Class Actions

(a) Prerequisites. One or more members of a class may sue as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Class Actions Maintainable. A class action may be maintained if RCFC 23(a) is satisfied and if: (1) [not used]; (2) the United States has acted or refused to act on grounds generally applicable to the class; and (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available fairly and efficiently methods controversy. The adjudicating the matters pertinent findings to include: (A) the class members’ interests these for controlling individually prosecution of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by class members; in the (C) [not used]; and (D) the likely difficulties in managing a class action. (c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses. (1) Certification Order. (A) Time to Issue. At an early practicable time after a person sues as a class representative, the court must determine by order whether to certify the action as a class action. (B) Defining the Class; Appointing that Class Counsel. An order certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under RCFC 23(g). (C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment. (2) Notice. (A) [Not used.] (B) For any class certified under RCFC 23(b)—or upon ordering notice under RCFC 23(e)(1) to a class proposed to be certified for purposes of settlement under RCFC 23(b)— the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice may be by one or more of the or following: United States mail, electronic means, other appropriate means. The notice must clearly and concisely state in plain, easily understood language: the nature of the action; (i) (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will include in the class any member who requests inclusion; (vi) the time and manner for requesting inclusion; (vii) the binding effect of a class judgment on members under RCFC 23(c)(3); and (viii) that the court may permit withdrawal from the class of a member who initially requested inclusion. (3) Judgment. Whether or not favorable to the class, the judgment in a class action must include and specify or describe those to whom the RCFC 23(c)(2) notice was directed, and whom the court finds to be class members. (4) Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues. (5) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this rule. (d) Conducting the Action. (1) In General. In conducting an action under this rule, the court may issue orders that: (A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument; (B) require—to protect class members and fairly conduct the action— giving appropriate notice to some or all class members of: (i) any step in the action; 33 RCFC 23 cont. (ii) the proposed extent of the judgment; or (iii) the members’ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action; (C) impose conditions on representative intervenors; parties or the on (D) require that the pleadings be amended to eliminate allegations about absent representation of persons and that the action proceed accordingly; or (E) deal with similar procedural matters. (2) Combining and Amending Orders. An order under RCFC 23(d)(1) may be altered or amended from time to time and may be combined with an order under RCFC 16. (e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class—or a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, or compromised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise: (1) Notice to the Class. (A) Information That Parties Must Provide to the Court. The parties must provide court with information sufficient to enable it to determine whether to give notice of the proposal to the class. the (B) Grounds for a Decision to Give Notice. The court must direct notice in a reasonable manner to all class members who would be bound by the proposal if giving notice is justified by the parties’ showing that the court will likely be able to: (i) approve the proposal under RCFC 23(e)(2); and (ii) certify the class for purposes of judgment on the proposal. (2) Approval of the Proposal. If the proposal would bind class members, the court may RCFC 23 cont. 34 approve it only after a hearing and only on finding that it is fair, reasonable, and adequate after considering whether: (A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; (ii) the of effectiveness any proposed method of distributing relief to the class, including the method of processing class- member claims; (iii) the terms of any proposed award including of attorney’s fees, timing of payment; and (iv) any agreement required to be identified under RCFC 23(e)(3); and (D) the proposal treats class members equitably relative to each other. (3) Identifying Agreements. The parties seeking approval must file a statement identifying any agreement made in connection with the proposal. (4) Opportunity to Withdraw. If the class action was previously certified under RCFC 23(b), the court may refuse to approve a settlement unless it affords an opportunity to request withdrawal to individual class members who had earlier elected to join the class. (5) Class-Member Objections. (A) In General. Any class member may object to the proposal if it requires court approval under this subdivision (e). The objection must state whether it applies only to the objector, to a specific subset of the class, or to the entire