United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3029
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Michael Postawko; Christopher Baker; Michael C. Jamerson
lllllllllllllllllllllPlaintiffs - Appellees
v.
Missouri Department of Corrections; Corizon LLC; Trinidad Aguilera; John
Williams; FNU Stamps; Thomas Pryor; FNU Proctor; FNU Hardman; FNU
Davison; Paul Jones; FNU Stieferman; T. Bredeman; Julie Fipps; FNU Cofield;
FNC Rucker; Jamie Campbell; Dawn Baker; Geeneen Wilhite; Adrienne Hardy;
Bonnie Boley; Amanda Yates; Julie LNU; J. Doe; Anne Precythe, in her official
capacity as Director of the Missouri Department of Corrections
lllllllllllllllllllllDefendants - Appellants
------------------------------
The Arc of the United States; Center for Children’s Law and Policy; Judge David
L. Bazelon Center for Mental Health Law; Disability Rights Arkansas, Inc.;
Human Rights First; Impact Fund; National Disability Rights Network; National
Immigrant Justice Center; National Juvenile Defender Center; Missouri Protection
& Advocacy Services; Lawyers’ Committee for Civil Rights Under Law
lllllllllllllllllllllAmici on Behalf of Appellee(s)
_____________
Appeal from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: September 27, 2018
Filed: December 6, 2018
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Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.
____________
ERICKSON, Circuit Judge.
Michael Postawko, Christopher Baker, and Michael Jamerson sought class
certification for their claims alleging that the Missouri Department of Corrections
(“MDOC”) and various related defendants violated the Eighth Amendment and Title
II of the Americans with Disabilities Act (“ADA”) by providing inadequate medical
screening and care for chronic Hepatitis C (“HCV”) viral infections. In particular,
they claim the MDOC’s policies expose the class to a substantial risk of serious harm.
The district court1 granted class certification. We granted the Defendants’ Fed. R.
Civ. P. 23(f) petition for interlocutory appeal of the grant of class certification, and
now affirm.
I. Background
Postawko, Baker, and Jamerson (the Named Plaintiffs) are each incarcerated in
the MDOC. They filed an action asserting that they received inadequate medical care
for their HCV infections and sought class certification. The following facts were
contained in the Plaintiffs’ Second Amended Complaint. HCV is a viral infection that
can cause liver damage and other extremely serious side effects. Those who contract
HCV may suffer inflammation of the liver, known as hepatitis. In turn, those with
hepatitis may suffer significantly impaired liver functioning. A decrease in liver
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
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function may result in symptoms such as severe pain, fatigue, difficulty or pain with
urination, and an increased risk of heart attacks.
HCV may be either acute or chronic. While some acute HCV infections are
resolved naturally, others develop into chronic HCV. Individuals suffering from
chronic HCV develop fibrosis of the liver, in which healthy liver tissue is replaced
with scar tissue. Patients are said to suffer from cirrhosis when a significant portion
of the liver has been converted into scar tissue. Cirrhosis is irreversible. Determining
exactly when significant fibrosis amounts to cirrhosis is not always an easy task,
complicating treatment. Cirrhosis often causes “painful complications, including
arthritic pain throughout the body, kidney disease, jaundice, fluid retention with
edema, internal bleeding, easy bruising, abdominal ascites, mental confusion, lymph
disorders, widespread itching, and even more extreme fatigue.” Some of these
complications can cause death if left untreated.
At least half of all those who suffer from chronic HCV will develop either
cirrhosis or liver cancer. Each day without treatment increases the risk that an HCV
infection will either develop into a serious condition such as chronic liver disease,
fibrosis, cirrhosis, or liver cancer, or cause death from liver failure. HCV causes the
death of more American citizens than any other infectious disease.
