Planned Parenthood Arkansas & Eastern Oklahoma et al v. Selig

Filing 86

ORDER granting plaintiffs' 50 motion for class certification. Counsel for PPH and the Jane Does, Jennifer Sandman and Bettina Brownstein, are appointed as class counsel for this action. The Court directs the parties to confer to submit a proposed class notice within 10 days of the date of this Order. Signed by Judge Kristine G. Baker on 1/25/2016. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLANNED PARENTHOOD ARKANSAS
& EASTERN OKLAHOMA, d/b/a
PLANNED PARENTHOOD OF THE
HEARTLAND; JANE DOE #1; JANE DOE
#2; and JANE DOE #3
v.

PLAINTIFFS

Case No. 4:15-cv-00566-KGB

JOHN M. SELIG, DIRECTOR, ARKANSAS
DEPARTMENT OF HUMAN SERVICES, in his
official capacity

DEFENDANT

ORDER
Before the Court is the motion for class certification filed by plaintiffs Planned
Parenthood of Arkansas & Eastern Oklahoma, d/b/a Planned Parenthood of the Heartland
(“PPH”) and Jane Doe #1, Jane Doe #2, and Jane Doe #3 (“Jane Does”) (Dkt. No. 50).
Defendant John M. Selig, sued in his official capacity only as the Director of the Arkansas
Department of Human Services (“ADHS”), has responded in opposition to the motion for class
certification (Dkt. No. 71), and PPH and the Jane Does have filed a reply (Dkt. No. 72). The
Court conducted a hearing in this matter on January 14, 2016, at which counsel for all parties
were present. ADHS filed a post-hearing supplemental response to plaintiffs’ motion for class
certification (Dkt. No. 82). For the reasons that follow, plaintiffs’ motion for class certification
pursuant to Federal Rule of Civil Procedure 23 is granted.
I.

Background

PPH operates health centers in Little Rock, Arkansas, and Fayetteville, Arkansas, and has
done so for over 30 years. These centers provide family planning services to men and women,
including contraception and contraceptive counseling, screening for breast and cervical cancer,

pregnancy testing and counseling, and early medication abortion.

PPH states that, at its

Arkansas health centers, PPH offers only early medication abortions, services that Arkansas
Medicaid does not cover in virtually all circumstances (Dkt. No. 12, ¶ 17). PPH and the Jane
Does represent that Medicaid payment for abortion is not at issue in this case (Dkt. No. 12, ¶ 17).
PPH also operates a pharmacy that serves Arkansas residents which allows patients to have their
birth control prescriptions automatically refilled. During the 2015 fiscal year, PPH represents
that it provided approximately 1,000 health care visits and filled more than 1,100 prescriptions,
for over 500 women, men, and teens insured through Medicaid in Little Rock and Fayetteville,
Arkansas. In 2014, almost 40% of PPH’s Little Rock, Arkansas, patients, and 15% of its
Fayetteville, Arkansas, patients were insured through Medicaid, according to PPH. Plaintiffs
Jane Does are patients of PPH who receive their care through the Medicaid program.
PPH and the Jane Does allege that ADHS, through its director Mr. Selig, notified PPH on
August 14, 2015, that ADHS was terminating its Medicaid provider agreements, effective 30
days from the date of the letter (Dkt. No. 16-1, at 19). PPH and the Jane Does further allege that
this initial notification letter provided no reason for the termination of the agreements; they assert
that this initial termination appears to stem from PPH’s association with Planned Parenthood and
abortion (Dkt. No. 12, ¶ 35). To support their contention that ADHS wrongfully suspended
Medicaid payments to PPH, PPH and the Jane Does cite Arkansas Governor Asa Hutchinson’s
press release from August 14, 2014, the day the termination letter was sent to PPH. In this
release, Governor Hutchinson states that he directed ADHS to terminate the agreements because
“[i]t is apparent that after the recent revelations on the actions of Planned Parenthood, that this
organization does not represent the values of the people of our state and Arkansas is better served
by terminating any and all existing contracts with them.” (Dkt. No. 12, ¶ 35).

