ultimately
occur. Maj. op. at 34. In contrast, under the Medicaid statute,
a violation is not complete until a child is denied required
medical services (or fails to receive the services at the
required time). Id.
I agree with the majority that this is indeed a difference
between a claim under the Due Process Clause and a claim
under the Medicaid statute. However, this difference has no
relevance to class certification in this case, in which the
plaintiffs seek only injunctive relief. As the majority
acknowledges, a plaintiff may seek injunctive relief to
prevent a statutory violation before it occurs. Maj. op. at 36.
And that is exactly what the plaintiffs are trying to
accomplish with the Medicaid subclass: they are trying to
prevent Medicaid violations before they occur. The way they
are trying to do this is by obtaining a single injunction that
requires the defendants to do things, such as hire more
B.K. V. SNYDER 41
caseworkers, that will ensure that all children receive the
services to which they are entitled under Medicaid. Thus, the
claims of the Medicaid subclass present common questions
that can be answered in one stroke. For example, either
Arizona employs enough caseworkers to ensure that all
children receive the EPSDT services required by Medicaid,
or it does not; there is no need for a child-by-child inquiry to
determine whether Arizona’s staffing policies expose all
children in Arizona’s custody to a substantial risk of not
receiving those services. Cf. Parsons v. Ryan, 754 F.3d 657,
680 (9th Cir. 2014) (“Either ADC employs enough nurses
and doctors to provide adequate care to all of its inmates or
it does not do so; there is no need for an inmate-by-inmate
inquiry to determine whether all inmates in ADC custody are
exposed to a substantial risk of serious harm by ADC
staffing policies.”). If the plaintiffs prove that Arizona does
not employ enough caseworkers, then a single injunction
requiring the state to hire more caseworkers will remove the
substantial risk of Medicaid violations.
The situation would be different if the members of the
Medicaid subclass sought damages. Because exposing a
child to a risk of not receiving required Medicaid services
does not itself violate the child’s rights under Medicaid, the
child could not seek damages until services were delayed or
denied. But under the Due Process Clause, the child could
seek at least nominal damages for a past exposure to a
substantial risk of harm. Thus, if the district court had
certified damages classes under both the Due Process Clause
and the Medicaid statute, the majority would be right to
vacate certification of the Medicaid subclass. To award
damages under the Medicaid statute, the district court would
have to review the facts applicable to each individual class
member to determine whether he or she actually sustained a
Medicaid violation—there would be no common question
42 B.K. V. SNYDER
that could be answered for all class members in one stroke.
But again, in this case, where the plaintiffs seek only
injunctive relief, there are common questions that can be
answered in one stroke: whether the challenged policies—
including failing to hire enough caseworkers—subject all
children in the foster care system to a substantial risk of not
receiving required services, such as timely immunizations.
Thus, the difference in what the plaintiffs must show to
prove violations of the Due Process Clause and the Medicaid
statute is not relevant to certification of the proposed
injunction classes.
The majority concludes that vacatur of the Medicaid
subclass is required because Ninth Circuit cases hold that
“an error of law is a per se abuse of discretion.” Maj. op.
at 13. The majority reads too much into this language. The
majority, in effect, reads this language to mean that if a
district judge misstates any legal principle in the course of
stating its reasons for a discretionary decision, then the
appellate court has no choice but to vacate the decision and
remand for a do-over. But that cannot be what the language
means. Instead, the language must mean that when a district
court errs in its understanding of the legal standards that
govern its discretionary decision, the resulting discretionary
decision must be viewed as an abuse of discretion. But errors
of law that do not affect the district court’s discretionary
decision can be disregarded.
For example, if in this case the district court wrote that
the defendants could be liable under the Due Process Clause
if the plaintiffs proved that they were negligent, the court
would have misstated the law, for, under the Due Process
Clause, the defendants could be liable only if the plaintiffs
proved deliberate indifference. But this error of law would
not have affected the district court’s discretionary decision
B.K. V. SNYDER 43
to certify the class. That is so because the mental state for a
due-process violation is not an element that affects
commonality or any other class-certification requirement—
the defendant’s mental state is amenable to class-wide proof
regardless of whether it is negligence or deliberate
indifference. Thus, even if the district court identified the
wrong mental state during class certification, it would not
follow that the court abused its discretion in certifying a class
under the Due Process Clause. Of course, the district court
would commit reversible error if it later granted relief to the
class based on a negligence theory, but in that case, we
would reverse the judgment granting relief to the class—we
would not reverse the district court’s order certifying the
class.
