In thе ongoing pursuit to improve the quality of the Chicago Public Schools (CPS), the Chicago Board of Education (“Board”) has implemented various systems and processes to improve the quality of education for children. One process involves reconstituting schools that the Board deems to be deficient. Such a re
I.
The Illinois School Code provides that a school may be subject to turnaround if it has been on probation for at least one year and has failed to make adequate progress in correcting deficiencies. 105 ILCS 5/34-8.3(d)(4). Pursuant to the collective bargaining agreement between the Chicago Teachers Union and the Board, tenured teachers affected by reconstitution are placed in a reassigned teachers’ pool where they continue to receive a full salary and benefits for one school year. If a tenured teacher does not find a new position within that year, she is honorably terminated unless her time in the pool is extended. Probationary appointed teachers, other teachers, and para-professionals are not placed in the reassigned teachers’ pool but are eligible for the cadre pool where they can receive substitute assignments for which they are paid per assignment. Tenured teachers who are not reassigned within a year are also eligible for the cadre pool. Teachers in the cadre pool continue to receive health benefits for one year and receive a higher rate of payment than those in the ordinary substitute pool.
Between 2004 and 2011, the Board reconstituted sixteen CPS schools. In autumn 2011, the Board began considering which schools would be subject to a new round of reconstitution. Oliver Sicat, the head of CPS’ portfolio office, led the process, at the end of which the CPS CEO, Jean Claude Brizard, made final recommendations to the Board, all of which were accepted.
The CEO initially identified 226 schools that had been on probation for at least one year — the baseline eligibility for turnaround under Illinois law. 2 He then reduced the list to seventy-four schools by removing schools that met the objective criteria of a composite Illinois Standard Achievement Test (ISAT) score above the network average for elementary schools or a five-year graduation rate above network average for high schools.
Brizard was responsible for selecting the final ten schools for turnaround and presenting those selections to the Board for a vote. The district court described this process as “qualitative” and the Board asserted that the CEO used “subjective criteria.” According to Ryan Crosby, the Manager of School Performance at the relevant time, the decisions were not made on the basis of a written policy or on one
At a February 2012 Board briefing, the CEO recommended ten schools for turnaround — two. high schools and eight elementary schools. The briefing set forth the detailed rationale for selecting each school and included the factors listed above. Some schools received even more detailed attention. Casals, which was considered a “priority school” was slated for turnaround because it had an overall low performance, and student achievement was growing at a slower pace when compared with similar students at other schools, despite having received much assistance during its five years on probation. The briefing also set forth CPS’s response to community feedback it had received in opposition to the proposed turnaround at Casals.
The Board voted to authorize the reconstitution of all ten schools as recommended. On June 30, 2012, the Board terminated all' teachers and staff from those, ten schools. The ten schools were located exclusively on the south and west sides of Chicago where African Americans' make up 40.9% of tenured teachers. No schools were selected for turnaround on the north side, where only 6.5% of tenured teachers are African American. Of the tеnured teachers displaced because of reconstitution, 51% were African American, despite comprising just 27% of the overall teaching population within CPS. In hard numbers, 213 African-American employees were displaced.
School % African-American teachers
Smith 88.6
Woodson 85
Stagg 83.7
Fuller 81
Herzl 75.6
Chicago Vocational 75
Tilden 57.4
Piccolo 39.1
Marquette 26.7
Casals 26.7
Board’s brief, p. 13.
Plaintiffs Donald J. Garrett Jr., Robert Green, and Vivonell Brown, Jr., three African-American tenured teachers affected by the turnarounds, and the Chicago Teachers Union, Local No. 1, filed suit against the Board, alleging that the Board’s decision to reconstitute these ten schools was racially discriminatory. Plaintiffs sought to certify a class of:
All African American persons employed by the Board of Education of the City of Chicago as a teacher or para-professional staff, as defined in the labor agreement between the Chicago Teachers Union and the Board of Education, in any school or attendance center subjected to reconstitution, or “turnaround,” on or after the 2012 calendar year.
