                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2004

Chiang v. Secretary Agri
Precedential or Non-Precedential: Precedential

Docket No. 03-3488




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"Chiang v. Secretary Agri" (2004). 2004 Decisions. Paper 274.
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                                                               v.
                   PRECEDENTIAL
                                              ANN M. VENEMAN, In her Official
IN THE UNITED STATES COURT OF                      Capacity as Secretary of
            APPEALS                            The United States Department of
     FOR THE THIRD CIRCUIT                              Agriculture,
         _______________
                                                                            Appellant
           NO. 03-3488
          ______________
                                                *Amended pursuant to Clerk's Order
 GAIL WATSON CHIANG; *LYNDA                            dated 11/24/03
     ALEXANDER MUHAMMAD;                            _________________
    JACQUELINE CARR; DENISE
   PITTMAN; CARMEN MCALPIN-
      CLARKE; KAREN HUNT;                     On Appeal From The District Court of
     THERESA COLLINGWOOD-                                the Virgin Islands
   MORRIS; DAVID C. NICHOLAS;                            (No. 00-cv-00004)
      PRECIOUS YEARWOOD;                      District Judge: Honorable Thomas K.
 FREDERICK FREEMAN; BEVERLY                                    Moore
   RAWLINS; ANDREA CARROLL;                             _______________
    RONALD J. MITCHELL; JACK
    DANIEL; CHRISTINE DANIEL;                     Argued December 10, 2003
     ANESTA E. GORE; VANETA                   Before: NYGAARD, BECKER, and
   MARTIN; CARMEN GONZALEZ;                     STAPLETON, Circuit Judges.
    M. NARTEL GREEN; SHIRLEY
    WILLIAMS; MARIA BLYDEN;                        (Filed September 20, 2004)
 GONZALO RIVERA; BLANCHE R.
   RAWLINS; RHEA L. JOHNSON;
    MARILYN RIVERA; KEITH R.                 DOUGLAS B. INMAN, ESQ.
 WILLIAMS; AL BRUNN; EMERYL                  (ARGUED)
    CHRISTOPHER; CHARLES G.                  Sayre & Chavez
  JOHNSON; VELSINA L. GEORGE;                7 Church Street
    KALEEN CLOUDEN; EUNICE                   Christiansted, St. Croix
       GOMES; RUTH DUBLIN;                   USVI 00820
  KIMBERLEY L. OLIVER; ELENA
HERBERT; LAWRENCE CHRISTIAN;                       Attorney for Appellees
     MARJORIE JOHN; LAVERNE
   WILLIAMS; REVEREND JAMES                  PETER D. KEISLER, ESQUIRE
 CHRISTIAN, on behalf of themselves          Assistant Attorney General
     and all others similarly situated       DAVID M. NISSMAN, ESQUIRE

                                         1
United States Attorney                              Credit Opportunity Act, 15 U.S.C. § 1691
ERNEST BATEGNA, ESQUIRE                             et seq. (“ECOA”), which makes it
Assistant United States Attorney                    “unlawful for any creditor to discriminate
ROBERT M. LOEB, ESQUIRE                             against any applicant, with respect to any
CHARLES W. SCARBOROUGH,                             aspect of a credit transaction . . . on the
ESQUIRE, COLETTE G. MATZZIE,                        basis of race, color, religion, national
ESQUIRE (ARGUED)                                    origin, sex or marital status, or age.” 15
Attorneys, Appellate Staff                          U.S.C. § 1691(a). To establish a prima
Civil Division, PHB Room 9149                       facie case under ECOA the class members
U.S. Department of Justice                          must show that (1) plaintiff was a member
601 D. Street, NW                                   of a protected class; (2) plaintiff applied
Washington, DC 20530-0001                           for credit from defendants; (3) plaintiff
                                                    was qualified for the credit; and (4) despite
       Attorneys for Appellant                      qualification, plaintiff was denied credit.
                                                    See Matthiesen v. Banc One Mortgage
       ______________________                       Corp., 173 F.3d 1242, 1246 (10th Cir.
                                                    1999).
      OPINION OF THE COURT
                                                        According to Chiang, the regional
      _______________________
                                                    USDA office in Vermont, which had
                                                    jurisdiction over the U.S. Virgin Islands,
BECKER, Circuit Judge.                              kept Virgin Islanders “out of the system”
                                                    by implementing a “phony,” illegal
    This is an interlocutory appeal by the
                                                    waiting list on which thousands of Virgin
defendant, United States Secretary of
                                                    Islanders, almost all of whom were Black,
A g r i c u l tu r e , A n n M . V en e m an
                                                    Hispanic, or female, had their names
(“Veneman”) pursuant to Fed. R. Civ. P.
                                                    placed instead of being given an actual
23(f), in which she challenges a class
                                                    loan application in violation of USDA
certification granted by the District Court
                                                    policy, instructions, and regulations, .
in a civil rights case brought against her in
                                                    These applicants were told that they would
her official capacity. The lead plaintiff is
                                                    receive applications when they became
Gail Watson Chiang (“Chiang”), the
                                                    available but, even after years of waiting,
representative of the putative class, who,
                                                    most never did. According to Chiang, not
along with thirty-eight other plaintiffs,
                                                    only were applications available, but the
alleges systematic discrimination against
                                                    Virgin Islands was the only locality in the
persons who are “Black, Hispanic, women,
                                                    United States where this type of waiting
and/or Virgin Islanders,” over a period of
                                                    list was implemented. Thus, Chiang
nineteen years, in the administration of
                                                    submits, the so-called “waiting list” was
loan programs intended to help low
                                                    not a true waiting list at all, but was rather
income rural families obtain homes and
                                                    a device used to deny class members loan
make repairs to existing homes.          The
                                                    applications altogether.
claims are made primarily under the Equal

