United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 13, 2006 Decided July 14, 2006
No. 05-7004
CONSTANCE S. RICHARDS, ADMINISTRATOR OF THE ESTATE OF
LOUISE T. STEVENS, ON BEHALF OF HERSELF AND ALL OTHER
PERSONS SIMILARLY SITUATED,
APPELLANT
v.
DELTA AIR LINES, INC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 99cv03368)
Leonard N. Bebchick argued the cause and filed the briefs
for appellant.
Frederick C. Schafrick argued the cause for appellee. With
him on the brief was Daniel O. Hanks.
Before: RANDOLPH and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge RANDOLPH.
2
RANDOLPH, Circuit Judge: This is an appeal from the
judgment of the district court dismissing a class-action
complaint. The main question is whether the court abused its
discretion in refusing to certify the class, because the suit was
predominately or exclusively for monetary damages, contrary to
the requirements of Federal Rule of Civil Procedure 23(b)(2),
and because common questions of law or fact did not
predominate, as Rule 23(b)(3) requires.
I.
In January 1999, Louise T. Stevens, the original plaintiff in
this case, lost a single piece of luggage on the last leg of an
international flight terminating in Atlanta, Georgia. She filed a
claim with Delta Air Lines, seeking $1044 as the fair-market
value of her luggage and its contents. Delta wrote to Stevens
that because her “journey involve[d] international travel,
liability for loss [of her baggage] is governed by [the Warsaw
Convention]” – the treaty limiting the liability of air carriers for
the international air transport of people and property. See
Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929 (“Warsaw
Convention”), 49 Stat. 3000, T.S. No. 876 (reprinted in 49
U.S.C. § 40105 note).1 Delta informed Stevens that its liability
1
Montreal Protocol No. 4 to the Warsaw Convention, which
took effect in March 1999, repealed the weight requirement. See
Montreal Protocol No. 4 to Amend the Convention for the Unification
of Certain Rules Relating to International Carriage by Air signed at
Warsaw on Oct. 12, 1929, as Amended by the Protocol Done at The
Hague on Sept. 28, 1955, Sept. 25, 1975, S. EXEC. REP. NO. 105-20,
at 22-23, 2145 U.N.T.S. 36 (entered into force Mar. 4, 1999). The
entire Warsaw Convention has now been superseded. See Convention
for the Unification of Certain Rules for International Carriage by Air,
May 28, 1999, S. TREATY DOC. NO. 106-45, 1999 WL 33292734
(entered into force Nov. 4, 2003).
3
for the loss of her luggage “is based on the weight of the
checked luggage and is limited to the actual value of the
property not to exceed $20.00 per kilogram.” See Warsaw
Convention art. 22(2). The letter continued: “Since [Delta’s]
maximum allowable weight is thirty-two kilograms per bag, our
check for $640.00, which is the maximum reimbursement, will
be mailed under separate cover.” When Stevens received the
check, she deposited it.
Relying on Cruz v. American Airlines, Inc., 193 F.3d 526
(D.C. Cir. 1999), Stevens brought a class-action suit against
Delta. Cruz held that an air carrier could not invoke the Warsaw
Convention’s liability limitation for lost or damaged luggage
unless the carrier recorded the weight of the luggage on the
passenger luggage tickets. Id. at 530; see Warsaw Convention
art. 4(4). Stevens alleged that Delta did not do this as a matter
of practice and was therefore liable for the full amount of the
lost or damaged property. The putative class consisted of people
who, between December 17, 1997, and March 3, 1999,2 received
from Delta less than the fair-market value of their lost or
damaged luggage on the ground that the Warsaw Convention
limited Delta’s liability. The parties stipulated that the
purported class consisted of about 3000 people. The complaint
requested a declaratory judgment stating that Delta unlawfully
availed itself of the Warsaw Convention’s limitations and was
liable for the fair-market value of class members’ luggage. The
complaint also sought an award of damages for each class
member equal to the difference between the value of his luggage
and the amount Delta paid him. Delta filed an answer and then
moved for summary judgment, asserting the affirmative defense
2
The dates correspond to the end of the two-year statute of
limitations of Warsaw Convention art. 29 and the day before the
repeal of the Convention provisions requiring air carriers to record
baggage weight. See supra note 1.
4
of accord and satisfaction to Stevens’s claim. Stevens cross-
moved for partial summary judgment on the ground that Delta
was not entitled to the defense.