R. 63, p. 2 (ID# 817). 4
The proposed class consists of African-American staff in the following positions: 32 para-professionals, 11 probationary appointed teachers, 163 tenured teachers, and 7 teachers with no tenure status. As of the briefing for this appeal, half of the 32 para-professionals displaced by the 2012 turnarounds were currently active employees, 7 of the 11 probationary appointed teachers were current employees, and 122 of the 163 tenured teachers were currently active CPS teachers. Board’s brief, pp. 11-12. African-American teachers and para-professionals displaced in the 2012 turnarounds also include teachers who have retired, who are on leaves of absence, and those no longer employed by the Board.
The named plaintiffs sought class certification under Federal Rules of Procedure 23(b)(2), (b)(3) and/or (c)(4). The district court denied class certification on May 27, 2014. Although it found that the class met the requirements for numerosity, typicality, and adequacy of representation, the
II.
The purpose of class action litigation is to avoid repeated litigation of the same issue and to facilitate prosecution of claims that any one individual might not otherwise bring on her own. The district court’s task below was to determine if the plaintiffs-appellants presented a scenario in which judicial efficiency would be served by allowing their claims to proceed en masse through the medium of a class action rather than through individual litigation. Our analysis is not free-form, but rather has been carefully scripted by the Federal Rules of Civil Procedure. For this reason, the civil procedure rules on class actions are the best place to begin. Before we turn to those rules, however, we note that this case comes to us from a district cоurt order denying the certification of the class.
Chicago Teachers Union, Local 1 v. Bd. of Ed.,
No. 12 C 10311,
A.
Because a class action is an exception to the usual rule that only a named party before the court can have her claims adjudicated, the class representative must be part of the class and possess the same interest and suffer the same injury.
Wal-Mart Stores v. Dukes,
— U.S. -,
(1) the class is so numerous that joinder of all members is impracticable (numer-osity);
(2) there are questions of law or fact common to the class (commonality);
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and
(4) the representative parties will'fairly and adequately protect the interests of the class (adequacy of representation).
Fed.R.Civ.P. 23(a) (parentheticals ours).
In addition to meeting these requirements of Rule 23, a class action must meet the requirements of one of the four categories in Rule 23(b). Rule 23(b) sets forth
On appeal, the only remaining cоntested factor from Rule 23(a) is commonality — whether “there are questions of law or fact common to the class.” Fed. R.Civ.P. 23(a)(2). Although a court need only find a single common question of law or fact
(Wal-Mart,
What-matters to class certification ... is not the raising of common ‘questions’— even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.
Id. at 2551 (emphasis in original) (citing Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97,131-132 (2009)).
In Wal-Mart, a proposed class of all of the 1.5 million women who work or worked at the company alleged that the company discriminated against them on the basis of gender by denying them equal pay or promotions. The Supreme Court reversed the certification of the class, finding that the plaintiffs could not bear the burden of demonstrating commonality when the employment decisions complained of by the plaintiffs resulted from millions of individual decisions made by low-level decision-makers who had been given full discretion over such matters. “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Id. at 2552 (emphasis in original).
That “glue,” the Wal-Mart majority explained, could be something such as a biased employment testing procedure or a general policy of discrimination established by top managers, but the facts of the case provided neither. Id. at 2553. To the contrary, as the court noted, the only relevant corporate policy was one forbidding discrimination and a policy of delegating employment decisions to local managers. Id. at 2554.
The Board argues that the facts here align with those in
Wal-Mart
— that is that the decision to reconstitute the schools was not made pursuant to a central uniform policy or even by a single decision-maker, but rather was based on “subjective, qualitative factors that were not uniformly applied.” Board’s brief, p. 19. And indeed the district court found that the “turnaround policy, to the extent there was one, was not well-defined or uniformly applied,” and therefore, “Plaintiffs’ proposed class fail[ed] to meet the commonality requirement.” Order, p. 11. The district court concluded that if the turnaround decision had been made based solely on an objectively measurable criteria applied across the board, it could find a common issue,
Before we delve into the questions of whether first, the review was really case-by-case and second, whether subjective review dooms commonality, we should unpack the process through whiсh a school was selected for reconstitution. Recall that the process of identifying schools for reconstitution consisted of three steps. First, the CEO identified all of the schools eligible by state law for reconstitution due to poor past performance, that is, the school had been on probation due to low academic performance for at least one year. 105 ILCS 5/34 — 8.3(d). Then the CEO reduced that list of 226 schools to 74 schools by removing those that met the objective criteria of a composite ISAT score above the network average for elementary schools, or a five-year graduation rate above network average for high schools. The third step is the one that the district court focused on most: in this step the CEO and other high-level board members attended a series of meetings in which they discussed the types of information that the group would consider concerning schools eligible for reconstitution, and then analyzed that information.