The district court’s supposed legal error in this case is no
different than the district court’s legal error in my example.
Because the Medicaid subclass does not seek damages, it
does not matter to class certification that a Medicaid
violation does not occur until services are delayed or denied.
Thus, even if the district court thought that exposure to a risk
of not receiving services violates the Medicaid statute, it
would not have made an error of law that affected its
application of the Rule 23 standards to the facts of this case.
II.
The majority acknowledges that the district court
identified common questions that are “tethered to the
Medicaid Act in particular.” Maj. op. at 35. But the majority
then faults the district court for failing to make “further
findings” that clarify “whether [the challenged state-wide
policies and practices] caused the same deprivations of
services or risks of such deprivations across the whole
subclass, or whether some categories of children were
deprived of services while others were not.” Id. at 35. This
44 B.K. V. SNYDER
is a curious statement. The majority seems to be saying that
the district court failed to find that the challenged policies
expose all children in the Medicaid subclass to a substantial
risk of not receiving timely access to health care. But that
flatly contradicts the majority’s reasons for affirming the
district court’s certification of the General Class. There, the
majority found that the district court properly certified the
General Class because the question of whether the
defendants “fail[ed] to provide timely access to health
care”—and thus exposed all foster children to a substantial
risk of not receiving that health care—could be answered in
one stroke. Id. at 21. As I noted above, all members of the
proposed Medicaid subclass are also members of the General
Class, and the health care at issue in the claims of the General
Class are services required by the Medicaid statute. Thus, if,
as the majority concludes, the district court found that the
defendants’ policies and practices expose all children in the
General Class to a substantial risk of not receiving those
services, then it necessarily also found that those same
policies and practices expose all children in the Medicaid
subclass to a substantial risk of not receiving those services.
Therefore, the district court made the findings necessary to
support its decision to certify the Medicaid subclass.
The majority also expresses concern over whether the
district court made the findings necessary to support its
conclusion that B.K. is typical of those in the Medicaid
subclass. The majority states that the district court failed to
address “whether every other child had, like B.K., been
denied adequate medical care or was subject to an imminent
risk of a statutory violation.” Id. at 35 n.4. But whether other
children in the class had been denied adequate medical care
is irrelevant, since the class is not seeking to remedy past
violations. Moreover, “imminent risk of a statutory
violation” is a legal concept that governs standing, not class
B.K. V. SNYDER 45
certification. See, e.g., Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). The majority agrees that because
B.K. has standing to seek injunctive relief on behalf of the
Medicaid subclass, the standing inquiry ends there and there
is no need to separately consider whether each class member
has standing. Maj. op. at 16, 30. Thus, the majority again
contradicts its own reasoning when it faults this district court
for failing to make findings showing that every child in the
Medicaid subclass is at “imminent risk” of a Medicaid
violation.
I also struggle to discern how, in the majority’s view,
B.K.’s claim for injunctive relief could be “typical” of the
claims of all foster children in Arizona for purposes of the
Due Process Clause but not for purposes of the Medicaid
statute. Again, I emphasize that, under both the Due Process
Clause and the Medicaid statute, B.K. challenges the exact
same state-wide policies that create the exact same risk of
not receiving the exact same medical services. The only
difference is that, to obtain an injunction under the Medicaid
statute, B.K. does not have to prove deliberate indifference,
as she must to obtain an injunction under the Due Process
Clause. It is thus logically impossible for B.K.’s claim to be
typical of those in the class for purposes of the Due Process
Clause but not for purposes of the Medicaid statute.
III.
The majority agrees that “Rule 23’s commonality
requirement can be satisfied in a statutory case by a common
risk of a future violation that flows from the same state-wide
policy or practice.” Maj. op. at 36. In this case, the members
of the Medicaid subclass allege that they are subject to a
common risk of not receiving required Medicaid services
that flows from the same state-wide policies and practices,
including failing to hire enough caseworkers. Yet here the
46 B.K. V. SNYDER
majority reasons that we must vacate the district court’s
certification of the Medicaid subclass “because the district
court did not make factual findings or exercise its discretion
based on this understanding of commonality when it
certified the Medicaid subclass.” Maj. op. at 36–37.