In recent years, significant medical advancements have been made in the
treatment of HCV, which gives rise to the Plaintiffs’ case. While previous treatments
demonstrated only low rates of success and often caused substantial side effects, new
direct-acting antiviral drugs (“DAA drugs”) are estimated to cure over 90% of patients
who receive them as treatment. DAA drugs are also estimated to cause a 90%
reduction in the risk of liver-related mortality. Those effects, however, may diminish
if treatment is delayed. The medical standard of care put forward by organizations
such as the Infectious Diseases Society of America and the American Association for
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the Study of Liver Diseases now recommends that almost all persons with chronic
HCV receive DAA drug treatment.2
To know whether or not treatment is required, patients must undergo reliable
screening for liver fibrosis or cirrhosis. One method for determining the presence and
degree of cirrhosis or fibrosis is the AST to Platelet Ratio Index, or APRI. The APRI
is derived by analyzing a blood sample of the patient and determining the ratio of a
particular enzyme to the number of platelets. While a high APRI score (above 2.0)
reliably indicates the presence of cirrhosis or severe fibrosis, a low APRI does not
provide conclusive evidence in the other direction; in fact, over half of all patients
suffering from cirrhosis will not have an APRI score of 2.0. For this reason, the use
of other methods (such as liver biopsies) may be required to reliably determine
whether an individual is suffering from fibrosis or cirrhosis.
The rate of HCV infection among the population of the MDOC is estimated to
be at least 10% to 15%. As a highly communicable disease, HCV often spreads
among the incarcerated population. The MDOC has provided DAA medications to
less than one-half of one percent of inmates in their custody with a known HCV
infection.
Plaintiffs alleged that Defendants Precythe, MDOC, and Corizon, LLC have the
following policies or customs:
(1) not providing DAA drug treatment to all inmates with chronic HCV;
(2) using an APRI score, which measures the progression of fibrosis or
cirrhosis, to determine whether a person should be treated;
2
In cases where a patient has a life expectancy that is confidently estimated to
be less than 12 months and treatment of HCV cannot alter that prognosis, the standard
of care recognizes that it is reasonable to refrain from treatment and focus on
palliative care.
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(3) relying exclusively on APRI score to determine the stage of fibrosis
or cirrhosis; rather than using other more accurate methods of
determining its progression through liver biopsies, FIB-4, or FibroScan;
(4) failing to consider providing treatment to HCV-positive inmates
unless they have an APRI score above 2.0 that persists for several
months, even though more than half of persons with cirrhosis will not
have an APRI score at or above 2.0, and they know that AST levels are
transient;
(5) disregarding independent diagnoses of cirrhosis or significant
hepatitis fibrosis in making their treatment decisions; and
(6) basing treatment decisions on cost, rather than on need for treatment.
Plaintiffs alleged that instead of receiving DAA treatment, inmates with HCV but who
have an APRI score below 2.0 are given a blood draw every six months and potential
counseling.
The Defendants in this case opposed class certification, arguing in part that the
Plaintiffs had not submitted sufficient evidence in conjunction with their motion for
certification to allow the district court to conduct the “rigorous analysis” that is
required under Rule 23. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)
(explaining that district courts must engage in a “rigorous analysis” to determine
whether the requirements of Rule 23 have been satisfied); see also Comcast Corp. v.
Behrend, 569 U.S. 27, 33 (2013) (explaining that a party seeking class certification
must “be prepared to prove” the requirements of Rule 23(a) and “must also satisfy
through evidentiary proof at least one of the provisions of Rule 23(b)”). In response,
Plaintiffs attached evidence to their reply to the Defendants’ opposition to class
certification supporting their compliance with Rule 23’s requirements. That evidence
included multiple records indicating that inmates were denied DAA drug treatment
exclusively due to their low APRI scores—even when a Plaintiff had received an
independent diagnosis of cirrhosis. For example, one record stated, “Your APRI score
is 0.562 and per protocol the APRI score needs to be greater than 2 to be considered
for treatment.” The district court granted the Defendants leave to file sur-replies to
address the Plaintiffs’ new evidence.
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The district court granted certification of a class comprised of the following:
All those individuals in the custody of MDOC, now or in the future, who
have been, or will be, diagnosed with chronic HCV, as that term is
defined medically, but who are not provided treatment with direct acting
antiviral drugs.