                                                2
    Chiang also alleges that the USDA                        female and /or Virgin Islanders who
administrators in Vermont further                            applied or attempted to apply for,
instructed Virgin Islands officials to give                  and/or received, housing credit,
applications only to those class members                     services, home ownership, assistance,
on the waiting list who became a                             t r a in i n g , a n d / o r e d u c a t io n a l
“problem,” and then told local employees                     opportunities from the USDA through
“you know what to do with it.” This                          its Rural Development offices (and
message was uniformly understood by                          predecessor designations) located in
local USDA officials to mean that the                        the U.S. Virgin Islands at anytime
applications were not to be processed, but                   between January 1, 1981 and January
rather that actions were to be taken to                      10, 2000, and who believe they were
make it difficult or impossible for the                      discriminated against on the basis of
inquiring parties to meet qualifications and                 race, gender or national origin.
deadlines, the intention being that the
                                                             In Veneman’s submission, the District
applicants would become so frustrated that
                                                         Court abused its discretion when it
they wou ld withdra w th eir loan
                                                         certified what she describes as a sprawling
applications, or that delays would result in
                                                         and unmanageable class action seeking
disqualification or other justification for
                                                         $2.8 billion in damages from the USDA.
denial of the applications. In Chiang’s
                                                         She complains that the class definition is
submission, this became known in the
                                                         overbroad, and that it is internally
local USDA office as the “Impossible
                                                         inconsistent insofar as it encompasses
Yes”: an application would be given out,
                                                         every Virgin Islander who applied or
but the USDA would make it impossible
                                                         attempted to apply for any of the different
for the putative applicant to have the
                                                         Rural Housing Service (“RHS”) 1 credit
application fairly processed.
      Furthermore, Chiang alleges corruption
in the administration of the loan program                1
                                                              The Rural Housing Service is an
in the Virgin Islands—in the rare instances              agency of the USDA. Formerly known
in which loans were approved—through                     as the Rural Housing and Community
favoritism to local contractors who were                 Development Service, “RHS” is a
not building homes in a safe and                         successor agency to the Farmers Home
workmanlike manner. This resulted, it is                 Administration, which ceased to exist in
said, in placing Virgin Islanders into                   1994. RHS operates a broad range of
i n a d e q u ate a n d u n s a f e h o u s in g ,       programs to address rural America’s
r e pr e se n ting a fu rt he r f o rm o f               need for single-family and multi-family
discrimination against Virgin Islanders.                 housing as well as health facilities, fire
    At the behest of Chiang, the District                and police stations, and other community
Court granted a Rule 23(b)(3) certification              structures. To promote its goals, RHS
to a class of                                            administers direct loan guarantees and
                                                         grants through state and local offices
     All persons who are Black, Hispanic,                located throughout the nation.

                                                     3
and benefit programs during a nineteen-             chart for our consideration which she
year period (from 1981 to 2000), including          claims was the primary document used by
those with non-credit claims, those with            USDA employees to determine eligibility,
untimely claims, and Caucasian loan                 contending that those employees did not
applicants who the complaint alleges                have any particular knowledge or skill, but
benefitted from the discrimination.                 rather, were mere clerks charged with
                                                    matching income to columns on the chart.
    In Veneman’s view, not only is the
                                                    According to Chiang, the evaluations of
class so sweeping that the threshold
                                                    eligibility constituted neither in-depth nor
requirements of Rule 23(a) likely are not
                                                    discre tionary assess men ts of th e
satisfied, but even if the class definition
                                                    circumstances of each applicant, and hence
were deemed to meet Rule 23(a)’s
                                                    are subject to common proof.
standards, the class fails Rule 23(b)(3)’s
more stringent requirements because                     Veneman is surely correct that the
common issues do not predominate over               plaintiff in an ECOA case must establish
individual ones and class treatment would           that he or she was qualified for loan
not be superior to individual adjudications.        eligibility as part of the prima facie case.
Central to Veneman’s contention is the              The record developed thus far leaves us in
argument that to prevail on his or her              some doubt as to the validity of Chiang’s
individual claims under ECOA, each class            contentions about the susceptibility of
member would need to demonstrate that               eligibility determinations to common
the USDA’s proffered reason for denial of           proof. Nevertheless, we believe that this
credit (or loan for defective property) was         question will be best resolved by the
a pretext for discrimination on the basis of        District Court in the first instance. We
race, gender or national origin. According          have no doubt, however, that the question
to Veneman, liability on these claims can           of the existence vel non of the “phony”
only be determined through case-by-case             waiting list—and associated techniques
inquiries into the specifics of each                used to prevent Virgin Islanders from
transaction, and most particularly, the loan        gaining access to loan applications and
eligibility of each putative class member.          loans—is a matter appropriate for class
If the class member could not have                  determination. We will therefore affirm
obtained the loan, then he or she cannot            that portion of the District Court order
succeed in his or her claim of                      certifying the class pursuant to Rule
discrimination, regardless of the existence         23(c)(4), which allows a class action to be
of the alleged waiting list.                        maintained with respect to particular
                                                    issues— in this case the waiting list— while
    Chiang counters this with the
                                                    simultaneously reserving for the District
contention that determination of loan
                                                    Court the authority to determine whether
eligibility would, in fact, be susceptible to
                                                    eligibility for loans can be certified as a
class proof because those determinations
                                                    question suitable for class adjudication.
were purely ministerial in nature. In her
supplemental exhibit 1, Chiang submits a                We are not troubled by the seeming

                                                4
internal contradiction in the class                    the eligibility facet of liability, we will
definition because, inasmuch as the                    vacate the District Court’s order in all
plaintiffs’ primary claim is that they were            other respects.
discriminated against for being Virgin
                                                              I. Facts and Procedural History
Islanders, a cognizable class, we will treat
the claim as such and modify the District                  We begin with a recitation of the
Court’s certification order accordingly.               allegations supporting class certification,
While some claims allege individual                    derived both from the first amended
gender and race discrimination, the                    complaint and from extensive informal
number of such complaints appears to be                class action discovery (largely exchange of
small, and we think that certifying a class            documents). We note that it is not
of Virgin Islanders best captures the                  necessary for the plaintiffs to establish the
plaintiffs’ arguments. Since 76% of the                merits of their case at the class
population of the U.S. Virgin Islands is               certification stage, and that, in determining
black and 14% is Hispanic, it is possible              whether a class will be certified, the
that the claims of racial and national origin          substantive allegations of the complaint
discrimination may overlap. We therefore               must be taken as true. See Eisen v.
leave to the plaintiffs the option to seek to          Carlisle & Jacquelin, 417 U.S. 156, 177-
amend the class definition to allege racial            78 (1974).
and gender, rather than national origin,
                                                           Between January 1, 1981 and January
discrimination; any decision on such
                                                       10, 2000, thousands of Virgin Islanders
amendment will be for the District Court
                                                       requested loan applications from the
in the first instance. Additionally, for
                                                       USDA in order to purchase or make
reasons explained infra, we will further
                                                       repairs on homes. As noted above, Chiang
modify the certification order to eliminate
                                                       alleges that all class members who
the reference to the class members’
                                                       requested home loan applications were
“belief” in discrimination, thereby
                                                       forced to put their names on an illegal
removing such a subjective criterion from
                                                       waiting list instead of actually being given
the class definition.
                                                       an application.2 Chiang contends that the
     As the foregoing suggests, the issues to
be dealt with on a class basis do not                  2
                                                            From 1995 to 1999, Chiang worked
present predominance, superiority, or                  as a special assistant to the Governor of
manageability problems. See Fed. R. Civ.               the Virgin Islands. Although she filed
P. 23(b)(3). Neither do we find any merit              this suit as a private citizen, she explains
in Veneman’s untimeliness claims, which                that she first became aware of the extent
are not properly before us at this stage of            of the discrimination problem due to her
the case. Finally, because the other                   governmental position which led her to
aspects of the case are not suitable for               receive “hundreds, if not thousands, of
class determination, i.e., inclusion of the            oral complaints from Virgin Islanders
c l a ss - b a s e d c l a im s o f c o r r u pt       regarding what was perceived as a
administration, and, on the present record,            longstanding and widespread systematic