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PPH and the Jane Does further assert that Governor Hutchinson’s reference to “recent
revelations” regarding Planned Parenthood refers to recent videos released about Planned
Parenthood, claiming that some Planned Parenthood affiliates allow patients to donate fetal
tissue to medical research following abortions (Dkt. No. 12, ¶ 35).
ADHS followed this August 14, 2015, letter with a second termination letter dated
September 1, 2015, that ADHS characterizes as a “for cause” letter. PPH and the Jane Does
allege that this second letter states solely that it “is based in part upon the troubling
circumstances and activities that have recently come to light regarding the national Planned
Parenthood organization, Planned Parenthood of the Heartland, and other affiliated Planned
Parenthood entities, all of which are affiliated with [PPH],” and that “there is evidence that
[PPH] and/or its affiliates are acting in an unethical manner and engaging in what appears to be
wrongful conduct.” (Dkt. Nos. 12, ¶ 37; 16-1, at 21 ̶ 26). The letter also states that PPH is
“welcome to submit information or offer comments on the nationally recognized videos that
have raised questions on the conduct of Planned Parenthood.” (Dkt. Nos. 12, ¶ 37; 16-1, at 21 ̶
26).
PPH and the Jane Does filed a motion for temporary restraining order and preliminary
injunction on September 11, 2015 (Dkt. No. 3). This motion alleges that, starting on September
21, 2015, absent an injunction, patients insured through the Medicaid program who choose to get
family planning and other health care services at PPH will lose access to services, will lose their
provider of choice, will find their family planning services interrupted, and will be left with few
or no adequate alternative providers (Dkt. No. 12, ¶¶ 8, 34). As for PPH, PPH and the Jane Does
contend that, “[i]f PPH is forced to stop providing care through the Medicaid program, a dire
situation will become critical. The remaining providers will be simply unable to absorb PPH’s

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patients, leaving those patients without access to crucial medical services.” (Dkt. No. 12, ¶ 43).
Further, they allege that “[w]ithout Medicaid reimbursements, PPH may be unable to continue to
provide services in the same manner and may be forced to lay off staff members and/or reduce
hours at one or both health centers.” (Dkt. No. 12, ¶ 49). They also allege that, “if PPH’s
termination from the Medicaid program is allowed to take effect for some period of time and it
then is later allowed to become a Medicaid provider again, some patients will remain confused
about whether PPH is a Medicaid provider in good standing, and therefore will not return as
patients.” (Dkt. No. 12, ¶ 49). PPH and the Jane Does claim that the suspension of Medicaid
payments violates certain provisions of the Medicaid statutory and regulatory scheme set out in
42 U.S.C. § 1396 and violates their rights under the First and Fourteenth Amendments to the
United States Constitution. They have sued ADHS’s director, Mr. Selig, in his official capacity
only seeking declaratory and injunctive relief (Dkt. No. 12, at 15).
This Court granted PPH and the Jane Does’ motion for temporary restraining order (Dkt.
No. 21). The Court temporarily restrained ADHS “for a period of 14 days from the date of entry
of this Order from suspending Medicaid payments to PPH for services rendered to Medicaid
beneficiaries, including but not limited to the Jane Does.” (Dkt. No. 21, at 19). At that stage of
the proceedings, the Court conducted a status conference with counsel concerning a briefing
schedule and potential hearing. For the reasons set forth in its Order, the Court permitted ADHS
to obtain evidentiary material from the Jane Does (Dkt. No. 25). The Court did not regulate the
number, scope, or timing of the written questions ADHS submitted to the Jane Does. The Court
instructed counsel from both sides to meet and confer on these matters, and although the Court
did later enter an Order clarifying its earlier Order on the permitted discovery, the Court was not
asked to resolve or clarify any other issues in regard to the questions submitted to the Jane Does

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(Dkt. No. 32). Also at this stage of the proceeding, the Court raised with counsel again and
directed counsel to brief standing issues.
The Court then entered a preliminary injunction more limited in scope – limiting the
relief granted to just the Jane Does (Dkt. Nos. 44, 45). The Court then granted PPH and the Jane
Does leave to file a second amended complaint (Dkt. No. 63).

In their second amended

complaint, PPH and the Jane Does add class action allegations (Dkt. No. 64, ¶¶ 50 ̶ 55).
On October 6, 2015, ADHS filed a motion for leave to notice four depositions (Dkt. No.
56). The Court conducted a status hearing on the motion. ADHS requested leave to depose Jane
Doe #1, Jane Doe #2, and Jane Doe #3 and to conduct a Federal Rule of Civil Procedure 30(b)(6)
deposition of a PPH representative before responding to the pending motion for class
certification. ADHS claims that it seeks these depositions to test, at least, the typicality and
adequacy requirements for class certification (Dkt. No. 55, at 4). For the reasons set forth in its
Order, the Court denied the motion for leave to notice four depositions (Dkt. No. 66).
PPH and the Jane Does are now asking this Court to certify a class, and ADHS at the
hearing conducted in this matter orally renewed its request to conduct precertification discovery.
II.

Discussion

PPH and the Jane Does seek class-action certification under Rule 23 of the Federal Rules
of Civil Procedure for “the Jane Doe plaintiffs and all other persons similarly situated, namely:
patients who seek to obtain, or desire to obtain, health care services in Arkansas at PPH through the
Medicaid program.” (Dkt. No. 50, at 1).

To obtain class certification, plaintiffs must meet all four requirements of Federal Rule of
Civil Procedure 23(a), commonly referred to as numerosity, commonality, typicality, and
adequacy of representation, and must fall into one of the categories of Rule 23(b). Amchem
Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997); Blades v. Monsanto Co., 400 F.3d 562,
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568 ̶ 69 (8th Cir. 2005); Fed. R. Civ. P. 23. The party seeking certification bears the burden of
showing that the class should be certified and that the requirements of Rule 23 are met. Coleman
v. Watt, 40 F.3d 255, 258 ̶ 59 (8th Cir. 1994). The district court is afforded broad discretion to
decide whether certification is appropriate. Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372
(8th Cir. 2013) (quoting Prof’l Firefigthers Ass’n of Omaha, Local 385 v. Zalewski, 678 F.3d
640, 645 (8th Cir. 2012)). According to the Eighth Circuit:
A district court considering a motion for class certification must undertake a
rigorous analysis to ensure that the requirements of Rule 23(a) are met.
Frequently that rigorous analysis will entail some overlap with the merits of the
plaintiff’s underlying claim, and the district court may resolve disputes going to
the factual setting of the case if necessary to the class certification analysis. The
court’s factual findings with respect to the class certification question are
reviewed for clear error.
Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011) (internal quotations and citations
omitted). The Court will consider Rule 23(a) and (b) in turn.
A.

Rule 23(a)

To certify a class pursuant to Rule 23(a)(1), this Court must first make a finding that “the
class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1).
PPH and the Jane Does assert that the class is so numerous that joinder of all members is
impracticable. In support of this assertion, plaintiffs note that, in fiscal year 2015, PPH provided
care to over 500 Arkansas women, men, and teens insured through Medicaid, and in the previous
fiscal year, PPH saw more than 1,100 women, men, and teens insured through Medicaid (Dkt.
No. 51, at 3). PPH and the Jane Does contend that the size of the proposed class readily meets
the numerosity requirement, as joinder of all of PPH’s Medicaid patients is impractical.
PPH and the Jane Does also argue that “joinder of each of PPH’s individual Medicaid
patients is impractical for the additional reason that many patients may be hindered in their
ability to join the litigation by the highly sensitive and personal nature of reproductive health
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care decisions, and because of their fear of becoming the targets of anti-abortion or anti-Planned
Parenthood hostility.” Singleton v. Wulff, 428 U.S. 106, 117 (1976) (“[an abortion patient] may
be chilled from such assertion [of her rights] by a desire to protect the very privacy of her
decision from the publicity of a court suit.”); Gold Cross Ambulance & Transfer v. City of
Kansas City, 705 F.2d 1005, 1016 (8th Cir. 1983) (characterizing the abortion decision at issue
in Singleton as “an intimate, private decision” that hindered patients’ ability to assert their
rights); Planned Parenthood of Minnesota, Inc. v. Citizens for Cmty. Action, 558 F.2d 861, 865
n.3 (8th Cir. 1977) (recognizing that “the pregnant woman’s ability to assert her own rights is
beset with obstacles,” including “her desire to protect her privacy”).
ADHS does not dispute that the numerosity requirement has been met. Plaintiffs have
provided sufficient evidence to satisfy their burden as to this factor. See Boyd v. Ozark Air
Lines, Inc., 568 F.2d 50, 54 (8th Cir. 1977) (“No arbitrary rules on the size of classes have been
established by the courts and the question of what constitutes impracticability depends upon the
facts of each case.”)
Rule 23(a)(2) next requires there to be “questions of law or fact common to the class.”
Rule 23(a)(2) does not require that every question of law or fact be common to every member of
the class. Paxton v. Union Nat. Bank, 688 F.2d 552, 561 (8th Cir. 1982). Commonality may be
satisfied “where the question of law linking the class members is substantially related to the
resolution of the litigation even though the individuals are not identically situated.” Id. (internal
quotations and citations omitted). The existence of even a single common question is sufficient
to establish commonality. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, —, 131 S. Ct. 2541,
2556 (2011). PPH and the Jane Does contend that, since this litigation focuses on the injury
caused to all class members by the state’s actions, questions of law are necessarily common. See