The district court relied on evidence submitted by both the Plaintiffs and the
Defendants to support its certification decision. For example, the court found that the
size of the proposed class was likely to number at least 2,000 persons, relying on
evidence from one of the Defendants’ experts to determine how many of the roughly
5,000 inmates with HCV were likely to develop chronic HCV. The court found that
evidence submitted by the Defendants bolstered Plaintiffs’ typicality arguments by
confirming the Named Plaintiffs’ allegations that they were diagnosed with chronic
HCV and had not received treatment with DAA drugs. After closely examining the
evidence put forward by both sides regarding the existence of a class wide policy, the
court concluded that the records submitted by the Plaintiffs showing that they were
rejected for DAA treatment and the Defendants’ own evidence referencing
standardized “protocols” for the treatment of chronic HCV satisfied the requirement
that Plaintiffs be able to show that the party opposing the class acted or refused to act
on grounds applying generally to the class. See Fed. R. Civ. P. 23(b)(2).
Plaintiffs initially sought injunctions that would require Defendants to: (1)
“formulate and implement an HCV treatment policy that meets the prevailing standard
of care, including identifying persons with HCV”; (2) “treat members of the class with
appropriate DAA drugs”; and (3) “provide members of the class an appropriate and
accurate assessment of the level of fibrosis or cirrhosis they have, counseling on
drug-drug interactions, and ongoing medical care for complications and symptoms of
HCV.” The district court modified the scope of those proposed injunctions, replacing
the direction to “treat members of the class with appropriate DAA drugs” with a
prohibition on “delaying or denying DAA drug treatment to class members for any
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nonmedical reason,” due to the court’s recognition that DAA treatment might conflict
with other medical indicators. Plaintiffs also seek a declaratory judgment that the
Defendants’ policy of withholding treatment with DAA drugs from inmates diagnosed
with HCV violates the Eighth and Fourteenth Amendments and the ADA. We granted
the Defendants’ Rule 23(f) petition for interlocutory appeal of the district court’s grant
of class certification.
II. Discussion
“To be certified as a class, plaintiffs must meet all of the requirements of Rule
23(a) and must satisfy one of the three subsections of Rule 23(b).” In re St. Jude
Med., Inc., 425 F.3d 1116, 1119 (8th Cir. 2005) (citing Amchem Prod., Inc. v.
Windsor, 521 U.S. 591, 614 (1997); Blades v. Monsanto Co., 400 F.3d 562, 568-69
(8th Cir. 2005)). Plaintiffs carry the burden of showing that they have met those
requirements. See Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013)
(quoting Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994)). District courts must
engage in a “rigorous analysis” to determine whether the requirements of Rule 23
have been satisfied. Falcon, 457 U.S. at 161 (1982). We will “reverse a certification
where there has been an abuse of discretion.” Ebert v. Gen. Mills, Inc., 823 F.3d 472,
477 (8th Cir. 2016) (quoting Smith v. ConocoPhillips Pipe Line Co., 801 F.3d 921,
925 (8th Cir. 2015)). A district court abuses its discretion if it commits an error of
law. Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 995 (8th Cir.
2016) (citing In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 616 (8th Cir.
2011)). “[T]he district court’s factual findings underlying the certification ruling are
reviewed under the ‘clearly erroneous’ standard.” Ebert, 823 F.3d at 477 (quoting
Blades, 400 F.3d at 566).
“[A] decision to certify a class is far from a conclusive judgment on the merits
of the case.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d at 613. For that
reason, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at
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the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455,
466 (2013). “Merits questions may be considered to the extent—but only to the
extent—that they are relevant to determining whether the Rule 23 prerequisites for
class certification are satisfied.” Id. Our primary task is not to determine the final
disposition of a plaintiff’s claims, but instead to examine whether those claims are
appropriate for class resolution. See In re Zurn Pex Plumbing Prod. Liab. Litig., 644
F.3d at 613 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n. 11 (1978))
(explaining that the “tentative” nature of inquiry on a motion for class certification
means that a court “must determine only” if Rule 23’s requirements have been met).
