In re: Veneman, Ann

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2002 Decided October 29, 2002

No. 02-5021

In re: Ann M. Veneman, Secretary of Agriculture,
Petitioner

Appeal from the United States District Court
for the District of Columbia
(No. 99cv03119)

Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for petitioner. With him on the
briefs were Roscoe C. Howard, Jr., U.S. Attorney, and Robert
M. Loeb, Attorney, U.S. Department of Justice.

Joseph M. Sellers argued the cause for respondents. With
him on the brief were Suzette M. Malveaux, Alexander Pires,
Jr., David Frantz, and Phillip L. Fraas.

Michael L. Foreman, Elaine R. Jones, Norman J. Chach-
kin, Paul M. Smith, Ian Heath Gershengorn, and John
Dossett were on the brief for amici curiae in support of
respondents.

 Before: Tatel and Garland, Circuit Judges, and Williams,
Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: Rule 23(b)(2) of the Federal Rules of
Civil Procedure permits certification of class actions not
"exclusively or predominantly [for] money damages." This
petition for interlocutory review presents the following ques-
tion: In a case involving requests for both monetary and
equitable relief, may a district court certify a Rule 23(b)(2)
class as to equitable relief only without first determining
whether, looking at the complaint as a whole, plaintiffs'
monetary claims predominate over their equitable claims?
Although this issue is both unsettled and fundamental--
factors that may justify interlocutory review pursuant to Rule
23(f)--we nevertheless deny the petition because the critical
questions required to resolve it are entirely unbriefed and
because we are satisfied that the issue will not escape appel-
late review.

I.

The United States Department of Agriculture administers
several farm credit and benefit programs under the direction
of its Farm Service Agency ("FSA"). See Consolidated Farm
and Rural Development Act, 7 U.S.C. s 1921 et seq.; 7 C.F.R.
s 2.42(28). Farmers seeking FSA loans or subsidies apply to
local county committees made up of farmers elected by other
farmers. Pigford v. Veneman, 206 F.3d 1212, 1214 (D.C. Cir.
2000). If the county committee approves the application, the
farmer receives the benefit. If the committee denies the
application, the farmer may appeal to a state committee and
then to a federal review board. Pigford v. Glickman, 182
F.R.D. 341, 343 (D.D.C. 1998). Farmers believing that their
applications have been denied on the basis of race can file
complaints either directly with the FSA or with the Depart-
ment. Id.

Alleging that the Department discriminated against them
on the basis of race in its administration of these programs,
seven Native-American farmers filed this action in the United
States District Court for the District of Columbia on behalf of

themselves and others similarly situated. The lawsuit fol-
lowed the Department's release of a self-critical report that
had been prompted by longstanding accusations of racial
discrimination in the administration of agricultural programs.
Civil Rights Action Team, USDA, Civil Rights at the United
States Department of Agriculture 2-3 (1997), available
at http://www.usda.gov/news/civil/cr_next.htm. Noting that
"discrimination in program delivery ... continues to exist to
a large degree unabated," id. at 2, the report found signifi-
cant disparities between the Department's treatment of mi-
nority and nonminority farmers, such as "lower participation
and lower loan approval rates for minorities in most [agency]
programs," and substantial inequalities in loan processing
rates, including "disparities between nonminority loan pro-
cessing and American Indian loan processing" in certain
states, id. at 21. Since "complaints [were] processed slowly,
if at all," id. at 25, farmers found "little relief" in the
Department's complaint process, "which, if anything, often
ma[de] matters worse," id. at 22. According to the report,
Department officials did little to improve the Department's
record of civil rights enforcement; indeed, "during the early
and mid-1980's USDA leaders had effectively dismantled
USDA's civil rights apparatus," and "numerous reorganiza-
tions" since that time had left "civil rights at USDA ... in a
persistent state of chaos." Id. at 47 (internal quotation
marks omitted). Minority farmers, the report concluded,
"have lost significant amounts of land and potential farm
income as a result of discrimination by [USDA] programs."
Id. at 30.

Proceeding under the Equal Credit Opportunity Act, 15
U.S.C. ss 1691-1691f, the Administrative Procedure Act, 5
U.S.C. s 706(2)(A), and Title VI of the Civil Rights Act of
1964, 42 U.S.C. s 2000d et seq., the farmers, seeking both
equitable and monetary relief, allege discrimination in the
Department's handling of applications and in its failure to
investigate and process their discrimination complaints.
Four similar suits have been filed: An action on behalf of
African-American and Latino farmers was dismissed,
Williams v. Glickman, No. 95-1149 (D.D.C. filed June 16,

1995); another action brought by a class of African-American
farmers has been settled, see Pigford v. Veneman, 292 F.3d
918 (D.C. Cir. 2002); and actions on behalf of Latino farmers,
Garcia v. Veneman, No. 00-2445 (D.D.C. filed Oct. 13, 2000),
and female and other farmers alleging discrimination on the
basis of age, sex, marital status, race, color, national origin, or
religion, Love v. Veneman, No. 00-2502 (D.D.C. filed Oct. 19,
2000), remain pending in district court.