                                                   5
existence of this list, generated in the               According to Chiang, each named
USDA regional office in Vermont which              plaintiff in this law suit filed a
had jurisdiction over the Virgin Islands,          discrimination complaint with the USDA
was in direct contravention of USDA                prior to this action, or authorized one to be
instructions and regulations, and that no          filed on his or her behalf.4 In March 1997,
equivalent list existed anywhere else in the
United States. Chiang represents that the          record to support the contention that the
justification USDA gave for placing class          amount of funding is tied to the number
members on the waiting list was that (1)           of persons who seek loans.             The
the USDA did not have any applications             methodology for allocation of housing
and (2) applications were not being given          funds can be found in 7 C.F.R. §§
out because the USDA had no money                  1940.552 and 1940.565. The formula is
available for loans. However, Chiang               based on (1) the State’s percentage of the
contends that applications were, in fact,          National number of rural occupied
available, and that a certain low level of         substandard units; (2) the State’s
funding was also available despite her             percentage of the N ational rural
allegation that the USDA failed to seek or         population; (3) the State’s percentage of
obtain proper levels of funding for rural          the National rural population in places of
housing loans for each of the 19 years at          less than 2,500 population; (4) the State’s
issue.3                                            percentage of the National number of
                                                   rural households between 50 and 80
discrimination” and that she was                   percent of the area median income; and
“inundated with complaints of USDA                 (5) the State’s percentage of the National
discrimination from all quarters.”                 number of rural households below 50
                                                   percent of the area median income. On
                                                   this record, it appears that none of these
3
     Chiang also contends that because             factors are derived from the USDA’s
class members were placed on the                   application database.
alleged waiting list, they were never                  To the extent that Chiang alleges an
entered into the official USDA database            unfair allocation of funds to the Virgin
which tracks the number of loan                    Islands, as opposed to discriminatory
applications in each jurisdiction. She             behavior on the part of the USDA in
further submits that due to that lack of           administering those funds, she seeks
data entry, the level of need for funding          relief in the wrong forum and would be
was never properly assessed and so was             better served directing her complaint
never allocated to the Virgin Islands.             elsewhere.
The lack of funding, she maintains, was
                                                   4
then used as a reason for putting class                Those authorizations were apparently
members on the waiting list, thereby               directed to Chiang in the course of her
keeping them out of the database and               employment in the Governor’s office.
creating a vicious circle.                         When she fielded complaints about the
    There is, however, no basis in the             USDA’s alleged discriminatory behavior,

                                               6
Chiang and 48 other named plaintiffs filed         requirements of Fed. R. Civ. P. 23(a) had
an administrative class program complaint          not been met. Veneman also argued that
of discrimination with the USDA’s Office           the class definition was fatally overbroad
of Civil Rights in Washington, D.C. The            because it failed to define the class by
named plaintiffs claim never to have               reference to any discriminatory practice,
received any type of acknowledgment of             included untimely claims and claims
their complaints from the USDA.                    arising out of RHS’s non-credit benefit
However, in response to mounting                   programs, and was not limited by race or
discrimination complaints, the USDA sent           gender as it included all Virgin Islanders.
an investigative team to the Virgin Islands.
                                                        On February 28, 2003, the District
T h e U S DA team conducted a n
                                                   Court filed its decision certifying the class
investigation and documented what
                                                   under Rule 23(b)(3).6 The Court found
Chiang styles the “Highway to Nowhere”
                                                   that the FAC alleged “a pattern and
in an internal USDA report entitled “Civil
                                                   practice of discrimination against each
Rights Compliance Review for the U.S.
                                                   class member.” It concluded that the
Virgin Islands, October 19-29, 1997.” The
                                                   pattern and practice manifested itself in
report—which was never officially
                                                   three ways: (1) some members were
adopted by the USDA—identified two
                                                   denied an application package and told to
specific techniques used to deny class
                                                   put their names on an unlawful waiting
members access to the loans.5 Those
                                                   list; (2) RHS provided other members with
techniques were (1) creating the phony,
                                                   applications, but then made it impossible
illegal “waiting list,” and (2) implementing
                                                   for them to obtain credit by deliberately
the “impossible yes” scheme. (See JA
                                                   delaying and frustrating the process so that
384-411). This lawsuit followed.
                                                   the program would run out of funds, the
     The plaintiffs filed their initial
complaint on January 11, 2000 and filed
their first amended complaint (“FAC”) on           6
                                                        The District Court explicitly chose
March 23, 2001. The FAC named 39                   “not to certify this class under (b)(2)”
plaintiffs and sought class certification.         because even though “Rule 23(b)(2)
Veneman opposed class certification on             certification can be particularly well-suited
t h e grou nds th at the thre shold                to civil rights actions charging class
                                                   discrimination . . . certification is not
she would ask the complainant to give her          proper where ‘the appropriate final relief
p ermission to lodge an officia l                  relates exclusively or predominantly to
discrimination complaint with the USDA.            money damages.’” (Op. 14, note 4)
                                                   (quoting Advisory Committee Notes to
5
    Veneman refuses to be bound by the             Rule 23 (b) (2)). The District Court
contents of the report, calling it an              concluded that, although some measures of
“unofficial and preliminary draft” filled          injunctive relief were sought, “the
with “hearsay and baseless innuendo.”              equitable remedies probably do not
(Reply Brief, P.7, note1).                         predominate.” (Op. 14, note 4).