Before considering whether the district court abused its discretion in certifying
the class, we address the Defendants’ argument that the district court treated Rule 23
as a mere “pleading standard” by failing to require additional evidence in support of
the Plaintiffs’ allegations.3 See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011) (“Rule 23 does not set forth a mere pleading standard.”). While the district
court’s order contained dicta stating that it believed the Defendants proposed an
overly stringent evidentiary requirement, the court noted that it would consider the
evidence produced by the parties. Postawko v. Missouri Dep’t of Corr., No.
2:16-CV-04219-NKL, 2017 WL 3185155, at *5 (W.D. Mo. July 26, 2017)
(“Nonetheless, the Plaintiffs did produce evidence and the Court therefore turns to that
evidence.”). The court’s consideration of that evidence makes clear that it did not treat
Rule 23’s requirements as a mere “pleading standard.” The evidence submitted by
both parties was sufficient to permit the district court to conduct a “rigorous analysis”
into whether or not class certification was appropriate. We therefore turn to the
question of class certification.
3
The Defendants also argue that the district court improperly relied on evidence
attached to Plaintiffs’ reply in support of class certification. Admitting the evidence
in the Plaintiffs’ reply and allowing the Defendants the opportunity to file a sur-reply
was an appropriate exercise of discretion in a matter of case management left to the
district court.
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A. Rule 23(a)
Rule 23(a) requires plaintiffs to show that the class satisfies the requirements
of “numerosity, commonality, typicality, and fair and adequate representation.”
Luiken, 705 F.3d at 372. The Defendants challenge the district court’s conclusion that
the numerosity, commonality, and typicality requirements were satisfied.
The district court did not abuse its discretion in concluding that the numerosity
requirement was satisfied. Given the evidence before the district court on the number
of people suffering from chronic HCV under the MDOC’s care, the district court’s
finding that the class was likely to include at least 2,000 people was not clearly
erroneous. A class of that size would make “joinder of all members . . .
impracticable.” Fed. R. Civ. P. 23(a)(1); see Paxton v. Union Nat. Bank, 688 F.2d
552, 559-60 (8th Cir. 1982).
Nor did the district court abuse its discretion in finding that the commonality
requirement was satisfied. To satisfy Rule 23(a)(2), plaintiffs must show their claims
involve a common question or contention “of such a nature that it is capable of
classwide resolution—which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one stroke.”
Sandusky Wellness Ctr., LLC, 821 F.3d at 998 (quoting Wal-Mart, 564 U.S. at 350);
see also Ebert, 823 F.3d at 478 (quoting Wal-Mart, 564 U.S. at 359)). The mere
presence of one or more common questions is not enough; rather, the district court
must examine “the capacity of a class-wide proceeding to generate common answers
apt to drive the resolution of the litigation.” Yates v. Collier, 868 F.3d 354, 361 (5th
Cir. 2017) (emphasis omitted in original) (quoting Wal-Mart, 564 U.S. at 350).
Here the district court ably identified common questions whose answers were
“apt to drive the resolution of the litigation.” For example, the members of the
proposed class must show the Defendants acted “with ‘deliberate indifference to [an
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inmate’s] serious medical needs’” to succeed on their Eighth Amendment claim.
Bender v. Regier, 385 F.3d 1133, 1137 (8th Cir. 2004) (alteration in original) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). As the district court noted, “[A]ll class
members share the common question of whether the Defendants’ policy or custom of
withholding treatment with DAA drugs from individuals who have been or will be
diagnosed with chronic HCV constitutes deliberate indifference to a serious medical
need.” Answering that question will resolve an issue “central to the validity” of each
of the class members’ claims.4
The Defendants argue that the unique medical condition of each member of the
class means that resolving their claims will require a “highly individualized” inquiry.