The first question we ask, therefore, is if the latter subjective steps (assuming they are indeed subjective and individualized) destroy the alleged commonality created by the first clearly-objeetive steps. The Board and the district court’s reasoning assume that they do. But this cannot be so. Suppose hypothetically that after the objective first and second steps, all of the schools remaining on the list had 100% African-American teachers, and no schools with white teachers remained on the list. We could undoubtedly conclude that the objective factors had a disparate impact on African-American teachers. Suppose that the Board went on to evaluate those 74 schools with all African-American teachers in a subjective, case-by-case manner to narrow the list from 74 to 10 — all of which still were made up of African-American teachers. The introduction of subjective, case-by-case criteria would not alleviate the disparate impact of the initial objective criteria. Surely we would say that the plaintiffs could allege that there was sufficient commonality to establish a class. Every one of those teachers сould answer the question, “why was I disfavored?” by pointing to the initial objective criteria that impacted only African-American teachers. This is why the plaintiffs point to
Connecticut v. Teal
to argue that a discriminatory intermediate step taints the entire process.
Id.,
In
Teal,
the employer required those seeking a promotion to take a test.
Id.
at 443-44,
It is true that
Teal
was not a class certification case, but to the extent the Board asks us to ignore the impact of the objective steps of the test, it is directly on point, particularly because “class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.”
Comcast Corp. v. Behrend,
— U.S. -,
In short, if the plaintiffs allege that the objective criteria in the first two steps narrowed the pool in such a way as to have a disparate impact on African-American teachers (and indeed they do), then this is the glue that binds the claims together without regard to the later, subjective step. 5
But even if, when evaluating the propriety of class certification, we were to ignore these initial objective steps in deciding which schools would be reconstituted, we wоuld still have to conclude that the district court erred in applying the law of the Wal-Mart case to these facts. The Wal-Mart decision simply does not preclude class certification where subjective decision-making and discretion is alleged.
The district court, however, seemed to read
Wal-Mart
to say that certification of a class is not possible when the acts complained of are based on subjective discretionary factors made by multiple decision-makers. Our
post-Wal-Mart
decision in
McReynolds,
however, makes clear that this is not so.
McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
It turned out that team members tended to choose other team members who were most like themselves, and thus white brokers (who were the vast majority) seldom chose African-American colleagues for their teams. And without the help of the teams, African Americans did not generate as much revenue or attract and retain as many clients as white brokers, thus reducing their chances of winning account distribution competitions.
McReynolds,
Merrill Lynch, like Wal-Mart, delegated discretion over decisions that influence
In contrast, just a few months later in
Bolden v. Walsh Constr. Co.,
we reversed a grant of class certification where the facts fell on the other side of the line— reflecting discretionary decisions more in line with the
Wal-Mart
decision rather than
McReynolds. Id.
Thus the Supreme Court’s Wal-Mart decision and ours in McReynolds and Bolden together demonstrate that a company-wide practice is appropriate for class challenge even where some decisions in the chain of acts challenged as discriminatory can be exercised by local managers with discretion — at least where the class at issue is affected in a common manner, such as where there is a uniform policy or process applied to all. The Fourth Circuit (relying heavily on this Circuit’s interpretation of Wal-Mart) summed it up well by noting that
Wal-Mart did not set out a per se rule against class certification where subjective decisiоn-making or discretion is alleged. Rather, where subjective discretion is involved, Wal-Mart directs courts to examine whether all managers exercise discretion in a common way with some common direction. Thus, to satisfy commonality, a plaintiff must demonstrate that the exercise of discretion is tied to a specific employment practice, and that the subjective practice at issue affected the class in a uniform manner.
Scott v. Family Dollar Stores, Inc.,
In short, subjective, discretionary decisions can be the source of a common claim if they are, for example, the outcome of employment practices or policies controlled by higher-level directors, if all decision-makers exercise discretion in a common way because of a company policy or practice, or if all decision-makers act together as one unit.