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U.S. Fid. and Guar. Co. v. Lord, 585 F.2d 860, 871 (8th Cir. 1978) (commonality requirement
met where there is a “basic legal and factual allegation in the Complaint which applies ‘across
the board’ to all members of plaintiffs’ class”).
PPH and the Jane Does argue that the Jane Does and the other proposed class members
raise the same question of law: whether defendant’s termination of PPH Medicaid provider
agreements violates the Medicaid free choice of provider requirement, which states that “any
individual eligible for medical assistance. . . may obtain such assistance from any institution,
agency, community pharmacy, or person, qualified to perform the service or services required. . .
who undertakes to provide him such services.” 42 U.S.C. § 1396a(a)(23). To this point, this
Court noted in the Preliminary Injunction Order that the question turns on “whether Arkansas
can terminate PPH as a qualified Medicaid provider for the reasons it articulates in this litigation
without violating the freedom of choice provision” (Dkt. No. 45, at 23 ̶ 24).
Plaintiffs have demonstrated that there is, in fact, a question of law common to the class.
The Court finds this requirement met.
Rule 23(a)(3) includes a “typicality provision [that] requires a demonstration that there
are other members of the class who have the same or similar grievances as the plaintiff.”
Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir. 1977). The typicality requirement
generally is satisfied “if the claims or defenses of the representatives and the members of the
class stem from a single event or are based on the same legal or remedial theory.’” Paxton, 688
F.2d at 561–62 (quoting C. Wright & A. Miller, Federal Practice and Procedure § 1764 at n.21.1
(Supp. 1982)). “The burden of showing typicality is not an onerous one.” Id. It requires
something more than general conclusory allegations, id., but it “is fairly easily met so long as
other class members have claims similar to the named plaintiff.” DeBoer v. Mellon Mortgage

8

Co., 64 F.3d 1171, 1174 (8th Cir. 1995). “When the claim arises out of the same legal or
remedial theory, the presence of factual variations is normally not sufficient to preclude class
action treatment.” Donaldson, 554 F.2d at 831.
ADHS argues that there are differences weighing against a finding of typicality,
including that “absent class members will have vastly different circumstances from each other
and from the Jane Does that will affect the irreparable harm analysis.” (Dkt. No. 71, at 16).
ADHS contends that these differences include, but are not limited to, whether a patient prefers
PPH to other Medicaid providers, whether a person has experienced or will experience longer
lines and more difficult scheduling at other Medicaid providers compared to PPH, and whether a
person has another Medicaid provider to which they have gone, can go, and will go. ADHS also
argues that these differences include whether a proposed class member is a Little Rock resident
(where the named Jane Does live and about which they have provided information) or a
Fayetteville resident (where the named Jane Does do not live and about which they have
provided no information) (Dkt. No. 71, at 16). ADHS further contends that typicality is absent
because the claim brought for injunctive relief requires resolution not just of the 42 U.S.C. §
1396a(a)(23) issue but also of the threat of irreparable harm. ADHS argues that, given what it
contends is an overly broad proposed class, the Court should conclude the differences concerning
irreparable harm cause a lack of typicality even where the legal 42 U.S.C. § 1396a(a)(23) issue is
similar to all (Dkt. No. 71, at 16 ̶ 17).
PPH and the Jane Does counter this argument by citing an Alabama district court case
with facts almost identical to the facts presented here. In that case, the Court found that,
“because the only attribute of Doe relevant to the court’s resolution of this claim is one that she
shares with all [patients] ̶ namely, that she is a Medicaid recipient who wishes to receive

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covered care from [Planned Parenthood] ̶ there is no possibility that additional evidence would
reveal that the injunction would be any less appropriately entered with respect to another
recipient not presently a party to the case.” See Planned Parenthood Southeast, Inc. v. Bentley,
Case No. 2:15-cv-620-MHT, 2015 WL 6517875, at *15 (M.D. Ala. Oct. 28, 2015). In addition,
there is Eighth Circuit precedent that “[f]actual variations in the individual claims will not
normally preclude class certification if the claim arises from the same event or course of conduct
as the class claims, and gives rise to the same legal or remedial theory.” See Alpern v. UtiliCorp
United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996) (citing Donaldson, 554 F.2d at 831).
The Court is satisfied that the typicality requirement is met here. ADHS’s termination of
PPH’s Medicaid provider agreements gives rise to identical claims for violation of the free
choice of provider right by the Jane Doe plaintiffs and PPH’s other existing and future Medicaid
patients.

