In a matter of first impression for the court, the US Court of Appeals for the Third Circuit held that when a class action brought under FRCP 23(b)(2) seeks only injunctive and declaratory relief, ascertainability of the class is not a requirement for class certification (Shelton v. Bledsoe, No. 12-4226, (3d Cir. Jan. 7, 2015)).

Plaintiff Norman Shelton is an inmate at the United States Penitentiary, Lewisburg (Pennsylvania) assigned to a prison housing unit for inmates having violent tendencies or a history of prison gang involvement. He alleged that the prison's housing practice violated the Eighth Amendment because it places inmates who are known to be hostile toward each other in the same cell and because prison guards fail to intervene in the resulting inmate-on-inmate violence. Shelton proposed a class under FRCP 23(b)(2) consisting of all persons who are or will be imprisoned at Lewisburg and assigned to that housing unit. Shelton sought only injunctive and declarative relief on behalf of the class. The district court denied Shelton's motion to certify the class, finding that the class was not "objectively, reasonably ascertainable." Shelton appealed.

The Third Circuit reversed and remanded for further consideration. The court noted that ascertainability is a judicially created requirement for class actions and distinguished between class actions filed under FRCP 23(b)(2) and class actions filed under FRCP 23(b)(3). A Rule 23(b)(2) class action seeks an indivisible declaratory or injunctive remedy which is applicable to all class members. Further, members of a Rule 23(b)(2) class do not have a right to opt out of the class. Since a remedy obtained by one member naturally affects all members and there is no right to opt out, it is not critical to ascertain the identities of individual class members in a Rule 23(b)(2) class. Conversely, in class actions filed under FRCP 23(b)(3), ascertaining the individual members of the class is critical because questions of law or fact common to all class members must predominate and class members have the right to opt out of the class.

The Third Circuit joins the US Courts of Appeals for the First and Tenth Circuits in finding it improper to require ascertainability for a Rule 23(b)(2) class. The court also noted that decisions by the US Courts of Appeals for the Second and Fifth Circuits support this position, and a recent US Supreme Court case involving class certification under Rule 23(b)(2) lacked any inquiry into ascertainability (see Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)).

For additional Practical Law resources on ascertainability, see: