                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-1994

Baby Neal v. Casey
Precedential or Non-Precedential:

Docket 94-1381




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       UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
              ________________

                 No. 94-1381
              ________________

BABY NEAL, for and by his next friend, NANCY KANTER;
KAREEM AND KENT H, for and by their next friend,
JOHN PEIRCE; WILLIAM AND JOSEPH H, for and by
their next friend, FATHER, ROBERTO MALDONADO;
MARCELLA B, for and by her next friend, FRANK
CERVONE; SHERRY G, for and by her next friend,
JOAN ATLAS; JOHN, JEAN, JACOB, AND JEFFREY W,
for and by their next friend, WILLIAM SWEENEY;
ALICIA P, for and by her next friend, SARA
NERKEN; MANUEL I, for and by his next friend,
FRANK CERVONE; TAMARA AND CARL I, for and     by
their next friend, FRANK CERVONE; JANE L, for
and by her next friend, ANNA SCHMIDT

JAMIE B; IVY V; AMELIA V; TARA M; EVAN M; ELLIE C;
JOHN B; CHUCK L; LARRY P; SHERIS C; KYLE S;
TODD MCL; JAY I; MAX C;

                     Plaintiffs-Intervenors

                     v.

ROBERT P. CASEY, in his official capacity as
Governor of COMMONWEALTH OF PENNSYLVANIA; KAREN
F. SNIDER,* in her official capacity as Secretary
of the Department of Public Welfare for the
Commonwealth of Pennsylvania; W. WILSON GOODE,
in his official capacity as Mayor of the City of
Philadelphia; JOAN M. REEVES, in her official
capacity as Commissioner of the Department of Human
Services of the City of Philadelphia; MAXINE TUCKER,
in her official capacity as Interim Deputy
Commissioner of the Children and Youth Division of the
Philadelphia Department of Human Services; EDWARD
J. BLAKE, in his official capacity as President Judge
of the Philadelphia Court of Common Pleas

               *[substituted pursuant to FRAP 43(c)]

     Baby Neal, by and through his next friend, Nancy
     Kanter; Marcella B, by and through her next
     friend, Frank Cervone; Sherry G, by and through
                 her next friend, Joan Atlas; John, Jean, Jacob,
                 and Jeffrey W, by and through their next friend,
                 William Sweeney; Alicia P, by and through her next
                 friend, Sara Nerken; Tamara, Carl, and Manuel I,
                 by and through their next friend, Frank Cervone;
                 Jane L, by and through her next friend, Anna
                 Schmidt; Jamie B, by and through his next friend,
                 Claire Rosenstein; Ivy, Amelia, and Jay V, by and
                 through their next friend, Susan Bergin; Tara M,
                 by and through her next friend, Nancy Kanter; Evan
                 M and Ellie C, by and through their next friend,
                 Najma Davis; John B, by and through his next
                 friend, Anita Wirzberger; Chuck L, by and through
                 his next friend, Sara Nerken; Max C, by and
                 through his next friend, Nancy Kanter; Larry P, by
                 and through his next friend, Nancy Kanter; Sheris
                 C, by and through his next friend, William W.
                 Norvell, III; Kyle S, by and through his next
                 friend, Sara Nerken; and Todd McL, by and through
                 his next friend, Nancy Kanter,
                                                Appellants

      ___________________________________________________

        On Appeal From the United States District Court
            For the Eastern District of Pennsylvania
                     (D.C. No. 90-cv-02343)
      ___________________________________________________

                      Argued: September 22, 1994

           Before: BECKER, COWEN, and GARTH, Circuit Judges.

                      (Filed   December 15, l994)


                                   ROBIN   L.       DALHBERG,   Esquire
(ARGUED)
                                   MARCIA ROBINSON LOWRY, Esquire
                                   American Civil Liberties Union
                                   Children's Rights Project
                                   132 West 43rd Street
                                   New York, New York   10036

                                   LAWRENCE J. FOX, Esquire
                                   MARY E. KOHART, Esquire
                                   E. GRAHAM ROBB, Esquire
                                   PAUL H. SAINT-ANTOINE, Esquire
                                   Drinker Biddle & Reath
                                   Philadelphia National Bank Bldg.
1345 Chestnut Street
Philadelphia, PA 19107-3496
STEFAN PRESSER, Esquire
American Civil Liberties Union
    of Pennsylvania
125 South Ninth Street, Suite 701
Philadelphia, PA 19107

Attorneys for Appellants


DANA B. KLINGES, Esquire (ARGUED)
JEROME J. SHESTACK, Esquire
MICHELE K. CABOT, Esquire
Wolf, Block, Schorr & Solis-Cohen
S.E. Corner 15th & Chestnut Sts.
Packard Building, 12th Floor
Philadelphia, PA 19102

JOHN A. KANE, Esquire
Chief Counsel
DORIS M. LEISCH, Esquire
Assistant Counsel
Department of Public Welfare
309 Health & Welfare Building
Harrisburg, PA 17120

Attorneys for Appellees
Robert P. Casey and Karen Snider


MICHAEL F. EICHERT, Esquire
Office of the City Solicitor
1600 Arch Street, 8th Floor
Philadelphia, PA 19102

Attorney for Appellees
W. Wilson Goode, Joan M. Reeves,
and Maxine Tucker


A. TAYLOR WILLIAMS, Esquire
Supreme Court of Pennsylvania
Administrative Office of
   Pennsylvania Courts
1515 Market Street, Suite 1414
Philadelphia, PA 19102

Attorney for Appellee
Edward J. Blake
                                           MARTHA MATTHEWS, Esquire
                                           National Center for Youth Law
                                           114 Sansome Street, Suite 900
                                           San Francisco, CA 94104-3820

                                           Attorney for Amicus Curiae
                                           National Center for Youth Law


                                           ROBERT G. SCHWARTZ, Esquire
                                           JACQUELINE L. DUBY, Esquire
                                           Juvenile Law Center
                                           801 Arch Street, Suite 610
                                           Philadelphia, PA 19107

                                           Attorneys for Amici Curae
                                           Juvenile Law Center
                                           Philadelphia     Citizens               for
Children
                                           and Youth

                         ___________________________

                             OPINION OF THE COURT
                         ____________________________

BECKER, Circuit Judge.

              This appeal from orders of the district court for the

Eastern District of Pennsylvania requires that we decide whether

the court abused its discretion in denying class certification
pursuant      to   FED. R. CIV. P.        23(b)(2)    to    a   putative   class   of

children      in   the   legal     care     and    custody      of    Philadelphia's

Department of Human Services ("DHS"), who sought declatory and

injunctive relief against the officials responsible for operation

of the child welfare system.                Plaintiffs allege that systemic

deficiencies       prevent   DHS    from    providing       a   variety    of    child

welfare    services       legally     mandated        by     the      United    States

Constitution and by federal and state law.                      The district court

held   that    the   plaintiffs     could    not     meet   the      commonality and
typicality requirements of Rule 23, essentially because each of

the    plaintiffs'      claims      arose       out     of    individual     (and       tragic)

circumstances and hence they could not claim a single common

injury and be appropriately entitled to class relief pursuant to

RULE 23(b)(2).        We reverse.