Plaintiffs and other class members will rely on the exact same legal theory in

challenging ADHS’s actions.
As for ADHS’s argument that typicality is absent because the purported differences
concerning irreparable harm cause a lack of typicality even where the legal 42 U.S.C. §
1396a(a)(23) issue is similar to all, the Court rejects the argument. Throughout this litigation,
ADHS has cited the Court to various non-controlling authority from district courts in other
circuits in support of its contention that “it is also black letter law that irreparable harm may not
be presumed merely from a violation of a statute.” (Dkt. No. 71, at 15). In its analysis of
irreparable harm in the Preliminary Injunction Order, the Court discussed more than just the
alleged statutory harm (Dkt. No. 45). The Court concluded that the Jane Does, based on the
alleged threat of statutory harm and other irreparable harms identified, met their burden to merit
injunctive relief (Dkt. No. 45, 18 ̶ 22). On the record before the Court, the Janes Does have put

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into the record evidence that the other forms of harm they identified likely apply to all of the
proposed class members. In the Court’s Preliminary Injunction Order, the Court found that the
Arkansas Department of Health’s own documents reflect that long wait times and delays in
scheduling appointments are commonplace among county health clinics that offer family
planning services and other preventative care (Dkt. No. 45, ¶ 26; Dkt. Nos. 26-5, 26-6). The
Court finds the typicality requirement met on this record.
Lastly, Rule 23(a)(4) requires that “the representative parties will fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “The focus of Rule 23(a)(4) is
whether: (1) the class representatives have common interests with the members of the class, and
(2) whether the class representatives will vigorously prosecute the interests of the class through
qualified counsel.” Paxton, 688 F.2d at 562 ̶ 63.
The Jane Does argue that they have the same injuries, interests, and legal theories as the
class as a whole, demonstrating their ability to represent adequately the class interests. They
claim that their interests are not “antagonistic to the remainder of the class,” and, as can be seen
already in this case by their quickly responding to the written discovery propounded by ADHS,
they “vigorously pursue[]” their claims. DeBoer, 64 F.3d at 1175.
ADHS asserts that “[t]he inquiry into adequacy of representation, in particular, requires
the district court’s close scrutiny . . . .” Rattray v. Woodbury County, IA, 614 F.3d 831, 835 (8th
Cir. 2010) (citing Hansberry v. Lee, 311 U.S. 32, 41 (1940)). ADHS cites this Court to nonbinding precedent in support of its argument that “to assess the adequacy of the named
representatives, courts have looked to factors such as their honesty, conscientiousness, and other
affirmative personal qualities.” 7A C. Wright, A. Miller and M. Kane, Federal Practice and
Procedure, Civil 2d § 1766 at 308 ̶ 10.

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Based upon the cases from other circuits cited by ADHS in its filing in support of this
contention, ADHS asserts that the Jane Does are not conscientious because of certain mistakes
on the record that the Jane Does made and later corrected during the very short time frame they
were given to respond to the propounded questions. The Eighth Circuit has articulated no
specific requirement that courts assess conscientiousness when analyzing whether to certify a
class under Federal Rule of Civil Procedure 23. As such, the Court declines to do so. Even if
the Court were required to do so, the Court rejects the suggestion that any lack of
conscientiousness is demonstrated by the record before it or that any purported issues of honesty
or other affirmative personal qualities of the Jane Does dictate that class certification is
inappropriate here.
ADHS next argues that federal courts across the county require potential class
representatives to prove they are both willing and able to control and supervise class counsel and
to participate in the direction and strategy of the litigation.
The Court is unpersuaded by this attempt to expand the adequacy requirement beyond
what is required by the Eighth Circuit Court of Appeals — “whether:

(1) the class

representatives have common interests with the members of the class, and (2) whether the class
representatives will vigorously prosecute the interests of the class through qualified counsel.”
Paxton, 688 F.2d at 562 ̶ 63. As to the first prong, the Court finds that plaintiffs have common
interests with the members of the proposed class. As to the second prong, the Court finds that
plaintiffs have “demonstrated a willingness to prosecute the interests of the class through
qualified counsel.” Id. at 563. Even if the requirements are as ADHS suggests, this Court noted
in a prior Order in this case that “[t]he Jane Does, through the materials they have submitted,
have demonstrated they are in communication with counsel and interested in this litigation.”