In a motion for judgment on the pleadings, or in the
alternative, for summary judgment, the Department argued
(among other things) that the farmers' claims regarding its
failure to process their complaints were actionable under
neither the APA nor the ECOA. The district court denied
the motion without prejudice, and the farmers moved to
certify a class consisting of "[a]ll Native-American farmers
and ranchers who believe that USDA discriminated against
them on account of their race in their applications for, or
USDA's administration of, USDA farm programs ... and
who complained of that discrimination to the USDA."

Under the Federal Rules of Civil Procedure, a class can be
certified if it meets Rule 23(a)'s four requirements--numeros-
ity, commonality, typicality, and adequacy of representation--
and if it falls into one of the three categories of class actions
described in Rule 23(b). Fed. R. Civ. P. 23(a), 23(b); Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 613-16 (1997). Rules
23(b)(2) and (b)(3)--the two categories at issue in this case--
have different requirements depending primarily on the na-
ture of the relief sought. Rule 23(b)(2) certification is appro-
priate where plaintiffs seek declaratory or injunctive relief for
class-wide injury. Such certification is particularly well-
suited for civil rights actions where "a party is charged with
discriminating unlawfully against a class." Fed. R. Civ. P.
23(b)(2) advisory committee notes. According to the Adviso-
ry Committee Notes, however, (b)(2) certification is not prop-
er where "the appropriate final relief relates exclusively or
predominantly to money damages." Id.

In contrast to Rule 23(b)(2), class certification pursuant to
Rule 23(b)(3) is appropriate even where plaintiffs seek only

monetary damages so long as "questions of law or fact
common to the members of the class predominate over any
questions affecting only individual members, and ... 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). Certification pursuant to Rule 23(b)(3), however,
comes with certain procedural requirements: Because mem-
bers of a class seeking substantial monetary damages may
have divergent interests, due process requires that putative
class members receive notice and an opportunity to opt out.
See Fed. R. Civ. P. 23(c)(2); Robinson v. Metro-North Com-
muter R.R. Co., 267 F.3d 147, 165-66 (2d Cir. 2001). By
contrast, Rule 23(b)(2) imposes no similar requirements be-
cause a class seeking primarily equitable relief for a common
injury is assumed to be a cohesive group with few conflicting
interests, giving rise to a presumption that adequate repre-
sentation alone provides sufficient procedural protection. See
Robinson, 267 F.3d at 165 (noting the presumption that an
adequate class representative in a (b)(2) action "will generally
safeguard absent class members' interests and thereby satisfy
the strictures of due process").

Seeking both equitable and monetary relief, the farmers
asked the district court to certify a so-called "hybrid" class: a
(b)(2) class for their equitable claims and a (b)(3) class for
their monetary claims. In support of this request, the farm-
ers relied on language in Eubanks v. Billington, 110 F.3d 87
(D.C. Cir. 1997), which held that district courts may grant
opt-out rights in (b)(2) class actions either by certifying a
(b)(3) class as to claims for monetary relief or by exercising
their discretion under Rule 23(d)(5) to allow opt-outs from the
(b)(2). Id. at 96. The district court, however, certified only a
(b)(2) class and--central to this case--instead of determining
whether plaintiffs' monetary claims predominate over their
equitable claims, the district court limited the class to pursu-
ing equitable relief, explaining that it lacked a sufficiently
developed factual record to rule on the appropriate treatment
of the monetary claims. Keepseagle v. Veneman, No.
99-3119, mem. op. at 36 (D.D.C. Dec. 12, 2001). Also, the
class the district court certified--all Native-American farm-

ers and ranchers who filed a discrimination complaint with
the Department between January 1, 1981, and November 24,
1999--was narrower than the one the farmers had sought.
Keepseagle v. Veneman, mem. op. at 36.

Proceeding under Fed. R. Civ. P. 23(f), which allows courts
of appeals, "in their discretion," to entertain interlocutory
appeals of class certification decisions, the Department now
mounts two challenges to the district court's class certification
decision. First, the Department claims that the farmers'
complaint-processing allegations fail Rule 23(a)'s commonality
and typicality requirements. Second, the Department argues
that the district court lacked authority to certify a (b)(2) class
without first determining whether the "appropriate final relief
relates exclusively or predominately to money damages."
Fed. R. Civ. P. 23(b)(2) advisory committee notes.

II.