                       I. FACTS AND PROCEDURAL HISTORY

            This suit was brought on behalf of sixteen children who

had been placed in DHS's care by orders of the Family Court

Division of the Philadelphia County Court of Common Pleas ("the

Court").       Defendants         are     the     Governor         of   Pennsylvania,        the

Secretary of Pennsylvania's Department of Public Welfare ("DPW"),

the    Mayor     of     Philadelphia,             the        Commissioner        and     Deputy

Commissioner of DHS, and the President Judge of the Court.                                   The

city    defendants          are     responsible              for    the    operation         and

administration         of    DHS.           The       Commonwealth        defendants         are

responsible for ensuring that DHS provides legally mandated child

welfare services to eligible children and families.                              The Judicial

defendant is responsible for the allocation of judicial resources

for the Family Court.

            It is a matter of common knowledge (and it is not

disputed here) that in recent years the system run by DHS and

overseen by DPW has repeatedly failed to fulfill its mandates,

and    unfortunately        has     often       jeopardized         the   welfare       of   the

children    in    its       care.         Plagued       by     severe      and    widespread

deficiencies     in     staff       and     revenues,          the      system    has     often
demonstrated a lack of ability to provide abused and neglected

children with the necessary welfare services.

            The DHS acknowledged many of these deficiencies in its

Three    Year    Plan     1991-1992      (A486-A492).         The    Commonwealth

defendants      have    also   acknowledged     these   deficiencies:           three

times since April 1992, DPW denied a full operating license to

the DHS.     At those times, DPW announced that DHS had failed (1)

to   satisfy      legal    mandates       for   child    protective        services

investigations; (2) to adhere to the caseload maximum of 30 cases

per caseworker; (3) to assign to a substantial number of foster

children a caseworker to monitor foster care placement and to

ensure   that     the    children   received     necessary     and       appropriate

services; (4) to ensure that foster parents received the training

necessary to permit them to care for foster children; and (5) to

provide any child whose records were reviewed with an adequate

case plan. (A277-A332; A333-A338; A389-A445)

            The original complaint, filed on April 4, 1990, sought

both declaratory and injunctive relief, and alleged that systemic

deficiencies prevent DHS from providing the following legally

mandated     child        welfare       services:         protective         service

investigations as required by the United States Constitution, the

Child    Abuse    Prevention     and     Treatment    Act,1   and    state      law2;

monitoring and supervision as required by the Constitution and


     1 42 U.S.C. § 5106a(b) (West Supp. 1994).
     2
     23 Pa. CON. STAT.           ANN.     §§6301-84     (1991),     55    Pa.    Code
§§3490.51-.73 (1994).
state law3; safe and secure foster care placements as required by

the Constitution, the Adoption Assistance Act,4 and state law5;

written case plans as required by the Constitution, the Adoption

Assistance Act,6 and state law7; necessary medical, psychiatric,

psychological,       and   educational   services      as    required    by   the

Constitution, and state law8; the planning and steps required to

return children to their families or to find them alternative

permanent     placements     as   required     by    the    Constitution,     the

Adoption Assistance Act,9 and state law10; and periodic judicial

reviews as required by the Constitution, the Adoption Assistance

Act,11 and state law12.

             In factual terms, plaintiffs allege that the system has

the following deficiencies:          an insufficient number of trained

caseworkers;    an    insufficient    number    of    medical,    psychiatric,

psychological, and educational service providers; an insufficient
    3
        55 Pa. Code § 3490.61 (1994).
    4
        42 U.S.C. §671(a)(10) (West Supp. 1994).
    5
        55 Pa. Code § 3130.67 (1994).
    6
        42 U.S.C. §§627(a)(2)(B), 675 (West 1991).
    7
     55 Pa. Code §§ 3130.61,             3130.63,      3130.66-67,      3130.73,
3490.59, 3810.35 (1994).
    8
     55 Pa. Code §§3130.12(c),           3130.34-35,        3130.73,    3490.60,
3700.51, 3810.51 (1994).
    9
        42 U.S.C. §627(a)(2)(C) (West 1991).
    10
            55 Pa. Code §§3130.36-37 (1994).
    11
             42 U.S.C. §§627(a)(2)(B), 675 (West 1991).
    12
             55 Pa. Code §§3130.71, 3130.72 (1994).
number     of    trained   foster      parents;         an   insufficient      number    of

placements       for   children       who   need    environments        that    are     more

structured than foster homes; an insufficient number of potential

adoptive parents; and a host of policies and procedures that are

inefficient and deficient as measured against the standards of

national        organizations     incorporated          under    federal      law.       The

complaint       portrays   the    impact      of    these       deficiencies        through

accounts of the lives and conditions of the named plaintiffs.

The stories are quite pathetic.

                Doctrinally, these allegations comprise four separate

claims for declaratory and injunctive relief.                     The first cause of

action involves the alleged violations of rights conferred by the

Adoption Assistance and Child Welfare Act of 1980, including the

right to reasonable efforts to keep the children in their home or

to enable them to return home; the right to timely written case

plans;     the     right   to    placement         in    foster       homes    that    meet

nationally        recommended     standards;        the       right     to    appropriate

services; the right to placement in the least restrictive, most

family-like setting; the right to proper care while in custody;

the right to a plan and to services that will assure permanent

placement; the right to dispositional hearings within eighteen

months of entering custody and periodically thereafter; and the

right to receive services in a child welfare system with an

adequate information system.

                The second cause of action lies in alleged violations

of   the   First,      Ninth    and    Fourteenth        Amendments     to    the     United

States Constitution.            Specifically, plaintiffs claim that these
amendments   confer   the    right    not   to     be    deprived       of   a   family

relationship; the right not to be harmed while in state custody;

the right to placement in the least restrictive, most appropriate

placement; the right to medical and psychiatric treatment; the

right to care consistent with competent professional judgment;

and the right not to be deprived of liberty or property interests

without due process of law.

          The third cause of action alleges violations of rights

conferred on the plaintiffs by the Child Abuse Prevention and

Treatment Act, including the right to a prompt and appropriate

investigation   of    reports   of    abuse      or     neglect;    the      right   to

protection from those who endanger their health and welfare; and

the right to procedures, personnel, programs, and facilities that

are necessary to deal effectively with child abuse and neglect.

As with the first cause of action, defendants argue that this Act

does not create any private rights of action.

          The   fourth      cause    of   action      provides     an    alternative

basis in state law for some of the claims alleged under the three

federal causes of action.            These claims include the right to

protection from abuse; the right to preventive rehabilitative

services; the right to appropriate and timely case records and

plans; the right to have every effort made to enable the children

to remain in their homes or be returned to their homes; the right

to appropriate services to assure proper permanent placement; and

the right to adoption services.

          Simultaneously with the filing of the complaint, the

plaintiffs sought certification of a class consisting of "all
children in Philadelphia who have been abused or neglected and

are or should be known to the Philadelphia Department of Human

Services." (Pls. Motion 4/4/90 ¶2).                   The Commonwealth defendants

moved to dismiss the complaint on the grounds that the plaintiffs

had no valid claim for relief under any of the relevant federal

laws.        The district court denied the defendants' motion, but it

stayed the class certification motion during its consideration of

this motion to dismiss.                   In response to defendants' asserted

inability         to    complete    the    discovery      necessary         to    oppose     the

certification, the district court stayed resolution of the class

certification           motion   three     additional     times.       (Order 11/19/90;

Order 1/30/91; Order 5/6/91).                   During this period, the plaintiffs

attempted to commence system-wide discovery.                               They now allege

that        the    defendants      never       produced   "much       of    the       requested

discovery."

                  The    district       court    denied   the     class      certification

motion in an order dated January 6, 1992, based on the finding

that the putative class had failed to satisfy the commonality and

typicality requirements of Rule 23(a) and had also failed to

satisfy Rule 23(b).13               The court based these determinations on

its     view      that    each     of    the    plaintiffs      had    his       or    her   own

individual circumstances and needs, and that the class thus could

not complain about a single, common injury.                       The plaintiffs moved

       13
          The court also based its decision on the failure                                    to
satisfy   the   adequate representation  requirement,  but                                    it
subsequently approved the substitution of new next friends                                    on
March 20, 1992, and the adequacy of representation issue is                                   no
longer pressed.
for reconsideration or, in the alternative, for certification of

subclasses.         While this motion was pending, fourteen children

intervened     as    plaintiffs,    seeking     relief    for    themselves    and

proffering a demonstration that children in DHS's custody and

care continued to be harmed by DHS's failure to provide legally

mandated child welfare services.           The court subsequently denied

the   motion      for   reconsideration       and   for     certification       of

subclasses.

            The      defendants    then   moved     for    summary      judgment,

repeating the argument made in the motion to dismiss that the

plaintiffs had no private rights of action under the federal laws

alleged, and arguing that the plaintiffs' claims had become moot.

On August 24, 1992, the plaintiffs again moved for certification

of subclasses.        The district court stayed consideration of that

motion pending the resolution of the summary judgment motion.                  In

an order dated April 12, 1993, the court partially granted the

defendants'       motion    for     summary     judgment,        rejecting     the

plaintiffs' claims as to the existence of the private rights of

action under the Child Abuse Prevention and Treatment Act and the

Adoption Assistance and Child Welfare Act.                The court denied the

defendants' motion insofar as it asserted the mootness of all but

twenty-three of the twenty-six plaintiffs' claims.

            On May 10, 1993, the plaintiffs renewed their motion

for subclass certification.           On October 13, 1993, in an order

denying certification the court held that the subclasses were not

properly defined.       The plaintiffs then moved for reconsideration,

proposing     new    subclass     definitions    intended       to   address   the
court's concerns.      The court denied this motion without comment,

forbade   plaintiffs    from   making   any   other   class   certification

motions, and scheduled the case for trial. (Order, 12/6/93).

           By this time, nearly four years after the commencement

of the litigation, almost all of the individual service needs of

the plaintiff children had been met or otherwise resolved.             The

parties then settled the plaintiffs' remaining claims based on

individual service needs and entered into a stipulation of entry

of judgment (Stip., 2/28/94), preserving the plaintiffs' right to

appeal the denial of class certification and the grant of partial

summary judgment as to the existence of private rights of action

under the federal statutes. This appeal followed.14

    14
         We raised sua sponte the question whether we had
appellate jurisdiction to consider the case since the named
plaintiffs' individual claims had been mooted after the denial of
class certification. Both parties submitted briefs in favor of
the exercise of appellate jurisdiction.     We conclude, for the
reasons set out in this footnote, that we have jurisdiction to
consider the class certification issue, but not the summary
judgment issues.
     Because the combination of the summary judgment order (to
which the class was not a party) and the stipulation left nothing
in the district court, the orders of the district court are now
final and thus subject to review.           28 U.S.C. § 1291.
Notwithstanding the fact that some of the named plaintiffs'
claims have become moot since the original denial of class
certification, this case does present live issues. United States
Parole Com. v. Geraghty, 445 U.S. 388, 100 S. Ct. 1202 (1980),
made clear that the expiration of the named plaintiff's claims
after the denial of class certification does not moot the action
brought on behalf of the class.    See also Eisenberg v. Gagnon,
766 F.2d 770, 784 (3d Cir. 1985).     Thus, the district court's
orders were final and the issues presented are not moot.
     This court, however, only has jurisdiction to review the
certification decision, in contrast to the summary judgment order
issued on the existence of the private rights of action under the
Adoption Assistance and Child Welfare Act, the Child Abuse
Prevention  and   Treatment  Act,   state  law,   and  the   U.S.
        II.    THE LEGAL REQUISITES FOR CLASS CERTIFICATION

          A.   Introduction

          To obtain class action certification, plaintiffs must

establish that all four requisites of Rule 23(a) and at least one

part of Rule 23(b) are met.     Wetzel v. Liberty Mutual Ins. Co.,

508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011 (1975).   Rule

23(a) provides that
          [o]ne or more members of a class may sue or
          be sued as representative parties on behalf
          of all only if (1) the class is so numerous
          that joinder of all members is impracticable,
          (2) there are questions of law or fact common
          to the class, (3) the claims or defenses of
          the representative parties are typical of the
          claims or defenses of the class, and (4) the
          representative   parties   will  fairly   and
          adequately protect the interests of the
          class.


FED. R. CIV. P. 23(a).

          The requirements of Rule 23(a) are meant to assure both

that class action treatment is necessary and efficient and that

it is fair to the absentees under the particular circumstances.

While numerosity addresses the first of these concerns, i.e.,


Constitution.    In affirming the Court of Appeals on the
jurisdictional ground, the Geraghty Court emphasized,
     It would be inappropriate for this Court to reach the merits
          of this controversy in the present posture of the case.
          . . . Furthermore, although the Court of Appeals
          commented upon the merits for the sole purpose of
          avoiding waste of judicial resources, it did not reach
          a final conclusion on the validity of the guidelines.
445 U.S. at 408, 100 S. Ct. at 1215.
necessity, the last three requirements help determine whether the

class action can be maintained in a fair and efficient manner.

Class treatment makes no sense if there are no common issues; the

trial court would gain nothing but logistical headaches from the

combination of the cases for trial.                      Typicality asks whether the

named plaintiffs' claims are typical, in common-sense terms, of

the class, thus suggesting that the incentives of the plaintiffs

are aligned with those of the class.                      Adequacy of representation

assures that the named plaintiffs' claims are not antagonistic to

the class and that the attorneys for the class representatives

are experienced and qualified to prosecute the claims on behalf

of the entire class.

              In    addition         to   satisfying      the   requirements    of    Rule

23(a), a putative class must also comply with one of the parts of

subsection (b).             In this case, plaintiffs seek certification

pursuant to Rule 23(b)(2) which requires that "the party opposing

the   class    has       acted       or   refused   to    act   on   grounds   generally

applicable         to    the     class,      thereby      making     appropriate     final

injunctive         relief       or    corresponding       declaratory      relief     with

respect to the class as a whole."                   FED. R. CIV. P. 23(b).

              For the reasons explained below, we conclude that the

plaintiffs satisfied all of the requirements of Rule 23, and that

the   district          court    abused      its    discretion       in   denying    class

certification on the grounds that plaintiffs failed to comply

with subsections (a)(2) (commonality), (a)(3) (typicality), and
(b)(2) (appropriateness of class relief) of Rule 23.15                      There is,

as we have noted, no dispute over numerosity ((a)(1)) or adequacy

of representation ((a)(4)).