While these motions were pending, the district court
granted Stevens’s motion to file an amended class-action
complaint. In this First Amended Complaint, Stevens asked the
court to declare “that Delta [has] (i) unlawfully availed itself of
[the Warsaw Convention’s] liability limit . . . and (ii) is liable
for the fair value of such lost or damaged luggage.” Stevens
also requested an injunction requiring Delta to process each
class member’s claims for lost or damaged luggage and “to pay
each class member compensation for his or her loss or damage
in an amount not less than the difference between what Delta in
good faith determines is the fair value of such loss or damage
and the amount heretofore paid . . . plus compensatory interest
on the amount of such loss or damage.” Such an injunction,
Stevens alleged, would merely require Delta to carry out its duty
as a common carrier. In the alternative, Stevens sought “an
award of damages . . . in an amount equal to the difference
between the fair value of [each class member’s] lost or damaged
checked baggage and the lesser amount paid them by Delta” for
those who wished “to contest Delta’s determination of fair
value” or for the class as a whole, if the court did not award
injunctive relief. As in the original complaint, Stevens alleged
that the class was proper under Rules 23(b)(1) and (b)(2).
The district court denied the parties’ motions for summary
judgment because Delta’s accord-and-satisfaction defense
presented genuine issues of material fact. Stevens then moved
for class certification. She argued that the class was “a classic
illustration of a 23(b)(2) class . . ., seek[ing] appropriate final
injunctive and declaratory relief with respect to the class as a
whole.” In so arguing, Stevens withdrew the portion of her First
Amended Complaint that sought, in the alternative, an award of
5
damages. Delta countered that the complaint still was
exclusively or predominately for monetary damages.
Constance S. Richards, having been substituted as plaintiff
upon Stevens’s death, moved “to enlarge” the previous class-
certification motion. Still pressing certification pursuant to Rule
23(b)(2), Richards also sought certification under Rule 23(b)(3)
– as a fallback if her Rule 23(b)(2) motion failed – because
common questions of law and fact predominated over any
individual issues.
The district court denied class certification. It found that
Richards satisfied the Rule 23(a) requirements of numerosity,
commonality, typicality, and adequacy of representation, but
failed to satisfy either Rule 23(b)(2) or (b)(3). The court
reasoned that she “effectively seeks a declaratory judgment that
Delta owes monetary damages and an injunction requiring Delta
to pay them.” Citing In re Veneman, 309 F.3d 789, 790 (D.C.
Cir. 2002), the court held that Rule 23(b)(2) certification “is not
appropriate where plaintiff’s claims are predominately for
monetary relief.” As to Rule 23(b)(3), the court explained that
“the plaintiff must show that ‘questions of law or fact common
to the members of the class predominate . . . and that a class
action is superior to other available methods for the fair and
efficient adjudication of the controversy.’” (quoting FED. R. CIV.
P. 23(b)(3)). Richards failed to meet this standard because
“Delta’s accord and satisfaction affirmative defense . . . will
require the application of varying state laws and a case-by-case
factual inquiry.” Richards moved for reconsideration,3 and the
3
Richards argued, as to Rule 23(b)(3), that either federal
common law, as embodied in U.C.C. § 3-311, or Georgia state law
governed Delta’s accord-and-satisfaction defense. This eliminated,
according to Richards, the need for individual factual inquiries or the
possibility that varying state laws would apply to the defense.
6
district court denied her petition.
Richards then settled her individual claim with Delta,
“releas[ing Delta of] any and all individual claims” but
preserving “any other claim, defense, or right that either party or
any putative class member might have in respect of this
litigation, including Plaintiff’s class claim.” Having denied
class certification, the district court dismissed the suit. Richards
appeals solely on the ground that the court improperly denied
class certification.
II.
There is some doubt about our jurisdiction although the
parties do not mention the subject. Richards settled her personal
claim with Delta. She was the only class representative. Does
this render the appeal from the denial of class certification
moot? The issue is an open one in this circuit, see Walsh v.
Ford Motor Co., 945 F.2d 1188, 1191 n.5 (D.C. Cir. 1991), and
in the Supreme Court, see U.S. Parole Comm’n v. Geraghty, 445
U.S. 388, 404 n.10 (1980).
A case may become moot “when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable interest
in the outcome.” Id. at 396 (quoting Powell v. McCormack, 395
U.S. 486, 496 (1969)) (internal quotation marks omitted). A
class representative has two legally cognizable interests: “One
is the claim on the merits; the other is the claim that he is
entitled to represent a class.” Id. at 402. When the first of these
interests expires, the class representative’s ability to appeal a
denial of class certification depends on his “‘personal stake’ in
the class certification claim.” Id.
