The Supreme Court’s recent decision in Jennings v. Rodriguez raised the momentous question of whether the government can indefinitely detain people without a hearing. If the government has its way, the case also may close the courthouse doors to a wide array of class actions long used to challenge unlawful government action.
In Jennings, the Court, in an opinion by Justice Alito, ruled that the government did not have to offer detained immigrants bond hearings under the Immigration and Nationality Act. But the Court declined to address a related issue—whether denying bond hearings would violate due process. Instead, the Court sent the case back to the Ninth Circuit to address that question first. But the Court didn’t stop there. At the end of the majority opinion, the Court also invited the Ninth Circuit to consider whether plaintiffs could bring a class action at all for their due process claim.
In so doing, the Court asked whether individual differences between plaintiffs prevented courts from certifying class actions in due process cases, just as they did in Wal-Mart Stores, Inc. v. Dukes, a multi-billion dollar damage class action decided by the Supreme Court seven years ago. Taken too far, Jennings’ dicta would raise questions for constitutional cases that have been routinely certified as class actions since the civil rights era.
Unlike Wal-Mart, where millions of individual plaintiffs had money damage claims based on employment decisions made in hundreds of Wal-Mart stores, the Jennings class seeks to enjoin a single, uniform government policy. The plaintiffs in Jennings do not seek release from detention, a remedy that each class member can obtain only on his or her own. The class in Jennings challenges the Government’s blanket refusal to give any class member a bond hearing to make his or her case for release—a decision that affects all of the plaintiffs in the same way. Courts have long said that resolving the common issues in these kinds of cases, especially for people who often lack access to counsel, is far more important than letting minor differences between plaintiffs get in the way of a class action. As Justice Breyer, in dissent, observed: “Every member of each class seeks the same relief (a bail hearing), every member has been denied that relief, and the differences in situation among members of the class are not relevant to their entitlement to a bail hearing.”
We don’t want to make a mountain out of a molehill. It’s difficult to know how much to read into the Court’s discussion in Jennings of class actions that seek injunctive relief against the government. The parties never briefed the question, and the Court’s discussion of class actions was four paragraphs and not necessary to the outcome of the case. But, last month, the Ninth Circuit invited parties to brief the class action implications of the Supreme Court’s decision. And in a related case in the Sixth Circuit, the government already has seized on Jennings‘ dicta to urge the court to consider “whether class certification is proper in th[ese] case[s] at all.”
There are good reasons to permit class actions to challenge sweeping government policies that affect many people. A class action allows groups of people, who may not know their legal rights, to raise their concerns about systemwide government misconduct together, rather than individually retaining separate lawyers to challenge the same policy or practice repeatedly. Classwide findings also help courts identify the full impact of government procedures over an entire population, a determination that the Due Process Clause often requires. In the recent travel ban litigation, for example, some members of the Court questioned (in dissent) whether lower courts could craft injunctions that affect large groups of people without class procedures.
In fact, as we show below, the modern class action rules were written to address precisely the scenario where a government policy systematically denies a group of plaintiffs a meaningful opportunity to vindicate their rights. Moreover, this is completely consistent with cases like Wal-Mart, a decision that expressly endorsed civil rights class actions against the government. Finally, due process challenges, in particular, lend themselves to class certification, because they often raise generic questions about how system-wide hearing procedures impact a group of people who depend on the government for relief.
Class Action Rules Were Written to Promote Group Challenges to Unlawful Government Practices
The rule for injunctive relief class actions is found in Rule 23(b)(2) of the Federal Rules of Civil Procedure. It says that a class action is appropriate when “the party opposing the class has acted or refused to act on grounds that apply generally to the class.” As the Supreme Court has long recognized, civil rights cases are the “prime examples” of what Rule 23(b)(2) was designed to capture, and Rule 23 “builds on experience mainly, but not exclusively, in the civil rights field.”
Understanding the history of the modern class action rule and its relationship to unconstitutional governmental action highlights why injunctive relief class actions are important. The effort to revise Rule 23 coincided with efforts after Brown v. Board of Education to desegregate southern schools. By the early 1960s, some southern governments had abandoned crude, overt policies that simply required segregated schools. Instead, school boards gave children a default school assignment, but allowed them to petition to have that assignment changed. Whether a board would grant any particular child’s petition ostensibly depended on a host of individual, facially nondiscriminatory factors specific to each one.
As administered, however, these policies kept schools segregated. Boards made default assignments by race, then systematically deployed a set of practices – foot-dragging, pretextual denials, and the like – to reject individual petitions. When challenged in class actions, governments invoked these individualized remedial processes to argue that no two children’s claims to attend desegregated schools depended on common questions of law or fact.
At that time (before the modern class action rule), such arguments succeeded in derailing desegregation class actions, even as schools remained categorically segregated. According to the late Charles Alan Wright, one of the lead drafters of modern class action rule, the Committee members most responsible for the revised Rule 23 were “keenly interested” in these attempts to use individual procedures to defeat desegregation class actions. They were determined that courts certify classes in such cases. “It is absolutely essential to the progress of integration,” Clark wrote the committee reporter Benjamin Kaplan, “‘that such suits be treated as class actions . . . .’” Wright then sent Kaplan a letter that quoted extensively from Potts v. Flax, a case in which a school board attempted to defeat a class action on grounds that any particular student’s assignment to any particular school required an individualized process.