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(Dkt. No. 66, at 2). The Jane Does have responded to ADHS’s written discovery “in detail and
on very short notice.” (Id.). In short, the Court finds even the requirements ADHS suggests
satisfied here.
ADHS also attempts to persuade the Court that, because the Jane Does were “recruited”
for this litigation and have “work schedules, life schedules, and other obligations,” that they are
somehow inadequate to serve as class representatives (Dkt. No. 71, at 9). How the Jane Does
came to be involved in this litigation is immaterial to their adequacy to serve as class
representatives. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 n.11 (1981); In re Primus, 436
U.S. 412, 422, 426 ̶ 31 (1978). In addition, that the Jane Does have busy work schedules and
other obligations does not lead this Court to conclude on the record before it that they “have not
been in control of this lawsuit, and they are not able and willing to meaningfully control or
supervise Planned Parenthood’s counsel,” as ADHS argues (Dkt. No. 71, at 11).
ADHS next attempts to refute the Jane Does’ claim of adequacy by contending that
attorney Jennifer Sandman, counsel for the Jane Does, is “Deputy Director of the Planned
Parenthood Federation of America.” (Dkt. No. 71, at 2, n.2). Again, the Court finds it difficult to
discern how this argument fits into the Eighth Circuit’s Paxton analysis, but the Court notes that,
according to the record before it, Ms. Sandman is Deputy Director of a department within
Planned Parenthood Federation of America (“PPFA”) called Public Policy Litigation and Law —
a department that conducts litigation throughout the country on behalf of Planned Parenthood
affiliates and their patients and, thus, has a traditional attorney-client relationship with PPH and
the Jane Does. Neither she nor the organization with whom she works has control over the
business decisions of PPH, PPFA, or any other Planned Parenthood entity (Dkt. No. 26-3, ¶ 6).
ADHS also argues that PPH has a financial stake in this litigation that could create a

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conflict. PPH and the Jane Does counter this by claiming that “PPH is a nonprofit organization
that brought this action (along with the Jane Does) to enjoin Defendant from excluding PPH
from the Medicaid program and to ensure that PPH can continue to ‘provid[e] basic and
preventive health care services and medications to the Arkansas women and men who depend on
[PPH] for these services.’” (Dkt. No. 3, at 5 ̶ 9, ¶¶ 3, 6, 15). The Jane Does are also represented
by Bettina E. Brownstein on behalf of the Arkansas Civil Liberties Union Foundation, the
Arkansas affiliate of the American Civil Liberties Union, a not-for-profit organization that has no
financial stake in the litigation. On the record before it, and considering all authorities cited, the
Court finds that Rule 23(a)(4)’s adequacy requirement has been met.
B.

Rule 23(b)

Having determined that the Jane Does meet Rule 23(a)’s requirements, the Court turns to
examine the requirements of Rule 23(b). PPH and the Jane Does move to certify the class under
Rule 23(b)(2), or, in the alternative, under Rule 23(b)(1)(B).

Rule 23(b)(2) applies if the

defendant has “acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2). The Jane Does argue that the United States Supreme Court
and the Eighth Circuit have recognized that class actions under Rule 23(b)(2) are particularly
appropriate in the context of civil-rights litigation. See Amchem, 521 U.S. at 614; see also Coley
v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980) (reversing denial of certification under 23(b)(2)
of a class of inmates confined at the state hospital claiming violation of their constitutional
rights); U.S. Fid. and Guar. Co., 585 F.2d at 875 (affirming certification under 23(b)(2) of a
class of female employees claiming sex discrimination). Indeed, “[b]ecause one purpose of Rule
23(b)(2) was to enable plaintiffs to bring lawsuits vindicating civil rights, the rule must be read

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liberally in the context of civil rights suits.” Coley, 635 F.2d at 1378 (internal quotation marks
and citation omitted).
PPH and the Jane Does also claim that certification under Rule 23(b)(2) is appropriate
here because the primary relief sought is declaratory or injunctive. See Avritt v. Reliastar Life
Ins. Co., 615 F.3d 1023, 1035 (8th Cir. 2010); In re St. Jude Med., Inc., 425 F.3d 1116, 1121 (8th
Cir. 2005). If the Rule 23(a) prerequisites have been met and injunctive or declaratory relief has
been requested, the action usually should be allowed to proceed under subdivision (b)(2).
DeBoer, 64 F.3d at 1175. In addition, class claims must be cohesive: “Injuries remedied
through (b)(2) actions are really group, as opposed to individual injuries.” In re St. Jude, 425
F.3d at 1122 (citation omitted); see also Paxton, 688 F.2d at 563 (district court erred in denying
certification under 23(b)(2) in “case seeking injunctive relief against class-wide race
discrimination in the bank’s promotion practices.”); Coley, 635 F.2d at 1378 (district court erred
in denying certification under 23(b)(2) where inmate class members presented common
questions of allegedly unlawful commitment procedures and conditions); U. S. Fid. and Guar.
Co., 585 F.2d at 875 (certification of class claiming sex discrimination proper under 23(b)(2)
where dispute turned on “acts of an employer on. . . grounds generally applicable to the class”)
(internal quotation marks and citation omitted).
PPH and the Jane Does state that, because their claims “turn[] on a single question that
uniformly applie[s] to all class members . . . ,” and “[r]esolution of that question as to one of the
plaintiffs necessarily resolve[s] the issue for the entire class,” Avritt, 615 F.3d at 1036
(discussing DeBoer, 64 F.3d 1171), and because class certification is sought to vindicate the
rights of PPH’s patients under the Medicaid Act through injunctive and declaratory relief, class
certification should be granted pursuant to Rule 23(b)(2). PPH and the Jane Does argue that