class, and also state with the specificity objection. the grounds for (B) Court Approval Required for Payment in Connection with an Objection. Unless approved by the court after a hearing, no payment or other consideration may be provided in connection with: (i) forgoing or withdrawing an objection, or (ii) forgoing, dismissing, or abandoning an appeal from a judgment the proposal. approving (C) Procedure for Approval After an Appeal. [Not used.] (f) Appeals. [Not used.] (g) Class Counsel. (1) Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court: (A) must consider: (i) the work counsel has done in identifying investigating or potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class; (B) may consider any other matter pertinent to counsel’s ability to fairly and the interests of the class; adequately represent (C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney’s fees and nontaxable costs; (D) may include in the appointing order provisions about the award of attorney’s fees or nontaxable costs under RCFC 23(h); and (E) may make further orders connection with the appointment. in (2) Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under RCFC 23(g)(1) and (4). If more than one adequate applicant the court must seeks appointment, to the applicant best able appoint represent the interests of the class. (3) Interim Counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action. (4) Duty of Class Counsel. Class counsel must fairly and adequately represent the interests of the class. (h) Attorney’s Fees and Nontaxable Costs. In a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement. The following procedures apply: (1) A claim for an award must be made by motion under RCFC 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner. (2) A class member, or party from whom payment is sought, may object to the motion. (3) The court may hold a hearing and must legal the facts and state find conclusions under RCFC 52(a). its (4) [Not used.] (As revised and reissued May 1, 2002; as amended July 1, 2004, Nov. 3, 2008, Jan. 11, 2010, July 2, 2018, July 1, 2019.) Rules Committee Notes 2002 Revision RCFC 23 has been completely rewritten. Although the court’s rule is modeled largely on the comparable FRCP, there are significant differences between the two rules. In the main, the court’s rule adopts the criteria for certifying and maintaining a class action as set forth in Quinault Allottee Ass’n v. United States, 197 Ct. Cl. 134, 453 F.2d 1272 (1972). Because the relief available in this court is generally confined to individual money claims against the United States, the situations justifying the use of a class action are correspondingly narrower than those addressed in FRCP 23. Thus, the court’s rule does not accommodate, inter alia, 35 RCFC 23 cont. factual situations through the declaratory and injunctive relief contemplated under FRCP 23(b)(1) and (b)(2). redressable Additionally, unlike the FRCP, the court’s rule contemplates only opt-in class certifications, not opt-out classes. The latter were viewed as inappropriate here because of the need for specificity in money judgments against the United States, and the fact that the court’s injunctive powers—the typical focus of an opt- out class—are more limited than those of a district court. Finally, the court’s rule does not contain a provision comparable to FRCP 23(f). That subdivision, which provides that a “court of appeals may in its discretion permit an appeal from an order . . . granting or denying class certification,” has its origin in 28 U.S.C. § 1292(e), which authorizes the Supreme Court to promulgate rules that provide for an appeal of an interlocutory decision other than those set out in Section 1292. Because no comparable statutory authority exists for this court’s promulgation of a similar rule, subdivision (f) has been omitted. It should be noted, however, that the Court of Federal Claims may certify questions to the Court of Appeals for the Federal Circuit pursuant to 28 U.S.C. §§ 1292(b), 1295. 2004 Amendment In addition to the rule changes introduced in 2002, the text of the current rule also incorporates the revisions to FRCP 23 effective December 1, 2003. These revisions, which appear as subdivisions (c), (e), (g), and (h) of the rule, adopt the text of the FRCP except where modification in wording was necessary to accommodate the “opt-in” character of this court’s class action practice. 2008 Amendment The language of RCFC 23 has been amended to conform to the general restyling of the FRCP. In addition, subdivision (h) (“Attorney’s Fees and Nontaxable Costs”) has been expanded to (i) recognize that an award of attorney’s fees may be authorized either by law (as was previously recognized in the rule) or “by the parties’ agreement”; and (ii) include the procedural protections accorded class members under FRCP RCFC 23.1 36 23(h)(1)–(3) with respect to claims for an award of attorney’s fees. 2010 Amendment RCFC 23(g)(1)(B) has been amended by substituting the word “adequately” for the word “accurately” to conform to the FRCP. 2018 Amendment RCFC 23(c)(2)(B) has been amended by adding item (viii) to allow withdrawal from the class of a member who initially requested inclusion. 2019 Amendment RCFC 23 has been amended in accordance with the corresponding changes to FRCP 23 that became effective December 1, 2018.