Vallario v. Vandehey

• Decision Date: 04 February 2009
• Docket Number: No. 08-502.,08-502.
• Citation: 554 F.3d 1259
• Parties: Lou VALLARIO, Sheriff of Garfield County, Colorado, in his official capacity; Scott Dawson, a Commander in the Garfield County Sheriff's Department, in his official capacity, Petitioners, v. Clarence VANDEHEY; William Langley; Samuel Lincoln; Jared Hogue, on behalf of themselves and all others similarly situated, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

554 F.3d 1259

Lou VALLARIO, Sheriff of Garfield County, Colorado, in his official capacity; Scott Dawson, a Commander in the Garfield County Sheriff's Department, in his official capacity, Petitioners, v. Clarence VANDEHEY; William Langley; Samuel Lincoln; Jared Hogue, on behalf of themselves and all others similarly situated, Respondents.

No. 08-502.

United States Court of Appeals, Tenth Circuit.

February 4, 2009.

Josh A. Marks (Melanie B. Lewis and Kim A. Tomey with him on the briefs), Berg Hill Greenleaf & Ruscitti LLP, Boulder, CO, for Petitioners.

Mark Silverstein (Taylor S. Pendergrass, American Civil Liberties Union Foundation of Colorado, J. Gregory Whitehair, Taggart Hansen, and Marisa B. Hudson-Arney, Gibson Dunn & Crutcher LLP, with him on the briefs), American Civil Liberties Union of Colorado, Denver, CO, for Respondents.

Before KELLY, BALDOCK, and O'BRIEN, Circuit Judges.

BALDOCK, Circuit Judge.

The Eighth Amendment, as incorporated against the states through the Fourteenth Amendment, precludes state prison officials from "knowingly and unreasonably disregarding an objectively intolerable risk of harm" to inmate health or safety. See Farmer v. Brennan, 511 U.S. 825, 846, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Respondents, four prior inmates, contend they were exposed to, among other things, such an unconstitutional risk of harm at the Garfield County Jail.¹ Accordingly, Respondents brought an official capacity suit for equitable relief against Petitioners Lou Vallario, the Sheriff of Garfield County, and Scott Dawson, the commander charged with administering jail operations.

Respondents recite a number of jail customs and policies, or the lack thereof, that contribute to the alleged violation of inmates' constitutional rights. Only five are relevant to this appeal. First, Respondents challenge the authorized use of compliance devices; including (1) restraint chairs, (2) pepperball guns, (3) tasers, and (4) pepper spray; in a manner that allegedly poses an unjustifiable risk of serious harm to inmates. Second, Respondents contest a jail policy requiring inmates to wear an electroshock belt to court.² Third, Respondents claim deputies' authorized use of restraint chairs contravenes inmates' "liberty interest in freedom from bodily restraint without due process of law" and places inmates at an unjustifiable risk of serious harm. Fourth, Respondents allege Petitioners' policies unconstitutionally deny indigent inmates access to psychiatric care. Fifth, Respondents contend Petitioners routinely place inmates on supermax status without due process of law. To remedy these inequities, Respondents requested the district court provide them with such "declaratory and injunctive relief ... as the Court deems just."

Faced with the prospective mooting of their claims by their imminent release, see Green v. Branson, 108 F.3d 1296, 1300 (10th Cir.1997), Respondents requested the district court certify their case as a class action. See Fed.R.Civ.P. 23. The district court obliged as to all of the foregoing claims, certifying a class composed of "[a]ll persons who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff's Department." Petitioners now seek our permission to file an interlocutory appeal of the district court's class certification ruling. We have jurisdiction under 28 U.S.C. § 1292(e) and Federal Rule of Civil Procedure 23(f). After careful consideration, we grant the petition for review and remand for further proceedings not inconsistent with this opinion.

I.

Federal Rule of Civil Procedure 23(f) provides that a "court of appeals may permit an appeal from an order granting or denying class-action certification ... if a petition for permission to appeal is filed with the circuit clerk within 10 days after the order is entered." Our circuit has not yet addressed the standard it will use in determining whether to grant such a petition. Accordingly, we proceed to consider this question as a matter of first impression.

