Gayle v. Warden Monmouth County Correctional Institution

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 15-1785
_______________
GARFIELD GAYLE; NEVILLE SUKHU;
SHELDON FRANCOIS,
Appellants
v.
WARDEN MONMOUTH COUNTY CORRECTIONAL
INSTITUTION; SCOTT A. WEBER, in his official capacity
as Newark Field Office Director for Detention and Removal;
*SARAH R. SALDANA, in her official capacity
as Assistant Secretary of U.S. Immigration and Customs
Enforcement; SECRETARY UNITED STATES
DEPARTMENT OF HOMELAND SECURITY;
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA; JUAN OSUNA, in his official capacity as
Director of Executive Office of Immigration Review;
JOHN TSOUKARIS, in his official capacity as
Field Office Director for Enforcement and Removal
Operations, Newark Field Office of U.S. Immigration and
Customs Enforcement; CHRISTOPHER SHANAHAN, in his
official capacity as Field Office Director for Enforcement and
Removal Operations, New York Field Office of U.S.
Immigration and Customs Enforcement;
WARDEN BERGEN COUNTY JAIL;
JOSEPH TRABUCCO, in his official capacity as Director of
the Delaney Hall Detention Facility;
WARDEN ELIZABETH COUNTY DETENTION CENTER;
WARDEN ESSEX COUNTY CORRECTIONAL
FACILITY; OSCAR AVILES, in his official capacity as
Director of the Hudson County Correctional Facility
*Pursuant to Fed. R. App. P. 43(c)
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 3-12-cv-02806)
Honorable Freda L. Wolfson, U.S. District Judge
_______________
Argued: February 10, 2016
Before: FUENTES, KRAUSE, and ROTH, Circuit Judges
(Filed: September 22, 2016)
Lawrence S. Lustberg
Joseph A. Pace
Gibbons
One Gateway Center
Newark, NJ 07102
2
Judy Rabinovitz [ARGUED]
Michael K.T. Tan
American Civil Liberties Union
Immigrants’ Rights Project
125 Broad St.
18th Floor
New York, NY 10004
Counsel for Appellants
Craig W. Kuhn
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Elizabeth J. Stevens [ARGUED]
United States Department of Justice
Office of Immigration Litigation
450 5th Street, N.W.
Washington, DC 20001
Counsel for Appellees
Andrew S. Amer
Simpson, Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Counsel for Amicus-Appellants
_______________
OPINION
_______________
3
KRAUSE, Circuit Judge.
Over the course of the last four years, Appellants
Garfield Gayle, Neville Sukhu, and Sheldon Francois have
been litigating, and the Government, defending, a purported
class action to challenge the constitutionality of 8 U.S.C.
§ 1226(c), the section of the Immigration and Nationality Act
that requires the mandatory detention of aliens who have
committed specified crimes. The parties’ significant
investment of time and effort culminated in partial grants and
partial denials of summary judgment and two thoughtful and
thorough opinions of the District Court that are now the
subject of able briefing by the parties and amici on appeal. It
is especially unfortunate, then, that when it ruled on the
merits, entered injunctive relief on Appellants’ individual
claims, and then denied class certification on the ground that
it was not “necessary” in view of that injunction, the District
Court put the cart before the horse as to both federal
jurisdiction and our class action jurisprudence. That is, once
Appellants were released from detention, their individual
claims became moot so the District Court retained jurisdiction
only to rule on Appellants’ motion for class certification—not
to decide the merits issues, much less to order individual
relief. So too is our appellate jurisdiction limited to the denial
of class certification.
Because the District Court exceeded its jurisdiction by
adjudicating the merits issues and also adopted a doctrine of
“necessity” to deny class certification instead of analyzing the
criteria enumerated in Rule 23 of the Federal Rules of Civil
Procedure, we will vacate the judgment and the relevant
orders of the District Court and will remand for further
proceedings.
4
I.
A.