Before considering the merits of the Department's petition,
we must address the farmers' argument that we lack jurisdic-
tion because the petition was untimely. Rule 23(f) gives
litigants ten days to petition the court of appeals for review of
an order granting or denying class certification. In this case,
the Department filed its 23(f) petition on October 12, fourteen
calendar days after the district court issued its class certifica-
tion order. Citing Fed. R. App. P. 26(a), which requires
inclusion of all calendar days when computing filing periods,
the farmers contend that the Department's petition was late.

Although we agree that the Federal Rules of Appellate
Procedure govern the filing of Rule 23(f) petitions, the farm-
ers rely on the wrong rule. Rule 5(a), which governs peti-
tions for permission to appeal, does not refer to Rule 26(a),
but instead instructs litigants to file their petitions within
"the time specified by the statute or rule authorizing the
appeal." In this case, the rule "authorizing the appeal" is
Rule 23(f) of the Federal Rules of Civil Procedure. The civil
rules have their own time-computation rule, which excludes
Saturdays, Sundays, and legal holidays when "computing any
period of time prescribed or allowed by [the civil] rules."

Fed. R. Civ. P. 6(a). Because Rule 23(f) is a rule of civil
procedure, Rule 6(a) governs the timing of 23(f) petitions, as
every one of our sister circuits to have considered the matter
has held. See Shin v. Cobb County Bd. of Educ., 248 F.3d
1061, 1065 (11th Cir. 2001); see also In re Sumitomo Copper
Litig., 262 F.3d 134, 137 n.1 (2d Cir. 2001); Lienhart v.
Dryvit Sys., Inc., 255 F.3d 138, 142 n.1 (4th Cir. 2001); Blair
v. Equifax Check Servs., Inc., 181 F.3d 832, 837 (7th Cir.
1999).

Under Rule 6(a), the petition was timely. Although the
Department filed it fourteen calendar days after the district
court issued its class certification order, those fourteen days
included four weekend days, and 14 - 4 = 10.

III.

This brings us to the question of whether to exercise our
discretion under Rule 23(f) to entertain the Department's
challenges to the district court's class certification order. In
this circuit, interlocutory review of class certification decisions
pursuant to Rule 23(f) is ordinarily appropriate in three
circumstances: (1) when a "questionable" class certification
decision creates a "death-knell situation" for either party; (2)
when the certification decision presents "an unsettled and
fundamental issue of law relating to class actions ... that is
likely to evade end-of-the-case review"; and (3) when the
certification decision is manifestly erroneous. In re Lorazep-
am & Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C.
Cir. 2002). Even if a case falls into none of these categories,
we will grant 23(f) interlocutory review in "special circum-
stances," though we have cautioned that such review should
be "granted rarely." Id. at 105-06.

If the Department had challenged only the district court's
application of Rule 23(a), we would have no trouble rejecting
the petition, for it falls into none of the Lorazepam catego-
ries. Beginning with the first category, we do not see how
the certification of a class limited to injunctive and declarato-
ry relief can create the sort of high-stakes situation that puts
"substantial pressure on the defendant to settle independent
of the merits of the plaintiffs' claims." Id. at 102 (citing

Blair, 181 F.3d 832 at 834). The Department insists that the
district court's limitation of the class to equitable relief is
"irrelevant" because "this case is, at bottom, about compensa-
tory relief for past wrongs," creating a "threat of 'hydraulic'
pressure to settle." Petitioner's Reply Br. at 12. As this
case now stands, however, the farmers may not seek compen-
satory relief, so the Department faces no possibility of a
massive damage judgment. A "death knell" will come, if at
all, when and if the district court authorizes the class to
proceed with its monetary claims.

Nor do we see anything either novel or manifestly errone-
ous (the second and third Lorazepam categories) about the
district court's conclusion that the farmers' allegations con-
cerning the Department's "failure to properly process, ac-
count for, and/or investigate discrimination complaints,"
which "affected each class member," satisfy Rule 23(a)'s
commonality and typicality requirements. Keepseagle, mem.
op. at 19-20. According to the Department, the farmers'
complaint-processing allegations are a sham: the farmers, it
says, designed those allegations "solely to manufacture the
illusion of commonality" for class-certification purposes and
"have no intention of actually litigating this claim." Petition-
er's Opening Br. at 29-30. As the district court observed,
however, nothing so far bears out the Department's dire
predictions, Keepseagle, mem. op. at 22 n.8, and we think that
the district court is in a far better position than we to
evaluate claims of this sort. The Department's concern that
the farmers will one day abandon their complaint-processing
claim is too speculative to justify Rule 23(f) review.