Some historical context is in order. No appeal as of right exists from a district court's class certification order unless that order dismisses the action or renders a decision on the merits. See 7B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1802 (3d ed. 2005) (Federal Practice and Procedure); see also 5 James William Moore et al., Moore's Federal Practice § 23.88[1] (3d ed.2008) (noting that a district court's "certification decision is not immediately appealable as a matter of right"). Despite courts' best efforts to discover more immediate avenues for appellate review of class certification decisions, see 7B Federal Practice and Procedure § 1802, the traditional rule that a party must raise all claimed errors "in a single appeal following" a "final judgment on the merits" generally prevailed. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981); 7B Federal Practice and Procedure § 1802 (noting that prior to 1998 "an appeal of a class-certification determination typically was available only from a determination that disposed of the action").

In 1998, the Supreme Court significantly altered the legal landscape by adopting Federal Rule of Civil Procedure 23(f), which grants appellate courts the discretionary power to permit interlocutory appeals of class certification orders. See Fed. R.App. P. 5 (laying out the procedural requirements for such permissive appeals). In so doing, the Court opened up the restrictive review practices that historically applied to class certification decisions. See Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 145 (4th Cir.2001). Appellate courts' discretion, under Rule 23(f), is "unfettered" and "akin to the discretion exercised by the Supreme Court in acting on a petition for certiorari."³ Fed. R.Civ.P. 23(f) advisory committee's note. Courts of appeals may, therefore, grant or deny permission to appeal a class certification order based on "any consideration" they "find[ ] persuasive." Id.

That said, courts of appeals have remained ever mindful that interlocutory appeals are traditionally disfavored and for good reason. See, e.g., Carpenter v. Boeing Co., 456 F.3d 1183, 1189 (10th Cir. 2006); Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir.2005); In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C.Cir.2002). Such appeals are necessarily "disruptive, time-consuming, and expensive" for the parties and the courts. Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 294 (1st Cir.2000); see also In re Lorazepam, 289 F.3d at 105. In the class action context, interlocutory appeals may also serve, quite wrongfully, to discourage district courts from reconsidering their class certification orders under Federal Rule of Civil Procedure 23(c)(1)(C). See Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1273 (11th Cir.2000); see also id. (recognizing that class certification determinations are "fluid and fact-sensitive").

As a result, we join our sister circuits in recognizing that the grant of a petition for interlocutory review constitutes "the exception rather than the rule." Chamberlan, 402 F.3d at 959; see also Prado-Steiman, 221 F.3d at 1273; Mowbray, 208 F.3d at 294. We will exercise "restraint" in accepting Rule 23(f) petitions and will not accept such petitions "as a matter of course." Prado-Steiman, 221 F.3d at 1277; see also In re Lorazepam, 289 F.3d at 105 (noting that "it is understood, if not presumed, that appellate courts will act with cognizance" of the concerns associated with interlocutory appeals). Parties are still generally required to raise all claims of error, in a single proceeding, after the district court renders a final judgment. See Chamberlan, 402 F.3d at 959; In re Lorazepam, 289 F.3d at 104-05. This rule recognizes "the limited capacity of appellate courts to consider interlocutory appeals, as well as the institutional advantage possessed by district courts in managing the course" of class litigation. Lienhart, 255 F.3d at 145.

Certain instances exist, however, in which interlocutory review of a district court's class certification decision is appropriate. See Carpenter, 456 F.3d at 1189 (noting that sometimes "countervailing considerations predominate"). Indeed, the Supreme Court enacted Rule 23(f) specifically to permit such appeals, pursuant to an "express grant of authority by Congress to create appellate jurisdiction over non-final judgments." Lienhart, 255 F.3d at 145; see also 28 U.S.C. § 1292(e). True to the broad grant of authority Rule 23(f) provides the courts of appeals in this matter, no rigid test should govern the exercise of our discretion to grant a petition for interlocutory review. See Chamberlan, 402 F.3d at 960; Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 165 (3d Cir.2001); Prado-Steiman, 221 F.3d at 1276. We, therefore, simply set forth a set of principles that may prove useful in evaluating the merits of a Rule 23(f) petition.⁴

Interlocutory review of a district court's class certification order is generally appropriate in three types of cases. The first such category is comprised of "death knell cases," which refers to situations in which a questionable class certification order is likely to force either a plaintiff or a defendant to resolve the case based on considerations independent of the merits. See Chamberlan, 402 F.3d at 959; In re Lorazepam, 289 F.3d at 105; see also Fed. R.Civ.P. 23(f) advisory committee's note. For example, where the high costs of litigation grossly exceed an individual plaintiff's potential damages, the denial of class certification sounds the death knell of that plaintiff's claims. See Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834 (7th Cir.1999). In the same vein, if class certification is granted, a defendant's potential liability may be so enormous that settlement "becomes the only...