                                               7
applicant would become ineligible or the           requisites of Rule 23(a) and at least one
applicant would give up; and (3) even              part of Rule 23(b) are met. See Baby Neal
plaintiffs who did obtain loans were               v. Casey, 43 F.3d 48, 55 (3d Cir. 1994)
denied services such as loan workouts and          (citing Wetzel v. Liberty Mutual Ins. Co.,
payment moratoria because of their race,           508 F.2d 239 (3d Cir. 1975)). We review
gender, or national origin.                        the District Court’s decisions on class
                                                   certification for abuse of discretion. See In
    In making these findings, the District
                                                   re LifeUSA Holding Inc., 242 F.3d 136,
Court rejected Veneman’s argument that
                                                   143 (3d Cir. 2001). The District Court
the class definition improperly turned on a
                                                   abuses its discretion only if its decision
class members’ state of mind—i.e.,
                                                   “rests upon a clearly erroneous finding of
whether they “believed” themselves to
                                                   fact, an errant conclusion of law or an
have suffered discrimination. It rejected
                                                   improper application of law to fact.” In re
Veneman’s argument that Rule 23(a)’s
                                                   Gen. Motors Corp. Pick-Up Truck Fuel
requirements were not met. The Court
                                                   Tank Prods. Liab. Litig., 55 F.3d 768, 783
also found that the class was sufficiently
                                                   (3d Cir. 1995).
cohesive to warrant adjudication by class
action given that the common question in                          B. Rule 23(a)
each count was whether the USDA’s
                                                        In any class certification, the threshold
practice and policy discriminated against
                                                   issue is whether the four requisites of Rule
Blacks, Hispanics, women, and/or Virgin
                                                   2 3 ( a ) , nu m er os ity, com mo nality,
Islanders as a class, and that this common
                                                   typicality, and adequacy, are met. Rule
question predominated over differences in
                                                   23(a) states:
the factual circumstances of the individual
plaintiffs. The Court additionally held that          One or more members of a class
adjudicating this case as a class action was          m a y s u e o r b e s u e d as
superior to having numerous individual                representative parties on behalf of
lawsuits brought against the USDA.                    all only if (1) the class is so
                                                      numerous that joinder of all
    On July 22, 2003, a motions panel of
                                                      members is impracticable, (2) there
this Court granted Veneman’s petition for
                                                      are questions of law or fact
permission to take an interlocutory appeal
                                                      common to the class, (3) the claims
under Fed. R. Civ. P. 23(f). The District
                                                      or defenses of the representative
Court had jurisdiction pursuant to 28
                                                      parties are typical of the claims or
U.S.C. § 1331. We have jurisdiction over
                                                      defenses of the class, and (4) the
this appeal pursuant to 28 U.S.C. §
                                                      representative parties will fairly
1292(e).
                                                      and adequately protect the interests
          II. Class Certification                     of the class.
         A. Standard of Review                     Fed. R. Civ. P. 23(a).
   In order to obtain class certification,         Veneman does not now contest
plaintiffs must establish that all four            numerosity, typicality, or adequacy of

                                               8
representation. Rather, she focuses on the           revocation, alteration, or termination of
commonality prong, arguing that the                  credit; and collection procedures).” 12
eligibility determinations for loans are not         C.F.R. § 202.2(m) (emphasis added). A
susceptible to common proof. She also                potential creditor’s refusal to provide an
argues that the definition contains an               application form is also part of a “credit
internal contradiction, and that the class as        transaction” within the meaning of the
certified is fatally overbroad.                      statute, see Rosa v. Park West Bank &
                                                     Trust Co., 214 F.3d 213 (1st Cir. 2000).
             1. Commonality
                                                     Indeed, a refusal to provide a loan
    Veneman’s first objection to the class           application “on the basis of race, color,
certification is that there are not sufficient       religion, national origin, sex or marital
“questions of law or fact common to the              status, or age” would be a prototypical
class.” See Fed. R. Civ. P. 23(a)(2). But            ECOA violation, as it would deny
the commonality standard of Rule 23(a)(2)            members of a protected class any access to
is not a high bar: it does not require               credit.
identical claims or facts among class
                                                         Plaintiffs here allege discrimination at
member, as “the commonality requirement
                                                     several different points in the credit
will be satisfied if the named plaintiffs
                                                     application process, from refusal to
share at least one question of law or fact
                                                     provide application forms when requested,
with the grievances of the prospective
                                                     through delaying tactics in the processing
class.” Johnston v. HBO Film Mgmt., 265
                                                     of applications, to discrimination in
F.3d 178, 184 (3d Cir. 2001). We find that
                                                     administration of loan proceeds. Given the
Chiang’s allegations of discriminatory
                                                     broad language of 12 C.F.R. § 202.2(m),
conduct directed at the entire class do
                                                     we think that all of these forms of
present a common question of law.
                                                     discrimination fall under the purview of a
    As noted above, ECOA makes it                    “credit transaction,” and so constitute
“unlawful for any creditor to discriminate           ECOA violations. Thus, even though
against any applicant, with respect to any           many putative class members never even
aspect of a credit transaction . . . on the          made it to the official application process
basis of race, color, religion, national             because they were denied applications in
origin, sex or marital status, or age.” 15           the first instance, their requests for—and
U.S.C. § 1691(a).        The regulations             denial of—applications are nevertheless
governing ECOA define a “credit                      cognizable under ECOA.
transaction” as “every aspect of an
                                                         As presented by Chiang, and as
applicant’s dealings with a creditor
                                                     certified by the District Court, the heart of
regarding an application for credit or an
                                                     the complaint alleges discriminatory
existing extension of credit (including, but
                                                     attempts to keep class members from
not limited to, information requirements;
                                                     having access to rural housing loan
investigation procedures; standards of
                                                     programs in the Virgin Islands. Chiang
creditworthiness; terms of credit;
                                                     submits that the so-called “phony” waiting
furn ishing of credit information;

                                                 9
list and the other practices that allegedly          denial of access to housing programs; and
contributed to prevent Virgin Islanders              the unlawful discouragement and refusal to
from having access to loans are all                  process applications by way of the
susceptible to common proof. Those                   “impossible yes.”
multifarious practices include the
following:        the refusal to accept                   In our view, these claims allege a
submission of loan applications from class           uniform course of conduct common to all
members; the refusal to issue loan                   class members subject to common proof in
applications; the refusal to process loan            a single trial. In Hoxworth v. Blinder,
applications; the refusal to provide reasons         Robinson & Co., 980 F.2d 912, 924 (3d
for failing to process the loan applications;        Cir. 1992), we held that a “uniform
the unlawful denial of access to                     scheme” or “uniform course of conduct”
established procedures and national                  would support a finding of predominance
funding computer systems; the refusal to             even where injuries resulting from a
notify class members of eligibility for              fraudulent securities scheme were different
loans and assistance; the refusal to employ          for each class member; while imposing a
mandated priority funding system; the                h i g h e r s t a n d a r d , p re p o n d e r a n c e
refusal to engage in mandated processing             presupposes commonality. See also Int’l
procedures to determine eligibility; the             Brotherhood of Teamsters v. United States,
concealment of discriminatory acts by                431 U.S. 324, 336 (1977) (holding that a
refusal to issue notification stating reasons        pattern or practice would be present “only
for failure to process; the failure to issue         where the denial of rights consists of
notices of available funding and requests            something more than an isolated, sporadic
for information needed to process a loan;            incident, but is repeated, routine, or of a
the refusal to notify class members of next          generalized nature”). Chiang has alleged
q u a r t e r funding availability; the              such a practice here. We will therefore
concealment of class members’ attempts to            affirm the class certification insofar as it
access programs by refusal to enter their            deals with the waiting list and associated
information in national database; the                techniques.
failure to advise class members about
requirements for keeping loan applications               If the waiting list and associated
active; the unlawful denial of access to             techniques claims are resolved in
non-program loans; the refusal to advise             plaintiffs’ favor, they will have satisfied
class members of their right to review and           the first two prongs of the ECOA prima
appeal; the unlawful refusal to provide for          facie case: membership in a protected
administrative review of non-appealable              class (viz., Virgin Islanders: see infra Part
decisions; the failure to investigate and            II.B.2) and application (or, here, attempted
process discrimination complaints; the               application) for credit. The third and
denial of acces s to non-pro gram                    fourth prongs, however—that the applicant
procedures for assumption of existing                was qualified for the credit and that,
USDA loans and properties; the systematic            despite that qualification, defendant denied

                                                10
the credit— may prove harder            to         calculation is far from easy to perform,
adjudicate on a class-wide basis.                  especially when applicants may have
                                                   unstable work histories, the work in
    Chiang contends that the issues are            question may be seasonal, or continued
appropriate for class certification because        employment may be questionable—to
determinations of loan eligibility are a           name just a few of the possible variables.
purely ministerial matter.         At oral          Veneman also submits that class members
argument before this Court, counsel for            would need to show that the property for
Chiang submitted a chart concerning                which they sought a loan met the criteria
income limit qualifications for certain            for collateral on the loan. See 7 C.F.R. §§
RHS loans. Counsel argued that the one-            3550.56-57. In short, she disputes the
page document demonstrated that                    notion that loan eligibility could be a
qualification for the loans at issue was a         mechanical question proper for class
mechanical function that could be                  adjudication.
undertaken by any low-level clerk simply
by read ing the c har t.               See             Federal Rule of Civil Procedure
http://www.rurdev.usda.gov; see also 7             23(c)(4) provides that “[w]hen appropriate
C.F.R. § 3550.                                     (A) an action may be brought or
                                                   maintained as a class action with respect to
    Veneman, on the other hand, submits            particular issues . . . .” Rule 23(c)(4) both
that determining eligibility for loans is          imposes a duty on the court to insure that
quite complex and involves the exercise of         only those questions which are appropriate
discretion. She contends that in order to          for class adjudication be certified, and
show that he or she was qualified for a            gives it ample power to “treat common
loan, each applicant would need to                 things in common and to distinguish the
demonstrate that he or she met each of the         distinguishable.” Jenkins v. United Gas
regulatory requirements including income           Corp., 400 F.2d 28, 35 (5th Cir. 1968).
limitations and ability to repay the loan.         Because we believe that the two
See 7 C.F.R. § 3550.53. According to               questions—the existence of the phony
these regulations, two different kinds of          waiting list and associated techniques on
income must be considered: repayment               the one hand, and the feasibility of class-
income and eligibility income. See 7               wide determinations of loan eligibility on
C.F.R. § 3550.54. Repayment income                 the other—are easily distinguishable, we
measures the income which the applicants           will affirm certification on the former and
have available to repay the loan, while            leave it to the district court to determine
eligibility income is based on the income          whether class certification might be
of all members of the household.                   appropriate on the latter. We note in this
Veneman submits that although it may               regard that courts commonly use Rule
seem mechanical to take an applicant’s             23(c)(4) to certify some elements of
hourly income and multiply it by the               liability for class determination, while
number of yearly working hours, such a             leaving other elements to individual

                                              11
a d j u d i ca t i o n — o r , p e r h a p s m o r e
realistically, settlement.               See, e.g.,
Carnegie v. Household Int’l, Inc., 376 F.3d                     Similarly, we need not decide what the
656, 661 (7th Cir. 2004) (Posner, J.) (“[I]t                applicable test would be to rebut the prima
may be that if and when the defendants are                  facie case. Veneman would have us hold
determined to have violated the law                         that a “but for” test applies, and that
separate proceedings of some character                      putative class members would have to
will be required to determine the                           show that but for the discrimination, a loan
entitlements of the individual class                        would have been granted in each particular
members to relief.”); Mullen v. Treasure                    case. Chiang, on the other hand, argues
Chest Casino, LLC, 186 F.3d 620, 623 (5th                   that the burden-shifting framework set
Cir. 1999).7                                                forth in McDonnell Douglas Corp. v.
                                                            Green, 411 U.S. 792 (1973), applies
                                                            because ECOA should be construed in
   7
    B e c a u s e w e a r e n o t decid ing th e            accordance with the law of Title VII
question of appropriateness of class                        discrimination cases.
certifica tion for loan e ligibilit y                           We have not yet had occasion to decide
determinations, we need not rule on                         whether it is appropriate to shift the burden
Chiang’s “Motion to Correct the Record                      to a defendant to rebut a prima facie claim
and Reply” in which she wishes to                           of discrimination under ECOA. Several of
introduce two exhibits. The first document                  our sister Courts of Appeals have so held,
was presented to us only during the course                  but one Court of Appeals has questioned
of oral argument and consists of the one                    whether the McDonell Douglas model can
page income qualification chart. Since the                  be imported from the field of employment
District Court will be called upon to make                  discrim ina tion to that of credit
the determination as to whether class                       discrimination. See Lewis v. ACB Bus.
certification is appropriate for determining                Servs., Inc., 135 F.3d 389, 406 (6th Cir.
the question of loan eligibility, that Court                1998) (holding that ECOA’s legislative
should decide how to proceed with the                       history suggests reviewing claims of
request. The second document relates to                     discrimination using the same burden
evidence (past loan applications) allegedly                 allocation system found in Title VII);
destroyed by the USDA (willfully                            Moore v. United States Dept. of
according to Chiang; in the process of                      Agriculture, 55 F.3d 991, 995 (4th Cir.
routine destruction of records, according to                1995) (noting that the McDonnell Douglas
Veneman). To the extent that the alleged                    test would apply to ECOA case but for the
intentional destruction of this evidence                    fact that plaintiffs had direct evidence of
would have bearing on class certification                   discrimination); Mercado-Garcia v. Ponce
by making it impossible for the USDA to                     Fed. Bank, 979 F.2d 890, 893 (1st Cir.
undertake the individual review of all class                1992) (noting that the language of ECOA
members’ application files that it                          and EEOA is “nearly identical”); Bhandari
advocates, the District Court will again be                 v. First Nat’l Bank of Commerce, 808 F.2d
in a better position to evaluate that request.              1082, 1100-01 (5th Cir. 1987) (explaining