In support of its challenge to the district court's 23(a)
findings, the Department also argues that the farmers' com-
plaint-processing claim is actionable under neither the ECOA
nor the APA. But this argument, which the Department also
made in its unsuccessful motion for judgment on the plead-
ings, has no bearing on the question of class certification. As
the Supreme Court has long held, courts may not examine
whether "plaintiffs have stated a cause of action or will
prevail on the merits" in order to determine whether class
certification is appropriate. Eisen v. Carlisle & Jacquelin,

417 U.S. 156, 178 (1974) (internal quotation marks and cita-
tion omitted). To entertain the Department's claims concern-
ing ECOA and APA coverage, now dressed up as challenges
to class certification, would "inappropriately mix the issue of
class certification with the merits." Lorazepam, 289 F.3d at
107.

The Department's challenge to the district court's applica-
tion of Rule 23(b) presents a closer question. According to
the Department, the district court lacked authority to certify
only some of the plaintiffs' claims while leaving the rest "in
limbo--not dismissed, but merely deferred." Petitioner's Re-
ply Br. at 27. Unlike the other questions the Department
raises in its petition, the question of whether district courts
may certify a (b)(2) class solely for purposes of equitable
relief without first determining if plaintiffs' claims for mone-
tary relief predominate over their equitable claims is both
unsettled--we know of no circuit that has addressed that
issue--and fundamental. It is not, however, likely to evade
end-of-the-case review. And while we might nonetheless
regard the case as presenting "special circumstances," Lora-
zepam, 289 F.3d at 106, we think the question inappropriate
for 23(f) review because the parties have failed to raise the
issues critical to its resolution.

Rule 23(c)(4)(A), which authorizes certification of class ac-
tions "with respect to particular issues," would at first glance
seem to provide authority for the district court's order in this
case. The issue, however, is not so clear. To begin with,
Department counsel pointed out at oral argument that the
Advisory Committee Notes to Rule 23(b)(2) provide that
certification "does not extend to cases in which the appropri-
ate final relief relates exclusively or predominantly to money
damages." Fed. R. Civ. P. 23(b)(2) advisory committee notes
(emphasis added). If by using the word "cases," the Advisory
Committee meant to refer to the entire set of issues that a
complaint raises, then partial certification under 23(c)(4)(A)
could occur only after the district court makes the (b)(2)
predominance determination. But if, as counsel for the farm-
ers contended at oral argument, the phrase "appropriate final
relief," not the word "cases," functions as the operative
portion of the Advisory Committee Notes, then where the
district court limits the class to seeking injunctive and declar-

atory relief (as the district court did here), the appropriate
final relief in the "case" is equitable, not monetary.

More important, the introduction to subsection (c)(4) pro-
vides that certification "with respect to particular issues" may
be ordered only "where appropriate." As the court observed
at oral argument, whether partial certification is "appropri-
ate" turns at least in part on its effect on two concerns
surrounding Rule 23 class actions: first, how class certifica-
tion affects the due process rights of absent class members to
have their own day in court, and second, whether parties are
bound to the judgment. As to the first point, the Supreme
Court established in Phillips Petroleum Co. v. Shutts, 472
U.S. 797 (1985), that (1) before a court can bind absent class
members "concerning claims wholly or predominantly for
money damages," due process requires that they receive
adequate notice and an opportunity to opt out of the action,
id. at 811-13, and (2) the defendant in such an action has a
right ("standing") to demand that adequate notice be given to
class members, so as to avoid a situation where the defendant
would be bound by a loss yet class members would not be
bound by its win, id. at 804-06. To complicate matters
further, the Supreme Court has expressly left open the
question of whether a judgment in a no-opt-out class action
(like the one the district court certified here) can ever pre-
clude absent class members from bringing their own individu-
al lawsuits for monetary damages. Ticor Title Ins. Co. v.
Brown, 511 U.S. 117 (1994) (per curiam) (raising, without
deciding, the question of whether due process forbids enforc-
ing a class-action judgment against an absent plaintiff who
wishes to bring her own individual lawsuit for money dam-
ages, where the class was properly certified as a no-opt-out
class action). Second, the constitutional concerns raised in
Shutts and Ticor may also implicate the concerns underlying
Rule 23. The drafters of the 1966 amendments, which gave
rise to the rule as we know it today, were concerned with the
binding effect of class actions and the due process protections
required for parties to be bound. Fed. R. Civ. P. 23 advisory
committee notes (noting the need to "assure procedural fair-
ness, particularly giving notice to members of the class, which

may in turn be related in some instances to the extension of
the judgment to the class"). They drafted the rule to clarify
that "all class actions maintained to the end as such will
result in judgments including those whom the court finds to
be members of the class, whether or not the judgment is
favorable to the class." Id.

Because of the importance of these issues to the interpreta-
tion of Rule 23 and because their implications for this case
are entirely unbriefed, we think it best to decline to exercise
our Rule 23(f) discretion to consider the Department's argu-
ments at this time. Following full briefing in the district
court and any revised order issued by that court, the Depart-
ment remains free to seek appellate review, either in another
23(f) petition or otherwise.

The Department's petition is denied.

So ordered.