We know, because the Supreme Court has told us, that
when a class representative’s claims expire involuntarily, the
7
class representative still “retains a ‘personal stake’ in obtaining
class certification sufficient” to appeal a denial of class
certification entered before the representative’s claims expired.
Id. at 404; see also Deposit Guar. Nat’l Bank, Jackson, Miss. v.
Roper, 445 U.S. 326, 336-40 (1980). The representative has at
minimum an interest in “spreading [the] litigation costs among
numerous litigants with similar claims.” Geraghty, 445 U.S. at
403; see also Roper, 445 U.S. at 334 n.6, 336.
We see no difference between those who voluntarily settle
individual claims and those who have their individual claims
involuntarily extinguished, provided the litigant retains the same
interests identified by the Court in Geraghty, a Rule 23(b)(2)
case,4 and in Roper, an action under Rule 23(b)(3). So long as
the plaintiff retains a “personal stake” in “shift[ing] to successful
class litigants a portion of those fees and expenses” incurred as
the purported class representative, the plaintiff has a sufficient
interest to appeal the denial of class certification. Roper, 445
U.S. at 334 n.6, 336; see Geraghty, 445 U.S. at 403. Other
circuits agree. See Potter v. Norwest Mortgage, Inc., 329 F.3d
608, 613-14 (8th Cir. 2003); Toms v. Allied Bond & Collection
Agency, Inc., 179 F.3d 103, 105 (4th Cir. 1999); Love v.
4
Geraghty sought an order invalidating parole guidelines.
The district court treated his complaint as a habeas corpus petition and
held that Rule 23 applied therefore only by analogy. Geraghty v. U.S.
Parole Comm’n, 429 F. Supp. 737, 740 (M.D. Pa. 1977) (citing
United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir.
1974)). The Third Circuit reversed, characterizing the claim as one for
declaratory relief and finding Rule 23 applicable. 579 F.2d 238, 243,
252 (3d Cir. 1978). In the Supreme Court, Geraghty argued that his
class action came within Rule 23(b)(2). See Br. of Resp’t at 23, U.S.
Parole Comm’n v. Geraghty, No. 78-572 (Jul. 15, 1979)
(“[R]espondent followed the suggestions made by the Court in prior
cases and brought this case as a class action under Rule 23(b)(2) of the
Federal Rules of Civil Procedure.”).
8
Turlington, 733 F.2d 1562, 1565 (11th Cir. 1984). Of course, a
plaintiff who, in the settlement agreement, relinquishes “any and
all” of his claims, including class claims, or agrees to dismiss
the entire “action,” has ceded any interest he once had and can
no longer appeal a denial of class certification. Walsh, 945 F.2d
at 1190-91; accord Toms, 179 F.3d at 105-06; Dugas v. Trans
Union Corp., 99 F.3d 724, 728-29 (5th Cir. 1996); see also
Potter, 329 F.3d at 614.
In settling her individual claim, Richards did not extinguish
all of her interest in the class claim against Delta. Rather, she
released Delta only of “any and all individual claims that she
might have” had. Richards and Delta stipulated that the
settlement of Richards’s “individual claims” was not “in
derogation of any other claim, defense, or right that either party
or any putative class member might have in respect of this
litigation, including Plaintiff’s class claim.” This was sufficient
for Richards to retain a personal stake in the class claim,
including the interest in shifting attorney fees and other
litigation costs. We therefore have jurisdiction to consider the
merits of Richards’s challenge to the district court’s refusal to
certify her proposed class.
III.
To obtain class certification, a class plaintiff has the burden
of showing that the requirements of Rule 23(a) are met and that
the class is maintainable pursuant to one of Rule 23(b)’s
subdivisions. See FED. R. CIV. P. 23(b); Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 613-14 (1997); Love v. Johanns, 439
F.3d 723, 727 (D.C. Cir. 2006); McCarthy v. Kleindienst, 741
F.2d 1406, 1414 n.9 (D.C. Cir. 1984). The district court
concluded that Richards satisfied the requirements of Rule
23(a), but not Rule 23(b)(2) or (b)(3) – the two Rule 23(b)
subdivisions she relied upon. Our review is for abuse of
9
discretion or legal error. See Garcia v. Johanns, 444 F.3d 625,
631 (D.C. Cir. 2006) (quoting Wagner v. Taylor, 836 F.2d 578,
586 (D.C. Cir. 1987)).
