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