by David M. Reutter
The U.S. Court of Appeals for the Seventh Circuit on November 14, 2022, reversed the decertification of a class in a lawsuit alleging that Division 10 of the Cook County Jail does not comply with the Americans with Disabilities Act, 42 U.S.C. ch.126 § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq.
Preston Bennett filed his lawsuit in the U.S. District Court for the Northern District of Illinois in 2018, alleging Division 10 lacks the grab bars and other fixtures that disabled persons may need in order to use showers and toilets safely. When seeking class certification, Bennett tried to simplify the case by relying on the Uniform Federal Accessibility Standards (UFAS), 28 C.F.R. § 42.522(b)(1), which mandated that new construction or alteration of buildings requires accessible toilets to have grab bars nearby and accessible showers to have mounted seats. As Division 10 was built in 1992, Bennett insisted it must comply with the UFAS.
The district court declined to certify a class, ruling it would entail a premature adjudication on the merits. But the Seventh Circuit reversed, saying the “class may lose as well as win,” so all certification could do would be “tee up the merits for decision.” [See: PLN, Sep. 2020, p.17.]
On remand, the district court certified a class. While the question the lawsuit presents appears straightforward, the case languished in the district court. Then, in September 2022, the district court decertified the class. The principal reason for Judge John Robert Blakely’s decision was “that some class members, although using aids such as wheelchairs, may not be disabled within the meaning of federal statutes – either because they are malingering or because they can get around without assistance for short distances,” the Seventh Circuit recalled. Those differences among class members, Judge Blakely said, would make the case too complex.
When the Class sought an interlocutory appeal, the Seventh Circuit disagreed with the district court once again. Unmentioned by the lower court in its order, the Court said, was that Fed.R.Civ.P 23(c)(4) provides: “When appropriate, an action may be brought or maintained as a class action with respect to particular issues.” The Court added that “our decision in 2020 identified such an issue, one relevant to every detainee in Division 10.”
A class action resolves the issue, but not the whole case. If the class prevails on the issue, it would receive the benefit of a declaratory judgment on the issue but would need to proceed in individual suits to seek damages. By contrast, if the class losses, every detainee would be banned through the doctrine of issue preclusion.
The Court did not see, and the district court did not explain, why the application of UFAS cannot be determined class-wide while leaving any particular detainee’s claim or other relief to the future. “This case is more than four years old,” the Seventh Circuit stated in granting leave to appeal and reversing the class decertification order. “It should be resolved with dispatch on remand.” Plaintiff was represented by attorney Patrick W. Morrissey of Thomas G. Morrissey, LTD in Chicago. See: Bennett v. Dart, 53 F.4th 419 (7th Cir. 2022).
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