Rule 23(b)(2) permits class actions seeking final injunctions
or corresponding declaratory relief for the entire class. Unlike
class actions for monetary relief under Rule 23(b)(3), there are
no additional requirements of notice and opt-out rights, see FED.
R. CIV. P. 23(c)(2)(A), (B), and the plaintiff need not establish
that a class action would be superior to individual actions or that
common legal and factual questions predominate. See In re
Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002).
As to Rule 23(b)(2), the district court found that Richards
“effectively seeks a declaratory judgment that Delta owes
monetary damages and an injunction requiring Delta to pay
them.” Such a request rendered Rule 23(b)(2) certification
improper. A court may certify a class pursuant to Rule 23(b)(2)
only 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.” FED. R. CIV. P.
23(b)(2). Subsection (b)(2) was not intended to “extend to cases
in which the appropriate final relief relates exclusively or
predominantly to monetary damages.” FED. R. CIV. P. 23
advisory committee notes; see In re Veneman, 309 F.3d at 792.
If recovery of damages is at the heart of the complaint,
individual class members must have a chance to opt out of the
class and go it alone – or not at all – without being bound by the
class judgment. But when injunctive relief benefits the entire
class, this option is less important; an injunction prohibiting a
defendant’s action against “the class as a whole” would halt the
action regardless whether some of those affected might have
withdrawn from the suit if given the option. See In re Veneman,
309 F.3d at 792. Thus, when the relief sought would simply
10
serve as a foundation for a damages award, see Bolin v. Sears,
Roebuck & Co., 231 F.3d 970, 978 (5th Cir. 2000); Lukenas v.
Bryce’s Mountain Resort, Inc., 538 F.2d 594, 595-96 (4th Cir.
1976), or when the requested injunctive or declaratory relief
merely attempts to reframe a damages claim, see In re Sch.
Asbestos Litig., 789 F.2d 996, 1008 (3d Cir. 1986), the class may
not be certified pursuant to Rule 23(b)(2).
Richards sought, on behalf of her proposed class, a
declaratory judgment that Delta wrongly availed itself of the
Warsaw Convention’s baggage-liability limit and “is liable for
the fair value of such lost or damaged baggage,” and an
injunction requiring Delta to process each class member’s
baggage claim and “to pay each class member compensation for
his or her los[t] or damage[d]” baggage equal to the difference
between the fair value of the baggage and the amount Delta
paid.5 Though framed in terms of declaratory and injunctive
relief, this class claim is for monetary damages. “Almost
invariably . . . suits seeking (whether by judgment, injunction,
or declaration) to compel the defendant to pay a sum of money
to the plaintiff are suits for ‘money damages,’ as that phrase has
traditionally been applied, since they seek no more than
compensation for loss resulting from the defendant’s breach of
legal duty.” Great-West Life & Annuity Ins. Co. v. Knudson,
534 U.S. 204, 210 (2002) (quoting Bowen v. Massachusetts, 487
U.S. 879, 918-19 (1988) (Scalia, J., dissenting)) (internal
5
While we may not – and do not – inquire into the strength or
weakness of the merits of Richards’s class-action claim, Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974), “‘the class
determination generally involves considerations that are enmeshed in
the factual and legal issues comprising the plaintiff’s cause of action,’”
Gen. Tele. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982) (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978)) (internal
quotation marks omitted).
11
quotation marks omitted; alteration in original). The injunction
and declaration Richards seeks is no exception. No matter how
she phrases it, what she wants is a judicial decree directing Delta
to pay the class members the damages each is due.6 Yet the rule
has long been that “[a] plaintiff cannot transform a claim for
damages into an equitable action by asking for an injunction that
orders the payment of money.”7 Jaffee v. United States, 592
F.2d 712, 715 (3d Cir. 1979); see also In re Arthur Treacher’s
Franchisee Litig., 689 F.2d 1137, 1144-45 (3d Cir. 1982);
Schlosser v. Commonwealth Edison Co., 250 F.2d 478, 480-81
(7th Cir. 1958); Sims v. Stuart, 291 F. 707, 707-08 (S.D.N.Y.
1922) (L. Hand, J.).8
6
Her requested relief raises an issue unnecessary to resolve.