Appellants are foreign nationals and Lawful
Permanent Residents of the United States. As a result of
various state-law criminal convictions, the United States
Immigration and Customs Enforcement (“ICE”) sought to
remove each Appellant from the United States. Pending their
removal proceedings, each was detained pursuant to 8 U.S.C.
§ 1226(c), which provides that where ICE has “reason to
believe” that an alien is “deportable” or “inadmissible” by
virtue of having committed one of a number of specified
crimes or being involved in activities threatening national
security, that alien “shall” be taken into custody “when the
alien is released [from detention for those crimes], without
regard to whether the alien is released on parole, supervised
release, or probation, and without regard to whether the alien
may be arrested or imprisoned again for the same offense.”1
8 U.S.C. § 1226(c); In re Joseph, 22 I. & N. Dec. 799, 803-05
(B.I.A. 1999); see also Sylvain v. Att’y Gen., 714 F.3d 150,
152 (3d Cir. 2013). The mandatory detention provision of
§ 1226(c) stands in contrast to the general rule that when the
Government seeks to detain an alien pending his removal
proceedings, he may seek a bond hearing to show that he
should not be detained. See 8 U.S.C. § 1226(a); In re Guerra,
24 I. & N. Dec. 37 (B.I.A. 2006); 8 C.F.R. § 1003.19(b).
Each Appellant sought relief from his mandatory detention.
1
The sole exception to mandatory detention lies where
the Government believes release is necessary to protect a
witness. See 8 U.S.C. § 1226(c)(2).
5
At issue on appeal are the District Court’s rulings on
Appellants’ Third Amended Petition,2 filed on August 5,
2013, and their third motion to certify a class, filed on May
12, 2014.3 The Third Amended Petition raised individual
claims on behalf of Sukhu and two claims on behalf of a
putative class of aliens who are being or will be mandatorily
detained pursuant to § 1226(c). The first such claim alleged
violations of substantive and procedural due process.
Mandatory detention of aliens violates substantive due
process, Appellants contended, when the alien has a
“substantial challenge” to his removal—that is, when he
challenges whether the crime for which he was convicted
renders him removable or when he claims he is entitled to
discretionary relief in the form of cancellation of removal or
adjustment of status.
Appellants’ procedural due process claim challenged
the procedures surrounding so-called “Joseph hearings,” the
mechanism by which an alien who is mandatorily detained
2
The first petition for habeas corpus was filed by
Gayle individually in May 2012 urging that he be given a
bond hearing because ICE violated the dictates of § 1226(c)
by not detaining him immediately after he was released from
state custody. In November 2012, a First Amended Petition
was filed, including individual claims for relief for Sukhu, as
well as claims brought on behalf of a putative class. The
Second Amended Petition, filed in May 2013, added claims
for Francois.
3
As discussed in more detail below, the first motion
to certify was filed in November 2012. The second motion to
certify was filed in February 2014.
6
pending his removal proceedings is provided “with the
opportunity to offer evidence and legal authority on the
question whether the Service has properly included him
within a category that is subject to mandatory detention.” In
re Joseph, 22 I. & N. Dec. at 805. Specifically, Appellants
asserted that an alien who is mandatorily detained pursuant to
§ 1226(c) is allowed to “seek[] a determination by an
immigration judge that [he] is not properly included within”
§ 1226(c). 8 C.F.R. § 1003.19(h)(2)(ii); see also In re
Joseph, 22 I. & N. Dec. at 800 (holding that an alien is
entitled to a bond hearing if he can show at a Joseph hearing
that the Government is “substantially unlikely to establish, at
the merits hearing, the charge or charges that subject the alien
to mandatory detention”). Appellants alleged (1) that aliens
do not receive adequate notice of their right to a hearing, (2)
that Joseph hearing procedures impermissibly place the initial
burden of proof on the alien, and (3) that a contemporaneous
verbatim record should be made of each Joseph hearing.
In connection with their request for relief, Appellants
also sought to certify a class “consisting of all individuals in
New Jersey who are or will be detained pursuant to 8 U.S.C.