The Board maintains that no single criteria was used in the third step to narrow the field of seventy-four schools to ten, but this is not an entirely accurate description. More precisely, one could say that each of the twenty-six schools chosen for reconstitution was chosen after being considered individually. This does not mean that a different selection criteria was used. For example, suppose a company has decided to reduce its workforce by cutting the lowest performing 25% of workers. To evaluate performance, it looks to sales, evaluations, work ethic, and peer reviews. The CEO terminates one worker because her sales numbers are low, another because her evaluations from her supervisor are sub-par, and yet another because of high absenteeism. Although it is true that each employee was terminated for different reasons, it is not true that a different set of criteria were used for each. In fact, the employer implicitly considered each factor for each employee, even if оnly some of the performance criteria ultimately determined the employee’s fate.
In this case, the Board tells us that after the objective, numerical calculations in steps one and two, it considered a number of factors. Those factors were discussed in a series of meetings that included a small group of key people with information about the various factors considered. The group included the Board Chief Academic Officer, the Chief Portfolio Officer, Network Chiefs, and representatives from Board departments in charge of transportation, facilities, safety, and special education.
In its brief, the Board describes the numerous factors considered in the various schools, but they could be boiled down to the following broader categories: academic performance, performance trends, leadership, whether the school was over or under utilized, proximity to and effect on other schools, school culture, facilities, safety, parent and community input, and input from CPS staff.
See
Board’s brief, pp. 5-11. We know that this small grоup of decision-makers, even during the third and subjective stage of decision-making, used these same criteria to assess each school because they told us so again and again.
See, e.g., Id.
at p. 4 (“Selecting the schools for turnaround in 2012 involved a lengthy recommendation process that considered the academic performance of schools that were eligible for turnaround, whether those schools’ performance improved over time, and whether measures that had been implanted in the school were working.”);
Id.
at p. 6 (“selecting the schools that would be reconstituted from those 74 schools was a qualitative process guided by subjective criteria that various stakeholders were asked to consider. For example, ... transportation, facilities, safety and special education ... planned school actions such as closures and phase-outs.”);
Id.
at p. 7 (“These discussions included not only the academic performance of schools ... but also issues such as leadership and the culture of a school, gang boundaries, overall performance, the condition and utilization of facilities and the observable teaching in a particular building.”);
Id.
at p. 8 (committee considered improvement while on probation and school culture);
Id.
at p. 9 (“The briefing noted that the selection process considered information involv
The Board goes on to state that there was a “specific, unique rationale for each turnaround decision” (Board’s brief, p. 10), but the examples they offer come from the same set of criteria that they identified as applicable to all schools. We can boil these criteria down to the following ten categories: (1) academic performance, (2) performance trends, (3) leadership, (4) whether the school was over or under utilized, (5) proximity to and effect on other schools, (6) school culture, (7) facilities, (8) safety,- (9) parent and community input, and (10) input from CPS staff. For example, the Board states that Fuller and Woodson were selected to provide support for a nearby school that was closing— criteria # 5 on our list. At Smith, the local school council had asked fоr better options — criteria # 9 on our list. The Board chose Casals because of its culture of complacency and poor quality instruction — criteria # 6 and # 3. We could continue through each school, but need not. It is clear that the Board applied the same set of criteria to all of the schools evaluated for reconstitution.
In this way, the scenario in this case is worlds away from that in
Wal-Mart
where a court could have no way of knowing why each of the thousands of individual managers made distinct decisions regarding promotions and pay in millions of employment decisions. Likewise, in
Jamie S.
the task of identifying disabled students who might need educational services fell to countless school district employees making highly individualized decisions about the need for services in individual students.
Jamie S.
Decisions by myriad low-level managers are different than decisions made by a single lead decision-maker or a few concentrated top-level managers as
lower-level employees do not set policies for the entire company; whereas, when high-level personnel exercise discretion, resulting decisions affect a much larger group, and depending on their rank in the corporate hierarchy, all the employees in the company. Consequently, discretionary authority exercised by high-level corрorate decision-makers, which is applicable to a broad segment of the corporation’s employees, is more likely to satisfy the commonality requirement than the discretion exercised by low-level managers in Wal-Mart.
