Tag Archives: Commonality

United States Supreme Court Questions Whether A Rule 23(b)(2) Class Can Challenge the Failure to Provide Noncitizens Bail Hearings

View David Wright's Complete Bio at robinsonbradshaw.comThe United States Supreme Court, in a 5-3 decision authored by Justice Alito, reversed a Ninth Circuit case concluding that detained aliens have a statutory right to periodic bond hearings during the course of their extended detention.  See Jennings v. Rodriguez,  ____ U.S. ____, No. 15-1204 (U.S. Feb. 27, 2018).  The Court found that the Ninth Circuit’s statutory interpretation in favor of detained noncitizens was “implausible.”  In pedagogical fashion, Justice Alito explained that the Ninth Circuit had turned the doctrine of “constitutional avoidance” on its head:  “Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases.”  We don’t take sides, in this space, about the merits of this issue, but thought the Court’s observations about class certification were worth a mention.

The class certification rulings in Jennings have a storied history.  In June 2007, the named plaintiff filed a motion for class certification, which the district court denied in a two-sentence order.  Rodriguez appealed this order to the Ninth Circuit.  The appellate panel, noting the dearth of reasoning by the district judge, decided to “evaluate for [themselves] whether the class should be certified.”  The Ninth Circuit, without having the benefit of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), brushed aside the Rule 23(a) commonality challenge, focused on the utility of answering “comprehensively in a class setting” the constitutionality of class members’ detention, and proposed establishment of subclasses to deal with differing statutory schemes applicable to the class.  On remand, the district court certified a class under Rule 23(b)(2), and established four subclasses.  The Ninth Circuit, on interlocutory review of that ruling, sustained certification of three of the four subclasses.

In its opinion, the Supreme Court questioned whether the provisions of 8 U.S.C. § 1252(f)(1) precluded the lower courts from granting injunctive relief, citing the Supreme Court’s decision in Reno v. American–Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (Section 1252(f)(1) “prohibits federal courts from granting classwide injunctive relief” against the operation of §§ 1221-1232 of Title 8 of the U.S. Code).  Rule 23(b)(2) applies only when final injunctive relief or corresponding declaratory relief is appropriate for the class as a whole, as Justice Alito emphasized in his own italics. The majority also directed the Ninth Circuit to “consider whether a Rule 23(b)(2) class action continues to be the appropriate vehicle” in light of the Wal-Mart decision, noting that – in Wal-Mart – the Court held that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.”  Because the Ninth Circuit had already concluded that some of the class members “may not be entitled to bond hearings,” the Supreme Court observed that “it may no longer be true” that the complained-of “conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.”  The Court also expressed doubt as to whether due process claims could be resolved on a class-wide basis, given prior holdings that “due process is flexible” and “calls for such procedural protections as the particular situation demands.”

Justice Breyer, in dissent, took issue with the suggestion that Wal-Mart precluded class certification.  He observed that every class member was after the same thing, a bail hearing, “and the differences in situation among members of the class are not relevant to their entitlement to a bail hearing.”

The Ninth Circuit’s track record at the Supreme Court is well known.  And the import of the majority’s instructions regarding the appropriateness of class certification here is fairly plain, at least to us.  But whether and to what extent the lower courts will “take a hint” remains to be seen.

Seventh Circuit Weighs In on “White or No Underwear” Policy

View David Wright's Complete Bio at robinsonbradshaw.comOccasionally, we see something outside of the Carolinas that is quirky enough to merit a mention in this space.  Such is the Seventh Circuit’s recent decision in Mulvania v. Sheriff of Rock Island County, No. 16-1711 (7th Cir. Mar. 9, 2017).  According to Wikipedia, “In 2015 Rock Island (Illinois) was ranked the 32nd ‘Best Small City’ in the country.”  Not influencing those rankings, apparently, was the policy of the Rock Island County Jail, which “requires female detainees to wear either white underwear or no underwear at all.”  What, you ask, might be the “compelling government interest” that allegedly supports such a policy?  As the Seventh Circuit described, “[t]he Sheriff’s sole stated rationale for the underwear policy was to prevent detainees from extracting ink from colored underwear.”  This was a problem, in the Sheriff’s mind, because “detainees could use that ink to make tattoos.”   Despite the dearth of examples of such tattoo creation by detainees, the Sheriff testified that the policy was founded on such “security concern[s].”  This policy apparently has not been confined to Rock Island County; indeed, the defense argued that the white underwear policy was “within the correctional mainstream.”

The district court denied certification of the “underwear class” and granted summary judgment in favor of defendants.  On the merits, the Seventh Circuit reversed, holding that the record supported the inference that “the asserted security concern about tattoo ink from underwear is not genuine.”

The district court’s class certification decision was based on predominance and numerosity.  As to predominance, the court found that the “damages would vary for individual class members based on factors such as how long a detainee was deprived of her underwear, whether she was on her menstrual cycle or pregnant and other considerations.”  The absence of a “simple or formulaic method to calculate damages,” in the view of the lower court, precluded class certification.

The Seventh Circuit summarily reversed this determination, noting that “this reasoning was a mistake.”  According to the Court of Appeals, “it has long been recognized that the need for individual damages determinations at [a] later stage of the litigation does not itself justify the denial of certification.”

Alas, however, there were not enough underwear detainees to mount a class challenge.  After observing that “a forty-member class is often regarded as sufficient to meet the numerosity requirement,” the Seventh Circuit held that the class period only yielded 29 members–there was no basis upon which the plaintiffs’ amended complaint “related back” to the initial complaint, which might have supported a higher number.

It remains unclear, as of this post, whether Rock Island’s policy has been amended and whether this case will impact its ranking as the “Best Small City.”