I am not sure what the majority means when it says that
the district court did not “exercise its discretion based on this
understanding of commonality.” The district court exercised
its discretion to certify a subclass of all children who are
eligible for certain Medicaid services after finding that the
subclass’s claim presents a common question that can be
answered for all subclass members in one stroke. The
majority does not conclude that, in making this finding, the
district court erroneously applied Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338 (2011), or any other case on
commonality. Thus, the district court had a proper
“understanding of commonality” when it exercised its
discretion to certify this subclass.
Moreover, the district court actually made the findings
of fact necessary to support its finding of commonality for
the Medicaid subclass. The court found that the plaintiffs
were challenging “several statewide practices affecting the
proposed Medicaid Subclass,” including excessive
caseworker caseloads and failure to properly coordinate
services and monitor service providers. The court also found
that the validity of these practices could be determined in one
stroke and without making individualized inquiries into any
specific child’s medical diagnosis or treatment. Thus, the
district court correctly determined that the subclass could be
certified for purposes of seeking injunctive relief against the
challenged policies.
Although the majority correctly notes that the district
court did not expressly state that every subclass member is
B.K. V. SNYDER 47
subject to an identical “significant risk” of a future Medicaid
violation, this does not require that we vacate certification of
the subclass. Like “imminent risk,” “significant risk” is a
legal concept that governs standing, not class certification,
see Cent. Delta Water Agency v. United States, 306 F.3d
938, 949 (9th Cir. 2002), and the majority agrees that B.K.
has standing to seek injunctive relief against the challenged
state-wide policies under the Medicaid statute. The majority
expressly states that the district court correctly found that
B.K. has standing to seek injunctive relief against the
defendants’ policies because they expose her to a risk of not
receiving adequate medical care in the future. Maj op. 17.
Thus, the majority agrees that the district court made the
factual findings necessary to support standing.
As for class certification, there is no requirement that the
district court find that every subclass member is exposed to
an identical significant risk of a future Medicaid violation.
What the district court must find is that the plaintiffs’ claim
involves an allegation that all subclass members are exposed
to a risk of a future Medicaid violation, and that the truth of
this allegation can be decided for all subclass members in a
single stroke. See Parsons, 754 F.3d at 678 (identifying the
“common contentions” as “whether the specified statewide
policies and practices” to which the class members are all
subjected “expose them to a substantial risk of harm”).
Obviously, the defendants dispute that their policies are
deficient and will try to show during the merits phase of the
case that they properly care for all children and therefore
expose none of them to a substantial risk of not receiving
medical care. The plaintiffs do not have to prove, at the class-
certification stage, that the defendants’ policies are in fact
deficient. What the plaintiffs must do at class certification is
show that the question of whether the policies are deficient
can be resolved on a class-wide basis. And here, the district
48 B.K. V. SNYDER
court found that the plaintiffs did that. The court expressly
found that “[e]ven if health issues may differ, every child in
the [DCS] custody is necessarily subject to the same
medical, mental health, and dental care policies and
practices.” The court noted that “[a]ny one child could easily
fall ill, be injured, need treatment, require a diagnostic, need
emergency care, crack a tooth, or require mental health
treatment.” Thus, the district court found that “every single
child in the foster care system faces a substantial risk of
serious harm” if DCS policies fail to ensure the delivery of
appropriate medical care to children in the system.
It is true that the district court made the above findings
in the context of certifying the General Class. But to repeat:
every child in the Medicaid subclass is also a member of the
General Class, and both classes challenge the exact same
policies involving the exact same medical services. Thus, if
the challenged policies subject every child in the General
Class to a substantial risk of not receiving medical services,
they necessarily also subject every child in the Medicaid
subclass to a substantial risk of not receiving those services.
Therefore, the district court’s fact-finding supports its
certification of both the General Class and the Medicaid
subclass.
IV.
In sum, the district court concluded that the claims of the
Medicaid subclass involve common contentions that may be
resolved in one stroke: whether the challenged state-wide
policies and practices subject all subclass members to a
substantial risk of not receiving services required by the
Medicaid statute. In reaching this conclusion, the district
court did not err in applying the commonality standard, base
its conclusion on clearly erroneous findings of fact, or
otherwise abuse its discretion. Accordingly, I respectfully
B.K. V. SNYDER 49
dissent from the majority’s vacatur of the district court’s
certification of the Medicaid subclass.