Scott,
The plaintiffs have demonstrated commonality by asserting that a uniform employment practice (the set of criteria used to evaluate the school) used by the same decision-making body to evaluate schools was discriminatory.
Wal-Mart,
And in fact, the district court noted the same thing, when it said that “if a general policy that is enforced at the corporate level rather than by individual supervisors is claimed to be discriminatory, even if some discretion exists, commonality may be found.” Order, p. 9
(citing McRey-nolds,
The district court erred, therefore, when it stated that “[t]he Court could not resolve whether the Board’s turnaround policy was discriminatory as applied to all class members ‘in one stroke,’ for it would have to examine the rationale behind the decision to turn around each of the ten schools and compare those reasons to the decisions not to pursue the remaining sixty-three.” Order, p. 11. This is not so. The court need only resolve whether the “same conduct or practice by the same defendant gives rise to the same kind of claims from all of the class members.”
Suchanek,
Having concluded that the plaintiffs demonstrated sufficient commonality to fulfill the threshold requirements for a class action elucidated in Federal Rule 23(a), we now turn to the plaintiffs request for certification under Federal Rule 23(b)(2). Rule 23(b)(2) permits class certification if “the party opposing the class has acted or refuses 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);
Lewis v. City of Chicago,
In this case, the plaintiffs sought a declaratory judgment that the Board’s turnaround policies violated Title VII, 42 U.S.C. §§ 1981, 1983, and prospective in-junctive relief including a moratorium on turnarounds and the appointment of a monitor to evaluate and oversee any new turnaround process. R 63-1, p. 21 (ID# 841). The 23(b)(2) class does not seek any money or individual relief. 7
The district court held that a 23(b)(2) class could not be certified because “[although Plaintiffs’ request for a declaration that the turnaround policy violates federal law would apply class-wide, it would merely be a prelude to further relief, which would be inherently individualized.” Order, p. 16. The order pointed out that no single injunction could provide relief without establishing a system for providing individualized relief to each class member “either placing class members in specific jobs based on their qualifications and openings or providing them with back pay and front pay if no position was available.” Id. at 17.
The district court erred, however, by misunderstanding the nature of the relief sought. The proposed 23(b)(2) class did not seek individual relief such as reinstatement or individually calculated damages in the form of back pay and front pay.
8
It asked only that the court issue a declaration that the Board’s turnaround practice violated Title VII and 42 U.S.C. §§ 1981 & 1983, and for prospective injunctive relief including a • moratorium on turnarounds and the appointment of a monitor to evaluate and oversee any new turnaround process. We agree with the district court
The Board replicated the district court’s error in its briefing before this court, spending several paragraphs describing the complexities required for providing individualized relief.
See
Board’s brief, pp. 26-27 (describing the difficulties in reinstating teachers with various experience, certifications, and damages). But this is all frolic and detour. An order enjoining the board from reconstituting schools would provide the exact relief that the 23(b)(2) class requests. A moratorium would prevent a recurrent violation
(see Milwaukee Police Ass’n v. Jones,
Moreover, the fact that the plaintiffs might require individualized relief does not preclude certification of a class for common equitable relief.
Pella Corp. v. Saltzman,
In
McReynolds,
for example, when the court certified a 23(b)(2) сlass of African-American financial advisors, it did so because it concluded that it would be more efficient to evaluate the plaintiffs’ claims regarding the disparate impact of the policies on a class-wide basis rather than in 700 individual lawsuits.
McReynolds,
For this reason, the
Kartman v. State Farm Mut. Auto. Ins. Co.,
Indeed, this case follows the exact contours of the Wal-Mart decision which con-scribed the boundaries of 23(b)(2) as follows:
Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.
Wal-Mart,
C.
As we just described, a 23(b)(2) class cannot seek money damages unless the monetary relief is incidental to the injunctive or declaratory relief.
Wal-Mart,
To some extent the question of commonality that we dissected at length above, and the question of predominance overlap:
To gain class-action certification under Rule 23(b)(3), the named plaintiff must demonstrate, and the District Court must find, that the questions of law or fact common to class members predominate over any questions affecting only individual members. This predominance requirement is meant to test whether proposed classes are sufficiently cohesive to warrant adjudication by representation, but it scarcely demands commonality as to all questions. In particular, when adjudication of questions of liability common to the class will achieve economies of time and expense, the predominance standard is generally satisfied even if damages are not provable in the aggregate.