                                                       12
          2. Internal Contradiction                Islanders who applied or attempted to
                                                   apply for . . . and . . . were discriminated
    The USDA highlights an internal                against on the basis of national origin.”
contradiction in the class definition, and
argues that this contradiction is so                    We modify the class definition to
egregious that it renders the class, if not        include all “Virgin Islanders,” rather than
fatally overbroad, then at least logically         to include only “persons who are Black,
impossible. In certifying the class, the           Hispanic, [and/or] female,” because we
District Court defined its members as “all         understand Chiang to be alleging mainly
persons who are Black, Hispanic, female            discrimination against all Virgin Islanders,
and/or Virgin Islanders.” The USDA                 rather than racial discrimination among
argues that a class consisting of Blacks,          Virgin Islanders. However, at various
Hispanics, women, and/or Virgin Islanders          points in her submissions, Chiang does in
is inherently contradictory as it would            fact appear to be alleging individual racial
necessarily both include and exclude white         and gender discrimination against Black,
males. We agree. However, rather than              Hispanic, and female Virgin Islanders (and
decertify the class, as the USDA urges us          in favor of white male Virgin Islanders).
to do, we prefer to take a less drastic            The number of specific complaints in these
course and simply modify the class                 areas appears to be small in comparison to
definition to remove the ambiguity. See            the claims of discrimination against all
28 U.S.C. § 2106 (entitling us to “affirm,         Virgin Islanders. We note that 76% of the
modify, vacate, set aside or reverse any           population of the U.S. Virgin Islands is
judgment, decree, or order”). Pursuant to          Black, and 14% is Hispanic, see U.S.
the modification, the class definition in          Census Bureau, Population and Housing
relevant part will now read “[a]ll Virgin          P r o f i l e :             2 0 0 0 ,     a t
                                                   http://www.census.gov/Press-Release/w
                                                   ww/2002/usvistatelevel.pdf; thus, it is
that language of ECOA is “closely related”         quite possible that claims of racial and
to that of EEOA and “was intended to be            national-origin discrimination might
interpreted similarly”); Williams v. First         overlap here. At all events, we reform the
Fed. Sav. & Loan Ass’n, 554 F. Supp. 447,          c la s s d e f i n it i o n b a s e d o n o u r
448-49 (N.D.N.Y. 1981) (“Protections               understanding of the main thrust of
afforded by the ECOA should be applied             Chiang’s claims, but we leave it open to
in the same manner as those created by”            the plaintiffs to seek to amend the class
the EEOC), aff’d, 697 F.2d 302 (2d Cir.            definition should they actually want to
1982). But see Latimore v. Citibank Fed.           allege racial and gender, rather than
Sav. Bank, 151 F.3d 712, 713-15 (7th Cir.          national origin, discrimination. We agree
1998) (holding that lack of direct                 with Veneman, however, that plaintiffs’
competition between applicants in credit           current allegations of both kinds of
context renders analogy to Title VII cases         discrimination prese nt an in ternal
flawed).                                           contradiction.

                                              13
    Although we have not previously held            certification without fitting neatly into any
that “Virgin Islanders” is a legitimate             other category. While we note that many
designation of national origin for purposes         of these issues seem to relate at least in
of a federal discrimination claim, we have          part to the commonality prong of Rule
certainly implied it. See Moravian Sch.             23(a)(2), we will nonetheless analyze them
Advisory Bd. of St. Thomas v. Rawlins, 70           under Veneman’s convenient heading of
F.3d 270, 278 (3d Cir. 1995) (Becker, J.            “overbreadth.”
concurring) (tacitly assuming that “Virgin                               a.
Islander” is an acceptable designation of
national origin in a federal discrimination             First, Veneman argues that the class
suit). To the extent that the USDA objects          definition includes untimely claims. She
to the inclusion of the term Virgin                 submits that, by attempting to encompass
Islanders in the class definition, we               credit discrimination claims dating back to
understand the objection to be based on the         January 1, 1981, Chiang’s definition
confusion it creates when contrasted to             ignores ECOA’s two-year statute of
persons who are “Black, Hispanic, [or]              limitations.     Veneman contends that
female,” rather than on the ground that             having brought suit on January 11, 2000,
“Virgin Islander” cannot be a legitimate            the class may not sue based on acts of
national origin designation. We have held,          discrimination predating January 11, 1998,
for example, that the term Puerto Rican             with the only exception being for those
can designate national origin for purposes          individuals who filed an “eligible
of a federal discrimination suit, see, e.g.,        complaint” about such an act with the
DiMarco-Zappa v. Cabanillas, 238 F.3d               USDA by July 1, 1997.8 However, we
25, 36 (1st Cir. 2001); c.f. Fuentes v.             believe that the issue of timeliness goes to
Perskie, 32 F.3d 759, 763 (3d Cir. 1994)            the merits of the case, not to the definition
(accepting the District Court’s conclusion          of the class. The claims therefore can not
that the plaintiff made out a prima facie           be prejudged to deny certification. See
case of employment discrimination based             Huff v. ND Cass Co., 485 F.2d 710, 714
on his Puerto Rican heritage), and see no           (5th Cir. 1973) (en banc) (holding that
reason to distinguish the cases as to the           requiring a class representative to prove
national origin designations.                       the merits of his or her claim before being
                                                    able to represent a class is reversible
             3. Overbreadth                         error); see also Eisen v. Carlisle &
                                                    Jaquelin, 417 U.S. 156, 178 (1974) (“In
    Veneman also contends that class                determining the propriety of a class action,
certification should be set aside on the
ground that the certified class is
                                                      8
“overbroad.” In Veneman’s universe, it                 See Omnibus Consolidated & Emergency
seems that overbreadth is being used as a           Supplemental Appropriations Acts, 1999,
catch-all to address a number of issues that        Pub. L. No. 105-277, § 741, 112 Stat. 2681-30
do seem potentially to bear on class                (Oct. 21, 1998) (codified at 7 U.S.C. § 2279
                                                    note).