The Fifth Circuit rejected this argument because the claim of individualization was an illusion. “Properly construed,” the Fifth Circuit reasoned, “the purpose of the suit was not to achieve specific assignment of specific children to any specific . . . school.” Rather, the suit “was directed at the system-wide policy of racial segregation.” After receiving Wright’s letter quoting from Potts, Kaplan redrafted Rule 23(b)(2) and included Potts in the Advisory Committee’s note on the revised rule as an exemplar of the Rule 23(b)(2) class action. The Court’s opinion in Jennings, if taken too far, could take the courts back to where they were before the modern class action rule.
Wal-Mart Embraced Rule 23(b)(2)’s History and Design
The Supreme Court in Wal-Mart acknowledged the long, well-established use of Rule 23(b)(2) in injunctive relief cases against the government. Recounting the history of the class action rule, the Court wrote: “the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order.” It recognized that “civil rights cases against parties charged with unlawful, class-based discrimination are prime examples of what (b)(2) is meant to capture.”
The Supreme Court’s primary concern about Rule 23(b)(2) in Wal-Mart was employment discrimination cases where parties seek back pay along with injunctive relief. The Court declared that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class,” and not when class members seek “individualized relief” such as back pay. This holding is not relevant to purely injunctive classes against the government, nor was it intended to be. When parties pursue a “single injunction” – like an order requiring bond hearings for immigrants in prolonged detention – there is little question that a final ruling “provide[s] relief to each member of the class” consistent with Wal-Mart. In another part of the opinion, Wal-Mart required that the plaintiffs’ “claims must depend upon a common contention” such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
Many commentators thought that this ruling might negatively affect all types of civil rights cases. As time has passed, however, it has become clear that Wal-Mart has not fundamentally changed class certification in civil rights litigation. Since 2011 the federal courts of appeals have issued half a dozen published decisions upholding class certification in injunctive relief cases against government defendants. The appellate courts’ interpretation is consistent with the text of Rule 23 and Wal-Mart. Wal-Mart was influenced by the widely-respected work of the late Richard Nagareda, especially the idea that the class relief must apply “as to all.” Nagareda, who served as a reporter for the American Law Institute’s Principles of the Law of Aggregate Litigation, worried that the courts could not provide a common remedy to the millions of women who sought money damages based on decentralized employment decisions made in Wal-Mart stores around the country. However, in that same passage, Nagareda also referred readers to a portion of the ALI’s Principles, which explained why injunctive relief against the government often would “apply to all”:
[I]n litigation against governmental entities . . . the generally applicable nature of the policy or practice typically means that the defendant government will be in a position, as a practical matter, either to maintain or discontinue the dispute policy or practice as a whole, not to afford relief therefrom only to the named plaintiff.
Courts Have Long Used Class Actions to Resolve Due Process Challenges
Consistent with the text, history, and purpose of Rule 23(b), courts have long relied on class actions to resolve constitutional challenges against government agencies. Due process challenges lend themselves to class certification because they often raise generic questions about how uniform hearing procedures impact a group of people who depend on them for relief. As the Supreme Court has recognized since Mathews v. Eldridge: “[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.” Indeed, many landmark due process challenges to social security, immigration, education, and various state proceedings in the Supreme Court proceeded as class actions—ensuring the Court had a complete record to address the full scope of the legal issues alleged. Due process challenges permit courts to answer many petitioners’ claims “in one stroke,” just as Wal-Mart requires, precisely because they often raise policy questions about claimants, error rates, and government cost.
Long after Wal-Mart, courts rightly have continued to certify class actions for both liberal and conservative groups alleging the government violated procedural due process in cases ranging from prisoners’ rights and civil forfeiture laws to Medicaid recipients and veterans benefits. Indeed, even federal agencies tout the benefits of class actions because they allow the government to respond to allegations of group-wide harm more efficiently than piecemeal, individual adjudication. For example, in the 1970s, the Civil Service Commission adopted class action rules to adjudicate discrimination inside the federal government, after courts had determined that such claims against governmental programs could not be brought in the absence of a class action. The Equal Employment Opportunity Commission, which has succeeded the Civil Service Commission in resolving such disputes, deems the process to be “essential” in light of the volume of claims it processes each year, the potential for inefficient and inconsistent judgments, and the otherwise limited access to counsel.
Agencies themselves, consistent with due process, have long been able to resolve whole classes of issues to avoid “continually . . . relitigat[ing] issues that may be established fairly and efficiently in a single” proceeding. For that reason, the Administrative Conference of the United States—which provides guidance to all federal agencies—has recommended that agencies make greater use of class actions and declaratory orders in order to create “a pool of information about recurring problems,” achieve “greater equality in outcomes” in injunctive relief cases and provide “clarity and certainty.”
There’s no reason courts cannot continue to benefit from the same procedures so that they may perform their own constitutional role—ensuring the executive branch observes the law and serves the interests of those who depend on them for relief. The courts’ long reliance on class actions to resolve constitutional challenges to agency procedures is consistent with both the text and history of Rule 23. Courts should tread cautiously before upending procedural tools specifically created for judges to review unlawful government action.