                  The concepts of commonality and typicality are broadly

defined and tend to merge.              See 7A CHARLES A. WRIGHT,       ET AL.,   FEDERAL

PRACTICE    AND   PROCEDURE § 1764, at 247 (1986).         Both criteria seek to

assure       that    the    action    can     be   practically    and    efficiently

maintained and that the interests of the absentees will be fairly

and adequately represented.              See General Tel. Co. of Southwest v.

Falcon, 457 U.S. 147, 157 n.13, 102 S. Ct. 2364, 2370 n.13

(1982).           Despite   their     similarity,     however,    commonality        and

typicality are distinct requirements under Rule 23.                      See Hassine

v.     Jeffes,        846    F.2d     169,     176    n.   4     (3d     Cir.     1988)

("'[C]ommonality' like 'numerosity' evaluates the sufficiency of

the        class     itself,    and      'typicality'      like        'adequacy      of

representation' evaluates the sufficiency of the named plaintiff

. . ."); Weiss v. York Hosp., 745 F.2d 786, 810 (3d Cir. 1984),

cert. denied, 470 U.S. 1060 (1985).

                  We turn to a more particularized discussion of these

requisites.          We underscore at the outset, however, that neither

of these requirements mandates that all putative class members

share identical claims, see Hassine, 846 F.2d at 176-77; Weiss,
745 F.2d at 809; WRIGHT,            ET AL.,   § 1763, at 198, and that factual

      15
       Denial of class certification is reviewed for abuse of
discretion.   Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912,
923 (3d Cir. 1992); Winston v. Children & Youth Services, 948
F.2d 1380, 1392 (3d Cir.), cert. denied 112 S. Ct. 2303 (1992).
Valenti v. Mitchell, 962 F.2d 288, 299 (3d Cir. 1992).
differences among the claims of the putative class members do not

defeat certification.           See Eisenberg v. Gagnon, 766 F.2d 770 (3d

Cir.    1985)    (certifying      securities     fraud    class     action    despite

differences in injuries); Troutman v. Cohen, 661 F. Supp. 802,

811 (E.D. Pa. 1987) (certifying subclass of 1,973 nursing home

patients challenging reductions in their level of nursing care

designations over typicality and commonality objections "because

it is not the unique facts of the individual appeals which give

rise to this action but rather the decision making process").



            B.     Commonality

            The commonality requirement will be satisfied if the

named plaintiffs share at least one question of fact or law with

the grievances of the prospective class.                 Weiss, 745 F.2d at 808-

09; In re "Agent Orange" Prod. Liab. Lit., 818 F.2d 145, 166-67

(2d Cir. 1987).           Because the requirement may be satisfied by a

single common issue, it is easily met, as at least one treatise

has noted.       See H. NEWBERG & A. CONTE, 1 NEWBERG      ON   CLASS ACTIONS § 3.10,

at 3-50 (1992).           Furthermore, class members can assert such a

single common complaint even if they have not all suffered actual

injury; demonstrating that all class members are subject to the
same harm will suffice.           Hassine, 846 F.2d at 177-78; cf. Riley

v.     Jeffes,     777     F.2d   143,     147   (3d      Cir.     1985)     (finding

constitutional violation in prisoners' being subject to constant

threat of violence and sexual assault and rejecting contention

that    plaintiff        must   actually   be    assaulted       before    obtaining

relief).
              Challenges to a program's compliance with the mandates

of its enabling legislation, even where plaintiff-beneficiaries

are differently impacted by the violations, have satisfied the

commonality requirement.                  See 3B JAMES W. MOORE & JOHN E. KENNEDY,

MOORE'S FEDERAL PRACTICE ¶ 23.06-1, at 23-162 (1993) (citing cases).

Courts    appear         to    consider     "common"        such    challenges      based     on

alleged violations of statutory standards.                          See Liberty Alliance

of the Blind v. Califano, 568 F.2d 333 (3d Cir. 1977) (certifying

class of blind recipients challenging regulations for calculation

of Supplemental Security Income benefits); Appleyard v. Wallace,

754    F.2d   955        (11th    Cir.    1985)    (certifying         class      challenging

regulations pertaining to receipt of Medicaid benefits despite

factual differences among claims).                     Moreover, because they do not

also involve an individualized inquiry for the determination of

damage awards, injunctive actions "by their very nature often

present common questions satisfying Rule 23(a)(2)."                               7A WRIGHT   ET

AL.,   § 1763, at 201.

              To     the       extent      that       the    defendants        assert    that

commonality requirements cannot be met in this case because of

the individualized circumstances of the children, their argument

has been squarely rejected by the Supreme Court.                             In Califano v.
Yamasaki,      442        U.S.    682,     99     S.Ct.      2545    (1979),       plaintiffs

challenged         the     adequacy       of    the    procedures          used   to    recoup

overpayments         under       the     Social    Security         Act.      Rejecting       an

argument      that       the     applicable       statute     only     invited      suits     by

individuals, the court explained that "class relief is consistent

with the need for case-by-case adjudication," especially where
"[i]t is unlikely that differences in the factual background of

each claim will affect the outcome of the legal issue."                           Id. at

701, 99 S. Ct. at 2557.           This is especially true where plaintiffs

request declaratory and injunctive relief against a defendant

engaging in a common course of conduct toward them, and there is

therefore    no     need    for    individualized          determinations         of    the

propriety of injunctive relief.                See 7A WRIGHT       ET AL.,   § 1763 at

203.    Indeed, (b)(2) classes have been certified in a legion of

civil     rights    cases       where    commonality        findings       were        based

primarily on the fact that defendant's conduct is central to the

claims of all class members irrespective of their individual

circumstances and the disparate effects of the conduct. Id. at

219.

             In Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988),

plaintiffs claimed that the conditions at the Graterford prison

violated their constitutional rights.                      Reversing the district

court's    denial     of   certification       on    commonality      grounds,         this

court   explained     that      Rule    23   did    not   require    all     plaintiffs

actually to suffer the same injury; rather, the fact that the

plaintiffs    were     subject     to    the   injury,      that    they     faced      the

immediate threat of these injuries, sufficed for Rule 23. In

particular, the Hassine panel explained that the named plaintiffs
could attack the inadequate mental health care provided at the

prison despite the fact that none of them were in current need of

those     services;        it     was   enough      that    they     challenged         the

"inadequacy of the provision of any health care service, to which
they are entitled, and which they might at some time require."

Hassine, 846 F.2d at 178 n.5.

              Even where individual facts and circumstances do become

important to the resolution, class treatment is not precluded.

Classes can be certified for certain particularized issues, and,

under     well-established       principles        of     modern     case    management,

actions are frequently           bifurcated.        In Eisenberg v. Gagnon, 766

F.2d 770 (3d Cir. 1985), we held that a securities fraud case

against three separate partnerships, and hence three different

general      partners,    met         the    commonality        requirement.            The

individual damage determinations could be made, we explained, at

a separate phase of the trial, but the class phase could resolve

the central issue of liability for the alleged misrepresentations

and omissions.