                                               14
the question is not whether the plaintiff or          FmHA.” Williams, at *14 (emphasis
plaintiffs have stated a cause of action or           added). The USDA argues that Chiang’s
will prevail on the merits, but rather                proposed class is an exact parallel to that
whether the requirements of Rule 23 are               rejected in Williams. We disagree.
met.”) (citation omitted); Gruber v. Price                Besides the fact that both putative
Waterhouse, 117 F.R.D. 75, 80 (E.D. Pa.               classes share references to Blacks,
1987) (holding that a statute of limitations          Hispanics, and loan discrimination, they
defense goes to the merits and hence is not           actually have little in common.           In
an appropriate objection in the context of            Williams, plaintiff farmers filed suit
class certification).                                 against defendant the USDA claiming that
                                                      the Farmers Hom e Administration
                     b.                               (FmHA) discriminated against them based
   Second, Veneman argues that in this                on race or national origin. Like the
case the District Court approved a class              putative class here, the farmers sought
definition that was explicitly rejected in            recovery under the Equal Credit
Williams v. Glickman, Civ. No. 95-1149,               Opportunity Act. However, in Williams,
1997 U.S. Dist. LEXIS 1683 (D.D.C. Feb.               the Court ruled that the farmers’ bare
14, 1997), a case in which the plaintiffs             allegation of a “common thread of
defined their class as:                               discrimination” did not satisfy the
                                                      requirement that potential class plaintiffs
   All African American or Hispanic                   make a “specific presentation” identifying
   American persons who, between                      the common questions of law or fact.
   1981 and the present, have suffered                Chiang’s class, on the other hand, did just
   from racial or national origin                     that in alleging the existence of a uniform
   discrimination in the application for              scheme aimed at preventing class members
   or the servicing of loans or credit                from gaining access to loans.           We
   from the FmHA (now Farm                            therefore find Williams distinguishable.
   Services Agency) of the USDA,
   which has caused them to sustain                       It is no objection to Chiang’s class that
   economic loss and/or mental                        the allegations of a uniform scheme are not
   anguish/emotion [sic] distress                     contained in the class definition itself: we
   damages.                                           read Williams to hold that the proposed
Williams, at *10.                                     class was “overly broad” because of the
                                                      plaintiffs’ varied factual allegations of
   In Williams, the Court rejected this
                                                      discrimination, lacking Rule 23(a)(2)
definition as overbroad, finding that “[I]t is
                                                      commonality, rather than because of any
not limited to any specific policy or
                                                      lack of specificity in the class definition
practice which is alleged to be
                                                      itself. In fact, Judge Flannery objected to
discriminatory; instead, the class purports
                                                      the inc lusion o f all egations of
to include those blacks and Hispanic
                                                      discrimination in the class definition,
farmers who have suffered any type of
                                                      holding that “[b]ecause the Court must
discrimination in their dealings with the

                                                 15
answer numerous fact-intensive questions             access to the USDA’s Rural Housing
before determining if an individual may              program in the Virgin Islands and were
join the class, the proposed class is not            systematically denied that access. The fact
clearly defined.” Williams, 1997 U.S.                that some class members were able to
Dist. LEXIS 1683, at *13. Thus Williams              make more progress than others does not
cannot stand for the proposition that all            translate into intra-class conflict, nor does
allegations of a uniform scheme of                   it mean that the class as defined is fatally
discrimination must be included in the               overbroad.
class definition— rather, it stands for the                                d.
opposite proposition, that class definitions                Finally, Veneman argues that defining
must be free of merits allegations that              a class by reference to those who “believe”
require extensive factual findings.9                 t h e y w e r e disc r iminate d a gai n st
                                                     undermines the validity of the class by
                     c.                              introducing a subjective criterion into what
                                                     should be an objective evaluation. We
     Veneman also argues that the class is           agree.10 See, e.g., NOW v. Scheidler, 172
overbroad because it consists of two                 F.R.D. 351, 357, 1997 U.S. Dist. LEXIS
groups with conflicting interests. See               4036, at *9 (N.D. Ill. Mar. 28, 1997)
Penn. Dental Ass’n v. Medical Serv. Ass’n            (explaining that an identifiable class exists
of Penn., 745 F.2d 248, 263 (3d Cir. 1984)           if its members can be ascertained by
(upholding District Court’s refusal to               reference to objective criteria and that
certify class where proposed class                   when membership in a class is defined
consisted of two groups with inherently              solely by state of mind, the class is
conflicting interests). More specifically,
Veneman urges us to decertify the class on              10
the basis that there is a significant risk of             Chiang argues that class certification
intra-class conflicts between those class            based on a “belief in discrimination” was
members who received loans and those                 already stipulated to by the USDA in a
who did not, as well as between those who            previous class action for discrimination.
have claims concerning their properties              In Pigford v. Glickman, where a class of
and those who do not.                                African American applicants for loans
                                                     filed racial discrimination complaints
    We do not see any of the purported               against the USDA, the final consent decree
conflicts of interests that Veneman claims           included the phrase “All African American
are present here. Rather, we believe that            farmers … [who] believed that they were
the class definition properly identifies a           discriminated against on the basis of race.”
group of people who attempted to gain                Pigford v. Glickman, 185 F.R.D. 82, 92
                                                     (D.D.C. 1999). While this is true, we fail
                                                     to see how the USDA’s prior stipulation to
      9
       For further discussion of merits              language in a consent decree before a
allegations in class definitions, see infra,         different court affects the class definition
Part II.B.3.d.                                       in this case.

                                                16
generally deemed unascertainable); Zapka             relief. The putative class members’ belief
v. Coca-Cola Co., No. 99 CV 8238, 2000               that they were discriminated against is
U.S. Dist. LEXIS 16552, at *7 (N.D. Ill.             irrelevant at the class certification stage.
Oct. 26, 2000) (noting that an identifiable
class does not exist if membership in the                For similar reasons, we decline to
class is contingent on the state of mind of          modify the class definition to include
the prospective members); Fears v.                   Virgin Islanders who “claim that they were
Wilhelmina Model Agency, Inc., No. 02                discriminated against,” or those who “were
Civ. 4911, 2003 U.S. Dist. LEXIS 11897,              discriminated against.” “Claim” seems to
at *6-*7 (S.D.N .Y. July 15, 2003)                   be a mere substitute for “believe” and “a
(explaining that membership in a class               class defined with reference to the state of
should rest on objective criteria that are           mind of its members will not be allowed to
administratively feasible for the court to           proceed under Rule 23.” 7A Wright,
rely on to determine whether a particular            Miller & Kane, Federal Practice &
individual is a member of the class).                Procedure § 1760, at 124-26. Moreover,
                                                     the Manual for Complex Litigation
     While Veneman is technically correct,           (Second) has recommended that courts
we think the issue to be a red herring, for          should “avoid class definitions that depend
“belief” seems to us to be mere surplusage.          on . . . the seeking of relief (for example,
It is clear enough that Chiang and the other         persons claiming injury or seeking
named plaintiffs believe that they were              damages from some stated practice),”
discriminated against. See, e.g., Fed. R.            Manual for Complex Litigation (Second) §
Civ. P. 11(b) (requiring that pleadings              30.14 (1985), though we note that later
represent a reasonable belief that claims            editions of the MCL have eliminated that
are warranted by law and have evidentiary            stricture, see Manual for Complex
support). Such belief in discrimination,             Litigation (Fourth) § 21.222 (2004).
however, is not a prerequisite for inclusion         Limiting the class to those who were in
in the putative class. Our earlier                   fact discriminated against would seem to
modification to the class definition, see            prejudge the merits of the case, contrary to
supra Part II.B.2, makes clear that we are           the teaching of Eisen v. Carlisle &
certifying a class to try an issue common            Jacquelin, 417 U.S. 156, 177 (1974); see
to all Virgin Islander loan applicants:              also 5 James Wm. M oore et al., Moore’s
whether USDA engaged in a pattern of                 Federal Practice ¶ 23.21[3][c] (3d ed.
discrimination via phony waiting lists and           1999) (“A class definition is inadequate if
delaying tactics. This issue is properly             a court must make a determination of the
adjudicated on behalf of a class consisting          merits of the individual claims to
of all Virgin Islander applicants during the         determine whether a particular person is a
relevant period; if it is adjudicated against        member of the class.”).
Veneman, then further proceedings will be
appropriate to determine which, if any,                 We will therefore modify the class
class members are actually entitled to               definition to eliminate the notion of