The general rule is that injunctive relief will not issue when an
adequate remedy at law exists. See Younger v. Harris, 401 U.S. 37,
43-44 (1971); accord Nat’l Taxpayers Union, Inc. v. United States, 68
F.3d 1428, 1436 (D.C. Cir. 1995). Here an award of damages to each
class member in an amount equal to the difference between what Delta
paid and the fair value of each person’s luggage would provide an
adequate legal remedy. Mertens v. Hewitt Assocs., 508 U.S. 248, 255
(1993) (“Money damages are, of course, the classic form of legal
relief.”); accord Great-West Life & Annuity, 534 U.S. at 210.
7
Declaratory relief under Rule 23(b)(2) must correspond to
“final injunctive relief,” so that “as a practical matter [the declaratory
relief] affords injunctive relief or serves as a basis for later injunctive
relief.” FED. R. CIV. P. 23 advisory committee notes.
8
There is a split among circuits on how a court determines
whether monetary relief predominates in a Rule 23(b)(2) class suit.
Compare Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th
Cir. 1998) (“[M]onetary relief predominates in (b)(2) class actions
unless it is incidental to requested injunctive or declaratory relief.”);
Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 447-50 (6th
Cir. 2002); Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001);
Lemon v. Int’l Union of Operating Eng’rs, Local No. 139, 216 F.3d
12
We also agree that Richards was not entitled to maintain a
Rule 23(b)(3) class action, which requires that “questions of law
or fact common to” class members “predominate over any
questions affecting only individual members, and that a class
action is superior to other available methods for the fair and
efficient adjudication of the controversy.” FED. R. CIV. P.
23(b)(3). Throughout the proceedings in the district court – in
the original and amended complaints, and in motions and
memoranda – the plaintiff sought class certification only
pursuant to subsections (b)(1) and (b)(2).9 Not until three years
into the litigation, after Delta had filed its opposition to the
motion for class certification and months after discovery on this
question had closed, did Richards suggest the prospect of a
(b)(3) class. That was far too late and, for that reason alone, the
district court would have been warranted in denying certification
under Rule 23(b)(3). The local rules require class action
complaints to identify the subsection of Rule 23 “under which
the suit is claimed properly to be maintained as a class action.”
LCvR 23.1(a)(1); see Cruz v. Am. Airlines, Inc., 356 F.3d 320,
577, 580-81 (7th Cir. 2000), with Robinson v. Metro-North Commuter
R.R., 267 F.3d 147, 162-67 (2d Cir. 2001) (adopting a more ad hoc
balancing approach to whether monetary damages predominate);
Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir. 2003). The issue is
not presented in this case. The “monetary relief [here] is effectively
the sole remedy sought.” Bolin, 231 F.3d at 978; see In re
Monumental Life Ins. Co., 365 F.3d 408, 416 (5th Cir. 2004) (“The
question whether the proposed class members are properly seeking
[declaratory or injunctive] relief is antecedent to the question whether
that relief would predominate over money damages.”).
9
The amended complaint stated that if the class were certified
under (b)(1) or (b)(2), there might come a time “possibly” when “a
supplemental and subclass” could be certified under (b)(3). But
Richards withdrew this contingent claim when she moved for class
certification.
13
329-30 (D.C. Cir. 2004). Even when Richards eventually
brought up Rule 23(b)(3), she never made clear what exactly she
had in mind. Without invoking Rule 23(c)(4)(A), cf. Castano v.
Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996), her
motion for class certification stated that it would be
“inappropriate” to have “damage awards for members . . .
considered or disposed of on a class action basis.” On the other
hand, she stated in the same document that “a common forum
for contesting the amount of damages should be afforded to
plaintiffs who elect to reject a Delta compensation offer.” To
confuse matters even more, Richards’s opening brief in this
court seems to abandon the “common forum” idea and states
instead that if a class member is “dissatisfied with an ultimate
Delta offer or non-offer of compensation” then the member
“could choose to institute an individual and separate damage
action in a forum of the member’s choosing.” Br. for Appellant
9. Yet she now insists that the relief sought on behalf of this
proposed (b)(3) class is the same as the relief sought for her
(b)(2) class – which, as we have discussed, includes an
injunction ordering Delta to pay each class member the damages
due. Given this state of affairs we are “unable to conclude that
it has been clearly demonstrated . . . that a class action was the
superior method for resolving this controversy.” McCarthy v.
Kleindienst, 741 F.2d 1406, 1415 (D.C. Cir. 1984).
Affirmed.