Comcast Corp. v. Behrend,
— U.S. -,
Common issues of fact and law predominate in particular when adjudication of questions of liability common to the class will achieve economies of time and expense.
See Comcast Corp.,
This is a good time to issue the reminder that “Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class.”
Id.,
— U.S. -,
If the selection process is determined to be discriminatory, individualized remedies and damages may have to be determined for each plaintiff or perhaps for subclasses of plaintiffs, such as tenured teachers, non-tenured teachers and the like. But as we noted above, this does not prevent certification of the class. As the district court correctly noted “the fact that damages may be individualized in this case would not preclude certification.” Order, p. 18,
citing Butler v. Sears Roebuck & Co.,
Given these considerations, the plaintiffs have met the requirements fоr certification
D.
Finally, Rule 23(c)(4) permits the court to certify particular issues for resolution as a class action. Because we conclude that the class can be certified under both Rule 23(b)(2) and 23(b)(3), we have no need to consider whether the district court should have considered certification of one particular issue. Nor must we consider the Board’s argument that plaintiffs Garrett, Green, and the Chicago Teacher’s Union are not appropriate class representatives, as the Board failed to appeal from the district court’s finding of adequacy of representation.
For the foregoing reasons, the district court order is reversed and remanded for further consideration consistent with this oрinion.
Notes
. District-run schools in CPS are organized into 19 geographic networks, which provide administrative support, strategic direction, and leadership development to the schools within each Network. Each network is headed by a Chief of Schools, also called a Network Chief.
. The district court referred to 226 schools eligible for turnaround in 2012. On appeal, the Board clarified that there were 226 schools rated at the lowest academic level, level three, and thus eligible for turnaround in 2012. There were also, however, an additional twenty-four schools rated at academic level two that had been on probation for a year or more and thus also were eligible for turnaround under Illinois law. The Board eliminated all but one of these level two schools from consideration for turnaround. We will continue to use the number 226 for simplicity.
. In 2008, the school district began measuring the freshman on-track rate, a measurement developed by the University of Chicago. The measurement looks at course grades and credits in the first year of high school and students are considered on-track at the end of their freshman year if they accumulated at least five course credits and failed no more than one semester course in a core subject during the school year. http://cps.edu/News/ Press_releases/Pages/PRl_08_27_2014.aspx
. To avoid confusion, our references are to the district court docket cites with both individual record page numbers, and for ease of location, a page identification number (ID#) from the continuously paginated district court record.
. The defendants also claim that the plaintiffs waived this argument by failing to raise it below. We conclude that the argument was not waived, but rather a relevant response to the district court’s conclusion that the subjective criteria in the latter steps of the process defeated commonality. Once the district court separated the steps and determined that the subjective one doomed class certification, the plaintiffs were entitled to direct the court’s attention back to the objective aspects of the process, and demоnstrate how a discriminatory step in a chain of events can affect the ultimate outcome.
. The Board voted to approve all recommendations for reconstitution.
. There is some confusing language in the plaintiffs’ initial brief requesting class certification in the district court in which, after asking for declaratory and injunctive relief only, the plaintiffs make an offhanded and unexplained comment that "the assessment of backpay for these individuals is 'generally applicable to the class.’ ” R. 63-1, p. 18 (ID# 842). The plaintiffs' reply brief in the district court, however, makes clear that its 23(b)(2) class seeks declaratory and injunctive relief and that "[a]ny additional relief to the (b)(2) class will be incidental to, and flow from, the declaratory relief sought. Calculating this relief will be ‘mechanical, formulaic' — and thus appropriate for a 23(b)(2) class,” R. 83, pp. 19-21 (ID# 1780-1782), citing
Johnson v. Meriter Health Servs. Emp. Ret. Plan,
. To the extent that any monetary relief is "incidental to the injunctive or declaratory relief” it could be included in a Rule 23(b)(2) class, if "it appear[s] that the calculation of monetary relief will be mechanical, formulaic, a task not for a trier of fact but for a computer program.”
Johnson,