§ 1226(c).” First Mot. to Certify (D.Ct. Dkt. No. 13).
Appellants relied on Federal Rule of Civil Procedure
23(b)(2), which allows plaintiffs to bring a class action when
“the party opposing the class has acted or refused 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). The District Court ruled on the merits of the claims
brought on behalf of the class in two stages. In an order and
opinion dated March 14, 2014 (Gayle I), the District Court
partially granted the Government’s motion to dismiss and
7
held that § 1226(c) did not violate substantive due process
with respect to aliens who assert a substantial challenge to
their removability. The District Court thus dismissed
Appellants’ petition “to the extent that [Appellants] are
requesting that a Joseph hearing be provided to any
mandatorily detained alien who has a ‘substantial challenge’
to his or her removal on grounds other than whether the alien
falls within the § 1226(c) categories requiring mandatory
detention.” Gayle v. Johnson, 4 F. Supp. 3d 692, 721 (D.N.J.
2014).4
In an order dated January 28, 2015 (Gayle II), the
District Court resolved the remaining claims—i.e., the
adequacy of Joseph hearing procedures—on cross-motions
for summary judgment, and also ruled on Appellants’ motion
to certify a class. As to the merits, the court held (1) that the
form giving aliens notice of their right to seek a Joseph
hearing (“Form I-286”) does not provide constitutionally
adequate notice and that the Government was required to
revise the form; (2) that Joseph hearing procedures violate
due process by not placing the initial burden on the
Government, but that once the Government shows probable
cause to believe that the alien is subject to mandatory
detention, the burden shifts to the alien to show that the
Government is “substantially unlikely to prevail” in proving
the alleged charges; and (3) that due process does not require
a contemporaneous recording of a Joseph hearing. See Gayle
v. Johnson, 81 F. Supp. 3d 371 (D.N.J. 2015).
4
Because Francois did not challenge whether he fell
within a § 1226(c) category, the court then dismissed
Francois for lack of standing. Gayle I, 4 F. Supp. 3d at 721.
8
The District Court judge then addressed the third
motion to certify a class, having denied the first motion in
May 2013 “without prejudice pending an expanded record
and/or discovery,” Gayle v. Warden, 3:12-cv-02806, ECF No.
50, at 2 (May 13, 2013), and having terminated the second
motion in connection with her March 14, 2014 opinion by
instructing Appellants to refile a motion “limited to those
individuals who are entitled to a Joseph hearing consistent
with this Opinion,” see Gayle I, 4 F. Supp. 3d at 721-22.
Appellants did so, redefining the class as “all individuals who
are or will be detained within the State of New Jersey
pursuant to . . . 8 U.S.C. § 1226(c), and who have a
substantial challenge to ‘threshold deportability’ or
‘inadmissibility’ on one of the statutory grounds that trigger
mandatory detention.” Third Mot. to Certify (D.Ct. Dkt. No.
96). The District Court then denied the third motion to certify
on the grounds that certification was “unnecessary” because
its rulings on the merits of the claims meant that “all aliens
who are subjected to mandatory detention would benefit from
the injunctive relief and remedies that this Court has
imposed.” Gayle II, 81 F. Supp. 3d at 404. Appellants now
appeal the January 28, 2015 order as to both the District
Court’s merits determination and its denial of class
certification.5
5
The Government cross-appealed the summary
judgment order and sought an appellate determination of
whether Form I-286 is constitutionally deficient but
ultimately withdrew that appeal.
9
II.
The District Court had statutory jurisdiction pursuant
to 28 U.S.C. §§ 1331 and 2241. We have statutory
jurisdiction pursuant to 28 U.S.C. § 1291. “We review legal
determinations de novo, factual findings for clear error, and
matters committed to the District Court’s discretion for abuse
thereof.” United States v. Doe, 810 F.3d 132, 142 (3d Cir.
2015).
III.