              C.    Typicality

              The typicality inquiry is intended to assess whether

the action can be efficiently maintained as a class and whether

the named plaintiffs have incentives that align with those of

absent      class    members     so    as    to   assure      that    the     absentees'

interests will be fairly represented.                    3B MOORE & KENNEDY, ¶ 23.06-

02;   1     NEWBERG & CONTE,     §    3.13.       The     typicality        criterion   is

intended to preclude certification of those cases where the legal

theories of the named plaintiffs potentially conflict with those

of    the    absentees   by     requiring         that    the   common       claims     are

comparably central to the claims of the named plaintiffs as to

the claims of the absentees.                See Weiss, 745 F.2d at 810.
            "Typicality         entails        an   inquiry    whether   'the     named

plaintiff's individual circumstances are markedly different or .

. . the legal theory upon which the claims are based differs from

that upon which the claims of other class members will perforce

be based.'"        Hassine, 846 F.2d at 177 (quoting Eisenberg, 766

F.2d at 786); see also Hoxworth, 980 F.2d at 923; Appleyard, 754

F.2d at 958.       Commentators have noted that cases challenging the

same unlawful conduct which affects both the named plaintiffs and

the putative class usually satisfy the typicality requirement

irrespective       of     the    varying        fact   patterns     underlying      the

individual    claims.           See   1    NEWBERG & CONTE      §   3.13.       Actions

requesting declaratory and injunctive relief to remedy conduct

directed at the class clearly fit this mold.

            "[F]actual differences will not render a claim atypical

if the claim arises from the same event or practice or course of

conduct that gives rise to the claims of the class members, and

if it is based on the same legal theory."                     Hoxworth, 980 F.2d at

923 (citing Grasty v. Amalgamated Clothing & Textile Workers

Union, 828 F.2d 123, 130 (3d Cir. 1987), cert. denied, 484 U.S.

1042, 108 S.Ct. 773 (1988), and 1 NEWBERG & CONTE § 3.15). In

Hoxworth,    this       court    affirmed      over    typicality    objections     the

class certification of a (b)(3) class of securities investors who

had   purchased     or    sold    any     of    twenty-one    securities    during    a

specified period.          We explained that the claims stemmed solely

from the defendant's "course of conduct in failing to advise

purchasers    of    its    excessive       markup      policy."      Id.;   see    also
Appleyard, 754 F.2d 955 (reversing a denial of certification of a

class challenging Alabama Medicaid admissions procedures).

               Indeed, even relatively pronounced factual differences

will generally not preclude a finding of typicality where there

is a strong similarity of legal theories.                            See De La Fuente v.

Stokely-Van       Camp,      Inc.,    713       F.2d    225,      232      (7th       Cir.    1983)

(affirming      certification         of    a    class       challenging          a    farmworker

recruitment system even though some of the named plaintiffs had

not worked for the defendant company during the disputed years

and even though it was not clear that all plaintiffs had worked

in the specific employment situation as the named plaintiffs).

               Where an action challenges a policy or practice, the

named plaintiffs suffering one specific injury from the practice

can represent a class suffering other injuries, so long as all

the injuries are shown to result from the practice.                                   See General

Tel. Co. of Southwest v. Falcon, 457 U.S. at 157-59, 102 S. Ct.

at 2370-71.       In Falcon, the Supreme Court reversed certification

of a class of Mexican Americans challenging hiring and promotion

actions,       which   had    been     affirmed         by     the    Fifth       Circuit,       on

typicality grounds.            Rather than standing for the proposition

that   a   named       plaintiff       complaining           of    one     specific          injury

(Falcon's not being promoted) cannot represent a class suffering

perhaps    a    different      injury       (not       being      hired),     Falcon         merely

requires that the class representative prove that there is a

pervasive violation and that the various injuries alleged all

stem   from     that    common       violation.          Id.         See    also       Wilder    v.

Bernstein, 499 F. Supp. 980, 992-94 (S.D.N.Y. 1980) (holding that
a claim against the overall child care system states a claim

against the entire system and each of its components).

              D.   The Requisites of Rule 23(b)(2)

              Besides      meeting       the     requirements       of     Rule     23(a),

plaintiffs must also satisfy one of the requirements of 23(b).

The     district        court     alternatively          based      its        denial     of

certification on its conclusion that the plaintiffs failed this

test.     The plaintiffs maintain that their action satisfies Rule

23(b)(2), which is met if "the party opposing the class has acted

or refused to act on grounds generally applicable to the class,

thereby       making       appropriate          final     injunctive           relief     or

corresponding declaratory relief with respect to the class as a

whole."      FED. R. CIV. P. 23(b).

              In   Weiss    v.    York      Hospital     we    explained        that    this

requirement        is    almost       automatically        satisfied       in      actions

primarily seeking injunctive relief.                    745 F.2d at 811.          "When a

suit seeks to define the relationship between the defendant(s)

and the world at large, ... (b)(2) certification is appropriate."

Id.     Commentators have also noted that the language of (b)(2)

does not even require that the defendant's conduct be directed or

damaging to every member of the class.                        See 1 NEWBERG & CONTE §
4.11,   at    4-37.        It    is   the      (b)(2)   class    which     serves       most

frequently as the vehicle for civil rights actions and other

institutional reform cases that receive class action treatment.

In    fact,        the     injunctive          class    provision        was     "designed

specifically for civil rights cases seeking broad declaratory or
injunctive relief for a numerous and often unascertainable or

amorphous class of persons."         Id. at 4-39.

            What is important is that the relief sought by the

named plaintiffs should benefit the entire class.                    The general

applicability     requirement     of    (b)(2)       also    aims    to   prevent

prejudice   to   absentees   by   mandating      that       the   putative   class

"demonstrate that the interests of the class members are so like

those of the individual representatives that injustice will not

result from their being bound by such judgment in the subsequent

application of principles of res judicata." Hassine, 846 F.2d at

179.   But injunctive actions, seeking to define the relationship

between the defendant and the "world at large," will usually

satisfy this requirement.



            E.   Precedents in Child Welfare Cases

            A review of the jurisprudence in this area discloses

that many very similar lawsuits challenging the provision of

services    to   foster   children     have   been    certified      despite   the

varieties of factual differences that characterize the plaintiffs

in each case and despite the variety of legal claims any one

class may make.       Many of these cases also involve claims by

classes that include differently situated plaintiffs, who were

not, at the time of the litigation, suffering identical injuries

from the defendants' conduct.
                   For example, in a class action brought in Vermont state

court,16       the    court    certified      a    class    of   handicapped      children

challenging           the    provision       of    child     welfare        services     over

defendants'           commonality      and     typicality        objections      based    on

factual differences of class members. The court explained:
          Certainly, the plaintiffs will have different stories
          to tell.   However, it is apparent from the pleadings
          that plaintiffs legal claims are based on a common
          factual predicate:   the defendants alleged failure to
          fulfill their duties in providing for a coordinated
          system that protects the welfare of class members. The
          individual treatment of handicapped youths, while
          important and crucial to plaintiffs' case, only serves
          to support a larger inquiry into the functioning of the
          state structure appropriated for administering programs
          that serve the handicapped.


Jane T. v. Morse, No. S-359-86 WnC, slip op. at 4, (Vt. St. Ct.,

June 12, 1987).