This misunderstands the nature of the class’s claims. Plaintiffs assert that the failure
of the Defendants to screen properly for a life-threatening disease and provide
appropriate treatment exposes all inmates suffering from chronic HCV to the same
unconstitutional injury. Cf. Allard v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015)
(citations omitted) (“A plaintiff can show deliberate indifference in the level of care
provided in different ways, including showing grossly incompetent or inadequate care,
showing a defendant’s decision to take an easier and less efficacious course of
treatment, or showing a defendant intentionally delayed or denied access to medical
care.”). While a putative class seeking damages for such claims might struggle to
satisfy Rule 23(a)(2), a class certified under Rule 23(b)(2) seeking only injunctive and
declaratory relief suffers no such difficulty.5 Here the physical symptoms eventually
4
Plaintiffs’ ADA claim clears the same hurdle. As the district court stated,
“[A]ll class members share the common mixed factual and legal question of whether
Defendants use the alleged policies to discriminate against inmates in need of medical
treatment based on their chronic HCV diagnoses.”
5
The Defendants’ comparison to Wal-Mart supports, rather than weakens,
Plaintiffs’ claims. In Wal-Mart, the plaintiffs’ discrimination claims included
damages and involved the exercise of discretion by different managers all over the
country. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1048 (2016)
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suffered by each class member may vary, but the question asked by each class
member is susceptible to common resolution. See Yates, 868 F.3d at 363 (affirming
class certification even where no two class members had “the exact same risk,” as the
relevant policy was alleged to pose an unconstitutional risk of serious harm to all class
members); Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (explaining that
“although a presently existing risk may ultimately result in different future harm for
different inmates . . . every inmate suffers exactly the same constitutional injury when
he is exposed to a single . . . policy or practice that creates a substantial risk of serious
harm”).
The typicality requirement was also satisfied. Typicality “is fairly easily met
so long as other class members have claims similar to the named plaintiff.” DeBoer
v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995) (citing Paxton, 688 F.2d at
562). “Factual variations in the individual claims will not normally preclude class
certification if the claim arises from the same event or course of conduct as the class
claims, and gives rise to the same legal or remedial theory.” Alpern v. UtiliCorp
United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996) (citing Donaldson v. Pillsbury Co.,
554 F.2d 825, 831 (8th Cir. 1977)). The Defendants argue that the Named Plaintiffs’
claims require individualized inquiries, such that their claims are not typical of the
class. This argument overlaps significantly with their arguments on commonality.
See Wal-Mart, 564 U.S. at 349 n.5 (quoting Falcon, 457 U.S. at 157-158 n.13)
(explaining that the “commonality and typicality requirements of Rule 23(a) tend to
merge”). We therefore reject the argument for similar reasons. In this suit for
(explaining that the plaintiffs in Wal-Mart “did not provide significant proof of a
common policy of discrimination to which each employee was subject”). By contrast,
here the Plaintiffs allege the existence of a single policy related to HCV treatment and
APRI scores that involves no discretionary decision-making. Cf. Bouaphakeo v.
Tyson Foods, Inc., 765 F.3d 791, 797 (8th Cir. 2014), aff’d and remanded, 136 S. Ct.
1036 (2016) (“Unlike [in Wal-Mart], Tyson had a specific company policy . . . that
applied to all class members.”).
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prospective injunctive and declaratory relief, the potential for minor “factual
variations” does not undermine the district court’s conclusion that the violation
allegedly suffered by the Named Plaintiffs is typical of that suffered by the class as
a whole. See DeBoer, 64 F.3d at 1174–75 (explaining that claims may be “typical of
the remainder of the class given the nature of the injunctive relief sought,” even when
the amount of harm might differ if plaintiffs had instead brought a suit for damages).
The district court did not clearly err in finding that the Named Plaintiffs are exposed
to the same alleged risk under the Defendants’ policies as all other inmates suffering
from HCV. The Named Plaintiffs’ claims are therefore typical of the class.
B. Rule 23(b)(2)
Plaintiffs must demonstrate that “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2). For certification to be appropriate, the class claims
must be “cohesive.” Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1035 (8th Cir.
2010) (quoting In re St. Jude Med., Inc., 425 F.3d at 1121). “Rule 23(b)(2) applies
only when a single injunction or declaratory judgment would provide relief to each
member of the class.” Wal-Mart, 564 U.S. at 360.