15

ADHS’s decision to terminate PPH from participation in the Medicaid program affects all class
members identically, in that, absent relief from this Court, they will no longer be able to obtain
family planning and other preventative healthcare services from their Medicaid provider of
choice. PPH and the Jane Does further argument that the relief sought – a declaratory judgment
preventing PPH’s termination from the Medicaid program and an injunction allowing it to
continue providing services to its existing and future Medicaid patients – is identical as to all
class members.
ADHS argues that, because of the scope of the proposed class, the Jane Does also cannot
meet the requirements of Rule 23(b)(2) (Dkt. No. 71, at 17, n.18). ADHS claims that injunctive
relief is “not appropriate to the whole class because the proposed class would include people
who – under anybody’s conception of the correct legal test – either definitely do not, or may not,
have irreparable harm.” (Id.). ADHS claims that the proposed class is too broad, imprecise, and
subjective to meet Rule 23(b)(2)’s requirements.
The Court finds that ADHS acted on grounds that generally apply to the class when it
terminated PPH from the Medicaid program, affecting all class members, and that injunctive
relief is appropriate as to the class as a whole if relief is to be granted. Finding that the
requirements of Rule 23(b)(2) are met, the Court does not reach plaintiffs’ arguments as to Rule
23(b)(1)(B).
C.

Scope of the Class

ADHS argues that, if the Court decides to certify a class, it should certify a “more
precise, ascertainable, and efficient class” (Dkt. No. 71, at 19). ADHS requests that the Court
limit the class to existing patients of PPH’s Little Rock facility because it claims those are
objectively the patients whose claims, including irreparable harm, are similar enough to the

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named Jane Does’ claims for class certification.

“The class definition must be drafted in such

a way to ensure that membership is ascertainable by some objective standard.”

Walls v.

Sagamore Ins. Co., 274 F.R.D. 243, 250 (W.D. Ark. 2011) (citing In re Teflon Products Liab.
Litig., 254 F.R.D. 354, 360 (S.D. Iowa 2008)). In ascertaining the class, the court “should not be
required to resort to speculation, or engage in lengthy, individualized inquiries.” Brown v.
Kerkhoff, 279 F.R.D. 479, 496 (S.D. Iowa 2012) (internal quotation marks and citation omitted).
Federal Rule of Civil Procedure 23(c)(1)(B) states that “an order that certifies a class action must
define the class and the class claims, issues, or defenses . . . .” Courts should make sure the class
definition is clear and that the membership of the class is ascertainable. See Riedel v. XTO
Energy, Inc., 257 F.R.D. 494, 506 (E.D. Ark. 2009); see also Brown, 279 F.R.D. at 496 (same).
ADHS argues that the proposed class definition is overbroad, imprecise, and subjective
(Dkt. No. 71, at 18). ADHS claims that it is unclear what the difference is between patients
“who seek to obtain . . . covered health services at PPH” and patients who “desire to obtain . . .
covered health services at PPH.” It also claims that, “to the extent that the proposed class
includes people who have never set foot in a PPH facility or can afford to pay for PPH services
even without the Medicaid program, it would cause significant typicality and efficiency
concerns.” (Dkt. No. 71, at 18). PPH and the Jane Does contend that the argument that some
class members will be able to pay for care out of pocket is misplaced because, by definition,
Medicaid recipients are needy individuals and families who cannot afford medical care on their
own and have therefore been determined by the state to be financially eligible for the program.
See Ark. Admin. Code R. 016.20.1-A-100; R. 016.20.1-E-100.
In response, PPH and the Jane Does contend that the proposed class is sufficiently precise
and ascertainable, and they contend that there exists an administratively feasible method for