                                                17
“belief.” In combination with our first             incorporate the commonality requirement
modification, see supra Part II.B.2. the            of 23(a), it is possible that “even if Rule
class will now be defined as:                       23(a)’s commonality requirement is
                                                    satisfied . . . the predominance criterion is
   All Virgin Islanders who applied or              far more demanding..” Amchem Prods. v.
   attempted to apply for, and/or                   Windsor, 521 U.S. 591, 623-24 (1997).
   received, housing credit, services,
   h o m e ownership, assistance,                       The District Court certified this class
   training, and/or educational                     pursuant to Fed. R. Civ. P. 23(b)(3). In
   opportunities from the USDA                      relevant part, the Rule reads:
   through its Rural Development
   offices (and predecessor                            An action may be maintained as a
   designations) located in the U.S.                   class action if the prerequisites of
   Virgin Islands at any time between                  subdivision (a) are satisfied, and in
   January 1, 1981 and January 10,                     addition:
   2000.                                               ...
                                                       (3) the court finds that the
   Thus, with the modifications we have                questions of law or fact common to
made to the class definition, and keeping              the members of the class
in mind the caveats about loan eligibility             predominate over any questions
we have set forth, we are confident that the           affecting only individual members,
waiting list question satisfies all four               and that a class action is superior to
requisites of Rule 23(a).                              other available methods for the fair
                                                       and efficient adjudication of the
            C. Rule 23(b)                              controversy.

    In addition to meeting the prerequisites        Veneman argues that, in this case,
of Rule 23(a), the plaintiffs must                  common issues do not predominate over
demonstrate that the class would satisfy            individual ones.
any one of the three subsections under
Rule 23(b).       Rule 23 addresses the                 In order to predominate, the common
commonality required to demonstrate                 issues must constitute a “significant part”
cohesiveness for class certification in two         of the individual cases. Jenkins v. Raymark
subsections, (a)(2) and (b)(3).        Rule         Industries, Inc., 782 F.2d 468, 472 (5th
23(a)(2) requires that plaintiffs prove that        Cir. 1986); see also Watson v. Shell Oil,
“there are questions of law or fact common          979 F.2d 1014, 1022 (5th Cir. 1992).
to the class.” As explained in Part II.B.1,         Veneman contends that because the
supra, the relatively low Rule 23(a)(2)             damages sought, on the order of 2.8 billion
commonality requirement is easily                   dollars, are so high, and will require such
satisfied here. However, because the Rule           exacting, specific, individual proof, that
23(b)(3) predominance requirements                  those individual questions are, in reality,

                                               18
the predominant issues in the case.                  analysis set forth earlier in this opinion,
                                                     that both the predominance and the
    Chiang concedes that the eventual                superiority requirements of Rule 23(b) are
calculations of damages will require                 easily met with respect to the issues
individual proof. However, she points out            certified under Rule 23(c)(4)(A). 11
that it is settled law that the necessity for
proving damages individually does not                              III. Conclusion
defeat class predominance or class
certification. “The presence of individual               For the foregoing reasons, we will
questions as to [each class member] does             affirm the class certification pursuant to
not mean that the common questions of                Rule 23(c)(4)(A) only insofar as it relates
law and fact do not predominate over
questions affecting individual members as                 11
required by Rule 23(b)(3).” Eisenberg v.                    We note that the relief sought is
Gagnon, 766 F.2d 770, 786 (3d Cir. 1985).            primarily for monetary damages and not
                                                     for injunctive relief. Perhaps anticipating
    To be sure, there are cases where the            the potentially problematic aspect of this
question of damages is so central that it            posture in a case where— were liability
can, in some sense, overtake the question            established—damages calculations would
of liability. But as noted in Bogosian v.            probably be extremely individualized,
Gulf Oil Corp., 561 F.2d 434, 456 (3d Cir.           Chiang acknowledges that “it may come to
1977):                                               pass that the trial court deems injunctive
                                                     relief the better remedy and finds that
   [I]t has been commonly recognized                 damages are minimal.” (Chiang Brief,
   that the necessity for calculation of             p.38). Whether that would be the more
   damages on an individual basis should             logical path we do not say, but we do note
   not preclude class determination when             that unlike in cases where the primary
   the common issues which determine                 relief sought is injunctive in nature, see
   liability predominate. If for any reason          Baby Neal v. Casey, 43 F.3d 48 (3d Cir.
   the district court were to conclude that          1994), Chiang seeks only ancillary
   there would be problems involved in               injunctive relief: the primary relief she
   proving damages which would                       seeks is 2.8 billion dollars in damages.
   outweigh the advantages of class                  Given that each class member will likely
   certification, it should give appropriate         find him- or herself in very different
   consideration to certification of a class         circumstances in terms of establishing
   limited to the determination of liability.        damages, we think it unlikely that the
                                                     calculation of damages will be suitable for
(citations omitted).                                 class determination. However, should
                                                     Chiang make it to that stage, we once
   That does not seem to be the case here,           again defer to the District Court in the first
and we are satisfied, based upon the                 instance to evaluate whether damages can
                                                     be adjudicated on a class wide basis.

                                                19
to the question of the alleged waiting list
and related techniques, and will modify the
class definition to provide for a class of:

   All Virgin Islanders who applied or
   attempted to apply for, and/or
   received, housing credit, services,
   h o m e ownership, assistance,
   training, and/or educational
   opportunities from the USDA
   through its Rural Development
   offices (and predecessor
   designations) located in the U.S.
   Virgin Islands at any time between
   January 1, 1981 and January 10,
   2000.

The certification will be vacated in all
other respects. The District Court should
reevaluate the appropriateness of class
certification on certain discrete issues such
as the eligibility facet of liability and the
calculation of damages, and may entertain
any applications for revision of the class
definition in accordance with this opinion.




                                                20