                   Courts have also certified class actions alleging a

variety of legal claims falling under the rubric of a systemic

failure to provide certain child welfare services.                              See e.g.,

LaShawn A. v. Dixon, 762 F. Supp. 959, 960 (D.D.C. 1991).                                 In

that        case    the     class    challenged     the     alleged    failure     of    the

District of Columbia Department of Human Services to initiate

timely       investigations          into    reports   of    abuse     or    neglect,     the

failure to provide services to families to prevent the placement

of children in foster care, the failure to place those who may

not     safely       remain     at    home    in   appropriate       foster     homes    and

institutions, the failure to develop case plans for children in

       16
          Vermont's class certification statute, V.R.C.P. 23, is
almost identical to Federal Rule 23.
foster care, and the failure to make permanent placements.                                      The

class included foster children under the care of the DHS and

children reported as abused or neglected though not yet in the

care of the DHS.           The court certified the class.

               Another federal court allowed a class of children in

the custody of a child welfare agency to challenge the agency's

failure to provide children with follow-up caseworkers to work

with the family, to arrange for appropriate services, and to

oversee the fulfillment of the children's medical and educational

needs.      The action requested a declaratory judgment that the

policies       violated       the     Fourteenth          Amendment,            an     injunction

requiring      the    defendant          to     submit     a    plan       assuring       legally

adequate care and treatment, and the appointment of a master to

determine       the    adequacy          of     the     plan     and       to        oversee    its

implementation.            The court granted class certification.                         B.H. v.

Johnson, 715 F. Supp. 1387, 1389 (N.D. Ill. 1989).

            There are many additional examples of certification of

class    actions      asserting          a    broad     range   of     grievances         closely

resembling      those       alleged      in     this    case.        See    e.g.,       Smith   v.
Organization of Foster Families, 431 U.S. 816, 822 n.7, 97 S. Ct.

2094, 2098 n.7 (1977) (perceiving no error in district court's

certification         of     foster          parents,    children,         and        intervening

natural parents); Lynch v. Dukakis, 719 F.2d 504, 506 n.1 (1st

Cir. 1983) (affirming district court's preliminary injunction, in

favor of a class of foster children and their natural and foster

families, ordering state social services department to comply

with    case    plans       and     to       review     obligations         of       foster    care
maintenance program); Eric L. v. Bird, No. 91-376-D slip op.

(D.N.H. Dec. 16, 1993) (certifying class of all New Hampshire

children concerning whom the State Division of Children and Youth

Services (DCYS) had received a complaint of abuse or neglect, who

are the subject of a petition brought pursuant to state law or

are   entitled    to   services   from   DCYS   as   a   result   of   court

proceedings, and all children with disabilities who are placed

either in twenty-four hour residential facilities or in foster

care and whose families are in need of support services); David

C. v. Leavitt, No. 93-C-206W slip op. (D. Utah May 5, 1993)

(certifying over adequacy-of-representation objections a class of

all children who are or will be in Utah's DHS custody or will be

placed in a foster home, a group home, institutional care or a

shelter and children who are or will be known to DHS by virtue of

report of abuse or neglect).

            Admittedly, these cases did not (with the exception of

Jane T.) discuss commonality and typicality; nevertheless, the

trial judges had to be satisfied that the requisites of Rule 23

(or its state law equivalent) were met in order to certify the

classes.     We find it persuasive that these courts have found

quite similar actions to comply with Rule 23's requirements.



           III.   DID THE DISTRICT COURT ABUSE ITS DISCRETION
                    IN DENYING CLASS CERTIFICATION?



            Appellants contend that the district court abused its

discretion when it denied certification.        We agree.    In our view,
the district court applied an overly restrictive legal standard

in evaluating the requirements of Rule 23 and in denying class

certification.                 Although     the     court    took    cognizance      of    cases

holding that common questions need only exist -- not predominate

-- for (b)(2) actions, it nevertheless proceeded to demand higher

demonstrations               of   commonality        and    typicality      than     the      rule

requires.               It   is    axiomatic       that     errant    conclusions        of   law

constitute an abuse of discretion.                            See International Union,

United Auto, etc. v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir.

1987), cert. denied, 499 U.S. 921, 111 S. Ct. 1313 (1991).



                  A.     Commonality

                  As to commonality, the district court concluded that:

"Not        one    of    the      common    legal    issues     asserted     by     plaintiffs

applies to every member of the proposed class . . . .                                         The

children's             claims      are     based    upon     different      legal     theories

depending on the individual circumstances of that child . . . .

The services required to meet the needs of one child are vastly

different from that of another child."                         (Mem. Op. at 7).17          These

statements are at odds with the applicable standard.                                Plaintiffs

are challenging common conditions and practices under a unitary

regime.           All the children in the class are subject to the risk

that they will suffer from the same deprivations resulting from

the    DHS's       alleged        violations.         Because       the   nature    of    foster


       17
       Unless otherwise specified, Mem. Op. citations refer to
the Memorandum and Opinion issued on January 6, 1992.
placement     is    transitory       and    thus    inherently     variable,     it   is

unreasonable to require that all plaintiffs suffer from the same

injury simultaneously.

              Defendants maintain that "[p]roving systemwide failure

does not establish that the law has been violated as to any

child."   (Br.      of   Appellees     at    16).       However,     the    commonality

standard requires only that a putative class share either the

injury or the immediate threat of being subject to the injury.

See supra at typescript 18.            Here, systemwide deficiencies either

violate class members' rights currently or subject them to the

risk of such a violation.

              Furthermore, all of the plaintiffs seek to force the

DHS to comply with its statutory mandates, and all of their

injuries alleged here would be cured if DHS remedied the systemic

deficiencies.        Insofar as the children challenge the scheme for

the provision of child welfare services, their claims share a

common legal basis.          Class certification for a similar attack on

New    York's      child    welfare        system     was   upheld     in   Wilder     v.

Bernstein, 499 F. Supp. 980, 994 (S.D.N.Y. 1980) ("[In alleging

that   defendants]         created    an    overall     child-care      system   which

discriminates on the basis of race and religion, plaintiffs have

stated    a   claim      against     the     entire    system    and    each    of    its

components.").           Thus, we find the            plaintiffs' attack on the

DHS's systemic deficiencies in providing legally mandated child

care services to be a sufficiently common legal basis to support

class certification here.
             The    differing         degree      and   nature      of    the    plaintiffs'

injuries also do not preclude a finding of commonality.                             Just as

in Califano,        where     the     amounts      of   each    class      member's      claim

differed but where the class members nonetheless shared a common

statutory claim, the putative class members in this case share

the common legal claim that DHS's systemic deficiencies result in

widespread     violations           of    their    statutory        and    constitutional

rights,     irrespective         of      their    varying      individual         needs    and

complaints.        As in Califano, where the plaintiffs challenged the

conduct of the defendant towards the class, the children here

challenge DHS's conduct, which is generally applicable to them.

Also, as in Califano, where it did not matter that the amounts of

the individuals' claims differed, it does not matter here that

the children suffer in varying ways from the DHS's violation of

its statutory mandates.