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ascertaining the class (Dkt. No. 72, at 9). They claim that the proposed class definition is based
on objective, straightforward criteria: whether a Medicaid patient seeks or desires to seek
services from PPH. PPH and the Jane Does state that the distinction between patients who “seek
to obtain” and “desire to obtain” covered services from PPH is necessary at this time because the
injunction currently in place does not enjoin ADHS from suspending Medicaid payments to PPH
for services rendered to Medicaid beneficiaries other than the Jane Does. Thus, there may be
class members who desire to obtain Medicaid services from PPH but will not seek to obtain them
at this time. PPH and the Jane Does add that, should the class be certified and the preliminary
injunction extended, these two categories would merge to cover all current and future Medicaid
patients of PPH. PPH and the Jane Does further note that both ADHS and PPH keep records of
the patients who receive Medicaid-eligible services at PPH and that, therefore, there is an
administratively simple way to determine who the class members are both currently and as new
patients seek Medicaid services at PPH.
Ascertainability does not require that a plaintiff must be able to identify all class
members at the time of class certification; rather, a plaintiff need only show that class members
can be identified. See Riedel, 257 F.R.D. at 506 (quoting Manual for Complex Litigation §
21.222 (4th ed. 2004)). PPH and the Jane Does argue that fluidity of a class weighs in favor of
class certification. See Brown v. Plata, 131 S. Ct. 1910, 1926, 1940 (2011) (affirming class-wide
injunctive relief for classes of “seriously mentally ill persons in California prisons” and
California “state prisoners with serious medical conditions” and observing that “[r]elief targeted
only at present members of the plaintiff classes may . . . fail to adequately protect future class
members who will develop serious physical or mental illness”; injunctive relief should extend to
“[p]risoners who are not sick or mentally ill [and thus who] do not yet have a claim that they

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have been subjected to care that violates the Eighth Amendment . . . [because] [t]hey are that
system’s next potential victims”).
The Court finds that the class definition is drafted in a way such that class members are
ascertainable by objective criteria and declines to narrow the scope of the class.
D.

Certification As To All Claims

ADHS argues that, in PPH and the Jane Does’ motion for class certification, they only
suggest that the 42 U.S.C. § 1396a(a)(23) claim meets Rule 23(a)’s commonality and typicality
requirements. ADHS also states that inPPH and the Jane Does’ discussion of the reasons that
certification is proper under Rule 23(b)(2) or 23(b)(1)(b), they only discuss the Medicaid Act
claim. In response to ADHS’s claims that the Rule 23 requirements have not been met for PPH
and the Jane Does’ two constitutional claims in this case, plaintiffs argue that the class
certification analysis is the same for the statutory Medicaid Act claims and the constitutional
claims, in that, under either legal theory, the Jane Does and other members of the proposed class
are identically situated—“they are individuals who desire to receive family planning and other
preventive health services from PPH through the Medicaid program, and whose ability to do so
is jeopardized by DHS’s termination of PPH from the Medicaid program” (Dkt. No. 72, at 11).
The Court declines to limit class certification to the 42 U.S.C. § 1396a(a)(23) claim because the
injunctive relief that PPH and the Jane Does seek applies to all claims.
E.

Evidentiary Hearing On Class Certification

ADHS requested an evidentiary hearing on the matters of class certification, and the
Court denied that request. At the hearing conducted on this motion, ADHS orally renewed its
request for precertification discovery or an evidentiary hearing on class certification. The Court
again denies these requests.

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ADHS claims that precertification discovery or an evidentiary hearing will provide the
Court the best opportunity to determine whether or not the moving party has satisfied the
requirements of Rule 23 and, thus, will best protect absent potential class members. In support
of its argument, ADHS cites International Woodworkers of America AFL-CIO, CLC v. GeorgiaPacific Corp., 568 F.2d 64 (8th Cir. 1977), and claims that the Eighth Circuit reversed the
district court where the district court denied class certification and dismissed outright a putative
class action complaint, acting without holding a hearing or taking evidence on the Rule 23
factors. PPH and the Jane Does argue that the current record contains enough evidence to show
that the Jane Doe plaintiffs have met the standard for class certification.
The case on which ADHS relies quotes another Eighth Circuit case, Walker v. World Tire
Corporation, 563 F.2d 918 (8th Cir. 1977), for the proposition that “[t]he District Court must
have before it ‘sufficient material . . . to determine the nature of the allegations, and rule on
compliance with the Rule’s requirements . . . .’ Securing this material does not always require a
formal evidentiary hearing. . . . Where, however, the pleadings themselves do not conclusively
show whether the Rule 23 requirements are met, the parties must be afforded the opportunity to
discover and present documentary evidence on the issue.” Id. at 921. This Court concludes that
the record before the Court is sufficient for the Court to conclude that the Rule 23 requirements
examined by this Court have been met. The Court sees no reason to reconsider its prior rulings
on these issues.
III.

Conclusion

For the foregoing reasons, plaintiffs’ motion for class certification pursuant to Federal
Rule of Civil Procedure 23 is granted. Counsel for PPH and the Jane Does, Jennifer Sandman

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and Bettina Brownstein, are appointed as class counsel for this action. The Court directs the
parties to confer to submit a proposed class notice within 10 days of the date of this Order.
SO ORDERED this 25th day of January, 2016.

_______________________________
Kristine G. Baker
United States District Judge

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