This case involves claims that the Defendants uniformly applied a screening and
treatment policy for HCV that was so inadequate that it amounted to a constitutional
violation as to each and every incarcerated person who either suffered or will suffer
from HCV. If those claims are true, they describe a party acting “on grounds
generally applicable to the class.” The district court engaged in a “rigorous analysis”
of the evidence put forward by both Plaintiffs and Defendants before concluding that
there was sufficient evidence that the party opposing the class “acted or refused to act”
on grounds that apply generally to the class. As part of its analysis, the court closely
examined the medical records submitted by the plaintiffs and considered
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inconsistencies within the Defendants’ evidence concerning the existence of a uniform
policy.
Whether or not the class will be able to show that each proposed injunction is
warranted on the merits is not before us. Rather, we are tasked only with determining
whether the district court abused its discretion by holding that the proposed class
action satisfies the requirements of Rule 23(b)(2). The district court’s modified
proposed injunctions identify relief that would respond to the alleged harm on a
uniform, generally applicable basis. Cf. Yates, 868 F.3d at 368 (affirming class
certification under Rule 23(b)(2) for claims seeking injunctive relief where “[a]ll
inmates, regardless of age or health,” were subject to the same policy on climate
control and were “(allegedly) harmed in essentially the same way—i.e., by exposure
to a substantial risk of serious harm because of exposure to excessive heat”). While
the Defendants may continue to challenge the existence and parameters of the alleged
policy at trial, at this stage they are unable to show that the district court abused its
discretion in holding that sufficient evidence of a common policy existed to comply
with Rule 23(b)(2).
C. Federalism Interests
The Defendants urge us to hold that this class certification decision implicates
principles of federalism regarding the authority of a state to administer its own
prisons. We are mindful “of the special delicacy of the adjustment to be preserved
between federal equitable power and State administration of its own law.” Elizabeth
M. v. Montenez, 458 F.3d 779, 784 (8th Cir. 2006) (internal quotation mark omitted)
(citing Rizzo v. Goode, 423 U.S. 362, 378 (1976)). But see Brown v. Plata, 563 U.S.
493, 511 (2011) (“Courts may not allow constitutional violations to continue simply
because a remedy would involve intrusion into the realm of prison administration.”).
For that reason, in Elizabeth M. we stated that a certification decision did not pay
“sufficient heed” to federalism interests where the class action sought “sweeping
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injunctive relief which, if granted, would require the district court to mandate and
monitor detailed programs governing nearly every facet of the State’s operation” of
three residential facilities. 458 F.3d at 783, 788. The injunctions sought in this case
are not nearly so broad and relate only to a single policy regarding one particular
illness. As we are satisfied that the Plaintiffs have satisfied Rule 23’s requirements,
we may wait to consider any further concerns about the balance between state and
federal authority until (and if) the district court imposes an equitable remedy.
D. Plaintiffs’ Claim under the ADA
The Defendants also challenge the district court’s ruling on the sufficiency of
the Plaintiffs’ ADA pleadings. The limited nature of our review of class certification
under Rule 23(f) does not allow a defendant to make expansive arguments on the
merits of the underlying appeal. See Mims v. Stewart Title Guar. Co., 590 F.3d 298,
306 (5th Cir. 2009) (“Given our limited jurisdiction in this Rule 23(f) appeal, we have
no authority to review the district court’s conclusion that the plaintiffs have stated a
claim for these alleged overcharges under this theory.”); In re Delta Airlines, 310 F.3d
953, 960 (6th Cir. 2002) (“The Rule 23(f) appeal should not become a vehicle for
early review of a legal theory that underlies the merits of a class action.”). A careful
review of the Defendants’ ADA-related arguments reveals that they do not relate to
the propriety of certification under Rule 23. Instead, they present merits challenges
to the Plaintiffs’ claims (arguing that under the ADA plaintiffs may not challenge the
inadequacy of the medical services offered). Whatever the merits of the Defendants’
arguments, they do not clearly relate to whether class certification is appropriate under
Rule 23. We therefore conclude that Defendants’ ADA arguments lie outside our
jurisdiction on this Rule 23(f) appeal.
III. Conclusion
We affirm the certification decision of the district court.
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