On appeal, Appellants, joined by numerous amici,
challenge the merits of the District Court’s substantive and
procedural due process rulings, as well as its denial of their
motion to certify a class, and the Government has responded
point by point. Yet, as the parties conceded at oral argument
in response to inquiry by the Court, Oral Arg. at 17:56, 38:01
(argued Feb. 10, 2016),6 the District Court did not have
authority to reach the merits. Nor do we. The District
Court’s judgment therefore must be vacated and the case
remanded for consideration of the only issue over which it
had jurisdiction: the motion for class certification.
We reach this conclusion for three reasons. First,
because the claims of the individual class representatives
were long ago moot and no mootness exception applies, the
District Court exceeded its jurisdiction in reaching the merits.
Second, under the well-recognized exception to mootness in
U.S. Parole Commission v. Geraghty, 445 U.S. 388 (1980),
because the motion to certify a class was filed at a point in
6
Available at http://www2.ca3.uscourts.gov/
oralargument/audio/15-1785Gaylev.WardenMonmouth.mp3.
10
time when at least one putative representative had a live
claim, the District Court had jurisdiction to consider that
motion even though the putative representatives’ claims
became moot. Third, in denying the motion to certify a class,
the District Court erred by disregarding the Rule 23 criteria
and instead relying exclusively on the ground that a class
action was “unnecessary” because it would serve no useful
purpose given the District Court’s merits rulings—rulings it
had no jurisdiction to make.
A.
We begin our case where we must begin every case:
with the question of jurisdiction. Article III of the
Constitution gives federal courts jurisdiction only over
“Cases” and “Controversies.” U.S. Const., art. III, § 2. As a
federal court, we must assure ourselves that we have Article
III jurisdiction in every case that comes before us. Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180 (2000). A court has jurisdiction only if the claims
before it are not moot. See DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 341-42, 352 (2006). The mootness doctrine
imposes two requirements: (1) that the underlying dispute
presents “live” issues, and (2) that the parties have “a legally
cognizable interest in the outcome”—that is, a personal stake
in the dispute. Chafin v. Chafin, 133 S. Ct. 1017, 1023
(2013) (quoting Already, LLC v. Nike, Inc., 133 S. Ct. 721,
726 (2013)). The parties must have a personal stake in the
litigation not only at its inception, but throughout its
existence. Id. at 1023. Therefore, “if developments occurring
during the course of adjudication eliminate a plaintiff’s
personal stake in the outcome of a suit, then a federal court
must dismiss the case as moot.” Rosetti v. Shalala, 12 F.3d
1216, 1224 (3d Cir. 1993).
11
Here, we conclude that the District Court lacked
jurisdiction—at least to reach the merits—as Appellants’
individual claims were moot long before it issued the relevant
orders. Each Appellant sought a bond hearing in an effort to
obtain release from custody. But Gayle was granted habeas
relief and released on bond in March 2013. See Gayle v.
Napolitano, No. 3:12-cv-02806, 2013 WL 1090993 (D.N.J.
Mar. 15, 2013). Sukhu was released on May 8, 2013, after
the immigration judge granted his application for adjustment
of status. And Francois was released on bond on August 30,
2013, after the District Court ordered that he be given a bond
hearing pursuant to Diop v. ICE/Homeland Security, 656 F.3d
221 (3d Cir. 2011). See Francois v. Napolitano, No. 3:12-cv-
02806, 2013 WL 4510004 (D.N.J. Aug. 23, 2013). His
removal was terminated on September 26, 2013, and the
deadline for the Government to appeal that determination
expired on October 28, 2013, see 8 C.F.R. 1003.38(b) and
from that point, there was no effective relief the District Court
could provide. In short, Appellants’ individual claims for
relief have been moot for nearly three years.7
7
Ironically, as early as May 2013, Appellants’ counsel
alerted the District Court to the problem of mootness for
named representatives Gayle and Sukhu and advised the
District Court “[w]e may have others the next time we come
back.” May 10, 2013 Hr’g Tr. at 45 (D.Ct. Dkt. No. 54). But
no others were added to cure mootness, and it appears that,
after the District Court dismissed Gayle’s and Sukhu’s claims
as moot on May 13, 2013, neither the parties nor the District
Court concerned themselves again with the issue of the
Court’s jurisdiction.
