On its face, Rule 23(b)(2) of the Federal Rules of Civil Procedure seems tailor-made for lawsuits against government. Rule 23(b)(2) allows a class action when "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." This situation arises frequently in people's dealings with government agencies: recipients of public benefits and consumers using public utilities, for example, constitute large groups of people all subject to identical government policies who might seek injunctive relief. Litigants attempting to invoke Rule 23(b)(2) against government agencies have encountered an unforeseen obstacle, however, often referred to as the "necessity doctrine." Many courts have declined to certify classes when "[n]o useful purpose would be served by permitting [the] case to proceed as a class action." These denials of class certification are premised on the idea that all putative plaintiffs would benefit from a favorable finding and the resulting injunctive or declaratory relief, and thus class certification is unnecessary. For example, one court denied class certification because "[t]he court could reasonably assume the good faith of a defendant such as the Chief Clerk of a state court especially given his express willingness to follow the court's injunction." Dependence on the good faith of the defendant creates a problem for future potential litigants. If rulings are limited to the individual litigants in the case, those who are not parties to the original lawsuit cannot invoke the judgment, but must instigate new proceedings if the defendant does not adhere to the ruling. Particularly for people whose resources and access to the legal system are limited, the costs of beginning new proceedings can be prohibitive. In addition, even litigants with the resources to begin new proceedings can encounter difficulties enforcing judgments against government entities.
There Is Always a Need: The "Necessity Doctrine" and Class Certification Against Government Agencies,
Mich. L. Rev.
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