             When it concluded that "not one factual issue pertains

to the entire proposed class," the district court committed the

error of overly fragmenting the plaintiffs' claims.                               A similar

approach taken in another case, Ward v. Luttrell, 292 F. Supp.

165 (E.D. La. 1968) (denying certification to a claim by female

workers challenging state labor laws that denied overtime pay),

has been characterized as "contrary to the clear language of the

rule" and "irreconcilable with the majority of decisions on the

common question issue."               See 1 NEWBERG & CONTE §3.11, at 3-59.                 It

is   true    that       each     plaintiff         here     has      his    or     her     own

circumstances,          but    every       plaintiff        shares         the    essential

circumstance       of    being      in    the     custody      or   the    care     of    DHS.
Individual          factual    differences             do        not     affect     the      central

allegation          that     the     DHS     violates             various         statutory      and

constitutional rights in its provision of child care services to

the class.

               Because of the district court's capacity to bifurcate

(or trifurcate) the proceedings, the individual circumstances of

the children, even if they affect the issues presented by this

case, would not preclude certification.                                And in this suit for

declaratory relief, the court can substantially avoid examining

those individualized circumstances, for the relief requested by

the     plaintiffs         focuses      entirely            on     the     effort       to    reform

defendants' conduct so that it complies with the various legal

provisions          raised    here.          Thus,          while        the      children      will

undoubtedly be affected by the district court's rulings, the

court       need    not    consider        the    individual             children's          peculiar

circumstances in fashioning its order.

               The court's heavy emphasis on the factual differences

of    the    6,000     children      also        suggests          that    it     did     not   take

sufficient         cognizance      of      the    nature          of     the    relief       sought.

Because       the    complaint       does        not    seek           damages,     the      factual

differences are largely irrelevant.                              The complaint prays for

declaratory and injunctive relief.                      Factual differences among the

situations of the plaintiffs will thus not preclude the district

court from determining whether the class claims are meritorious,

or from ordering the appropriate relief in the event that they

are.
             The     district     court's    rendering      of     the    commonality

requirement     also    goes      astray    in   its    analysis    of    Hassine      v.

Jeffes, 846 F.2d 169 (3d Cir. 1988).                   Notwithstanding the clear

language of that decision, the district court here seems to have

relied on Hassine to suggest that all of the named plaintiffs

must suffer from the same harm.             (Mem. Op. at 7).           The plaintiffs

in Hassine, however, complained of over-crowding, though they

were not actually double bunked, and of deficient medical and

mental health services, though they did not at that time require

either of those services.               It was enough for the Hassine court

that some plaintiffs might at some point require a variety of

those services and thus be subjected to the risk of deprivation

by    the   pervasively      deficient     system.       846    F.2d     at    178   n.5.

Obviously,     not    all    of   the    Hassine   class       members    would      need

medical services, or the same medical services.                    By the reasoning

of Hassine, then, the fact that some of the plaintiffs here do

not need some of the services that are allegedly deficient does

not, contrary to the district court's conclusion, preclude them

from attacking a system that fails to provide those services.

             The cases cited by defendants, where certification was

denied on commonality grounds, are also easily distinguished.                          In

Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990), the court denied
certification of a class of government employees who had suffered

adverse employment consequences allegedly resulting from improper

partisan concerns.          In that case, unlike this one, whether or not

the     asserted      violations         existed       depended     on        individual

determinations of the nature of the position of each plaintiff.
Here, the violations exist independently of individual children's

circumstances; it is established by reference to the objective

statutory and constitutional criteria.18

                  In Stewart v. Winter, 669 F.2d 328 (5th Cir. 1982),

prisoners challenging the conditions of prisons throughout the

state of Mississippi were denied certification on commonality

grounds.          The Stewart court was daunted by the prospect of 82

separate hearings to evaluate under the appropriate totality-of-

the     circumstances          test   whether    each    of   the    counties'     jails

violated the plaintiffs' Eighth Amendment rights.                       The situation

here        is   quite   different.        The   plaintiffs      challenge    unitary

systems and a much more localized service, i.e., the provision of

child        welfare     services     in   Philadelphia.            Furthermore,     the

question of liability in this case can be evaluated relative to

the applicable (and generalized) statutory standards, unlike in

Stewart          where   the   Eighth   Amendment       claims   would    necessitate

individualized hearings.              At all events, we are dubious as to the

correctness of Stewart, and note that in Pennsylvania a similar

statewide class action has been certified and is ongoing (at the

trial stage).            See Austin v. Pennsylvania Dep't of Corrections,
No. 90 Civ. 7497 (E.D. Pa. certified March 5, 1992)



       18
      Defendants also cite In re Fibreboard Corp., 893 F.2d 706
(5th Cir. 1990), as an example of a case that failed to meet
commonality requirements.      However, this case is clearly
distinguishable.   Fibreboard was a mass tort action seeking
damages, and certification was denied on the basis that common
issues did not predominate, the (b)(3) inquiry, not that there
was no common issue, the proper (a)(2) inquiry.
              In contrast to the cases we have distinguished, this

case clearly presents common legal issues under the applicable

standard.       The children challenge DHS's pattern of conduct, which

is    subjecting       them    all      to    violations         of    their       statutory       and

constitutional           rights.          Because         of    the     dearth         of    trained

caseworkers, for example, DHS (allegedly) fails to investigate

reports of abuse and neglect promptly or adequately and fails to

reliably      provide      the    children         in     its    care       with      written      case

plans, with appropriate placements, with proper care while in

custody, and with periodical dispositional hearings.                                         Similar

violations of the rights of children in custody to be free from

harm    can    (allegedly)         be     traced        to     the    scarcity         of   properly

trained       foster      parents        or    to       DHS's        lack    of       an    adequate

information system.

              Moreover,        trial      will      not      require        an     individualized

inquiry into a vast network of institutions.                                     It is only the

Philadelphia DHS's provision of the mandated services that is at

issue,    and      the   nature      of      the    violations         can       be    verified     by

reference to the applicable statutes; it is not necessary to

examine each plaintiff's circumstances to evaluate the claims.

The    fact     that     all     plaintiffs         are        subject       to       the   risk    of

deprivation of services to which they are currently entitled (or

which they may at some point in the future require) suffices to

support their common claim against DHS.

              B.    Typicality

              The      district      court         also      misconstrued             the   relevant

standard of typicality.                 As with its analysis of the commonality
issue, the court appeared to rely on the proposition that the

plaintiffs were not challenging precisely the same conditions and

practices because the services required by law differ depending

on a child's individual situation.                However, General Tel. Co. of

the Southwest v. Falcon, supra, assures that a claim framed as a

violative practice can support a class action embracing a variety

of injuries so long as those injuries can all be linked to the

practice.       Plaintiffs in this case attack a systemic failure by

DHS to provide a broad range of legally mandated services.                             At

any one time, the plaintiffs do not suffer from precisely the

same deficiency, but they are all alleged victims of the systemic

failures.        Moreover,     they     each    potentially        face    all   of   the

system's        deficiencies.           A    child        not    currently       needing

psychological services may well require such services sometime

while in DHS custody.             A child lucky enough to be receiving

permanency planning, for example, faces the immediate threat of

losing that service in a system characterized by the widespread

absence of such services.              Because being subject to the risk of

an injury suffices under Hassine for both the commonality and the

typicality inquiries, plaintiffs can allege these harms.

            Furthermore,        the     fact     that      the    common     theme     of

attacking       DHS's    systemwide     failure      to    comply   with    its   legal

mandates is equally central to the claims of the named plaintiffs

as   it    is    to     the   claims    of     the   absentees       reinforces       the

characterization of the plaintiffs' claims as typical.                           Indeed,

this theme is central to each plaintiff.                        It bears remembering

that the plaintiffs here seek only injunctive and declaratory
relief; there are no other claims that could compromise the named

plaintiffs' pursuit of the class claims.

              Because there are no individual claims as such, the

differences among the plaintiffs do not affect the central claim

that DHS violates a variety of the children's (putative class

members')      constitutional        and    statutory        rights      by     failing    to

provide    mandated       welfare     services.          We       emphasize      that     the

individual      differences     in    the    children's           circumstances         might

indeed     militate      against     certification           if    the    action       sought

certification         under   23(b)(3)      because      a    court      would     need    to

evaluate      those    differences     in    the    event         that   the    plaintiffs

prevailed and were entitled to monetary damages.                           In fashioning

injunctive relief, however, a court would focus on the defendants

rather than on the plaintiffs. Whether there are fifty or 6,000

plaintiffs, as in this case, the court's task is essentially the

same.      The court would not need to assure that every child

received an "appropriate" case plan, for instance.                            Instead, the

court would assure that the DHS had an adequate mechanism for

generating and monitoring appropriate case plans.                          To the extent

that some of the claims raised by the plaintiffs truly do require

the court to engage in individualized determinations, the court

retains the discretion to decertify or modify the class so that

the   class    action     encompasses       only   the       issues      that    are    truly

common to the class.          See Fed. R. Civ. P. 23(c)(4).

              Moreover, the prospect of class certification in this

case does not present the sorts of dangers that the typicality

requirement was intended to avoid.                 There is no danger here that
the named plaintiffs have unique interests that might motivate

them to litigate against or settle with the defendants in a way

that prejudices the absentees.                    Many courts have noted that the

"individual      interest       in    pursuing       litigation    where      the   relief

sought is primarily injunctive will be minimal."                       Weiss, 745 F.2d

at 808 (citing 7 CHARLES WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &

PROCEDURE § 1771 (1972)).                 Indeed, because this suit seeks only

declaratory      and    injunctive          relief,    the     named   plaintiffs      are

simply not asserting any claims that are not also applicable to

the absentees.          The common claims here are the only claims and

must perforce occupy the same position of centrality for all

class    members.         The        putative       class    clearly   satisfies       the

typicality    requirement            of    Rule    23(a)(3);     the   district      court

abused its discretion in ruling that it did not.

            C.     The 23(b)(2) Showing

             The   district          court    also    found     that   the    plaintiffs

failed   to      make    the    requisite         showing      under   Rule    23(b)(2),

concluding       that    the    claims        for     relief    were   not     generally

applicable to the class. (Mem. Op. at 21).                        In so holding, the

court failed to give effect to the proper role of (b)(2) class

actions in remedying systemic violations of basic rights of large

and often amorphous classes.                 While it is true that not all of

the orders issued will immediately benefit every plaintiff, every

plaintiff     will      benefit       from    relief        designed   to    assure    DHS

compliance with the applicable standards.

             Plaintiffs have alleged that systemic failure causes

the DHS to violate various mandates under federal statutory and
constitutional provisions.               Because the children in the system

are comparably subject to the injuries caused by this systemic

failure, even if the extent of their individual injuries may be

affected by their own individual circumstances, the challenge to

the system constitutes a legal claim applicable to the class as a

whole.     An order forcing the DHS to comply with their statutory

and   constitutional         mandates     would     constitute        relief      generally

applicable to the entire putative class.                      Indeed, the violations

alleged here are precisely the kinds targeted by Rule 23(b)(2).

The writers of Rule 23 intended that subsection (b)(2) foster

institutional          reform   by      facilitating         suits     that       challenge

widespread      rights       violations      of    people     who    are    individually

unable    to    vindicate       their    own      rights.       See       Rules    Advisory

Committee Notes to 1966 Amendments to Rule 23, 39 F.R.D. 102

(1966); 1 Newberg & Conte, § 4.11 at 4-39.

               The fact that the plaintiffs in this case seek only

injunctive       and     declaratory      relief,       not     individual         damages,

further    enhances       the   appropriateness         of    the     class     treatment.

Clearly,    this       action   aims    to     define   the    relationship          of the

defendants      to     the   universe     of      children    with     whose      care   the

defendants are charged.           Plaintiffs simply ask the district court

to declare the DHS's current provision of child welfare services

to the plaintiffs to be violative of the cited statutory and

constitutional provisions and to order DHS to implement a system

that would enable it to comply with its legal mandates in the

provision      of    these    services.         Furthermore,        all    of     the   class

members will benefit from relief which forces the defendant to
provide, in the manner required by law, the services to which

class members either are currently or at some future point will

become entitled.

           While it is true that commonality, typicality, and the

Rule 23(b)(2) general applicability requirements all manifest a

concern about judicial efficiency and manageability, the district

court's arguments on this score miss the mark.                The district

court clearly erred by finding that "[i]t would be impossible to

conceive of an Order this court could make granting class-wide

injunctive relief which could address the specific case-by-case

deficiencies in DHS's performance . . . ." (Mem. Op. 10/13/93 at

4-5).    But a court could, for example, order the DHS to develop

training protocols for its prospective foster parents.               Such an

order would not, contrary to the district court's view, "create

an enforcement problem of staggering proportions."               Id.     The

district court will thus not need to make individual, case-by-

case determinations in order to assess liability or order relief.

Rather, the court can fashion precise orders to address specific,

system-wide deficiencies and then monitor compliance relative to

those orders.             Other    courts   have   ordered     the     relief

required by these types of cases without finding it to be either

unworkable or unenforceable.       For example, in L.J. v. Massinga,
699 F.Supp. 508, 510 (D. Md. 1988), the court approved a consent

decree   essentially   embodying    the   terms    of   the    preliminary

injunction it had previously issued and implemented.            The decree

required the defendant to review the status of each foster home

where there had been a report of maltreatment; visit each child
in a foster home on a monthly basis; visit each child who had

been the subject of a report of maltreatment on a weekly basis;

assure sufficient staff and resources to ensure that appropriate

medical care was rendered; and provide a written copy of any

complaint of maltreatment of a foster child to the juvenile court

and the child's attorney.       This is precisely the sort of order

that is requested in this case.        Because this suit challenges

conduct generally applicable to the class and because the court

can enter appropriate declaratory and injunctive relief, this

action patently satisfies the (b)(2) standard.



                          IV.    CONCLUSION

           Because the claims alleged in the plaintiffs' complaint

clearly meet the requirements of Rule 23, the district court's

determination   that   they   did   not   constitutes   an   abuse   of

discretion.   We will therefore reverse the orders of the district

court and remand for further proceedings consistent with this

opinion.   In so doing, we intimate no view on the merits, nor,

should the plaintiffs succeed on merits, on the scope of the

court's remedial power or on the appropriate remedy.