12
Although not urged by the parties, we have considered
whether the exception to mootness for disputes “‘capable of
repetition’ while ‘evading review’” might apply to salvage
Appellants’ individual claims. See Turner v. Rogers, 564
U.S. 431, 439 (2011) (quoting S. Pac. Terminal Co. v.
Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911)).
That exception applies “if (1) the challenged action is in its
duration too short to be fully litigated prior to its cessation or
expiration, and (2) there is a reasonable expectation that the
same complaining party will be subjected to the same action
again,” id. at 439-40 (quoting Weinstein v. Bradford, 423 U.S.
147, 149 (1975) (per curiam)). We have held that detention
pursuant to § 1226(c) may “evade review” where it is
temporary and “the underlying removal proceedings
justifying detention may very well be nearing a resolution by
the time a federal court of appeals is prepared to consider
them,” Diop, 656 F.3d at 227 and it is capable of repetition
when an alien has been mandatorily detained based on a prior
conviction but also has another prior conviction that would
justify mandatory detention, id. at 228; see also United States
ex rel. Forman v. McCall, 709 F.2d 852, 855 n.9 (3d Cir.
1983) (finding an inmate’s challenge to parole procedures not
moot even after he was paroled because the parole
commission reserved the right to void his parole if the district
court’s order granting relief was reversed or vacated).
None of those circumstances pertain here. Sukhu’s
application for status adjustment was granted and his removal
proceedings were terminated on April 30, 2013, while
Francois’s removal was cancelled on September 26, 2013.
Thus, unless they commit qualifying crimes in the future,
these named representatives have no reasonable prospect of
being subjected to removal proceedings, much less mandatory
13
detention pursuant to § 1226(c). Gayle’s case presents a
closer question as his removal proceedings were still ongoing
at the time the District Court rendered its merits decisions, so
there was at least a theoretical possibility that he could have
been detained again if he had another prior conviction that
triggered mandatory detention. See Diop, 656 F.3d at 228.
As the parties concede, however, he did not.8
8
In addition to Gayle’s 2007 drug conviction, which
served as the basis for his mandatory detention, he was
arrested for marijuana possession in 2008 and 2011, which
resulted in convictions for disorderly conduct under New
York Penal Law § 240.20. But disorderly conduct in New
York is not an aggravated felony, see 8 U.S.C.
§§ 1101(a)(43), 1227(a)(2)(A)(iii); N.Y. Penal Law
§§ 70.15(4), 240.20 (stating that disorderly conduct is a
“violation” punishable by no more than 15 days’
incarceration), or a drug offense, see 8 U.S.C.
§ 1227(a)(2)(B)(i); In re Zamora, 2008 WL 655924, at *1
(B.I.A. Feb. 14, 2008) (unpublished); cf. In re Gomez-Rivas,
2011 WL 4730892 (B.I.A. Sept. 27, 2011) (unpublished).
Nor are these convictions for disorderly conduct generally
considered crimes involving moral turpitude. See 8 U.S.C.
§ 1227(a)(2)(A)(i), (ii); Application for Waiver of Grounds of
Inadmissibility, 2010 WL 4686668, at *2 (DHS Apr. 16,
2010); Pet. for Immigrant Abused Spouse, 2013 WL 5504790,
at *5 & n.2 (DHS Feb. 14, 2013). Gayle’s 1995 controlled
substances conviction also could not subject him to
mandatory detention under § 1226(c) because the statute
applies only to aliens released from physical custody after the
statute’s effective date, see Saysana v. Gillen, 590 F.3d 7, 10
& n.2, 15 n.5, 16-17 & n.6 (1st Cir. 2009); In re West, 22 I. &
14
In sum, Appellants had received the very relief they
sought and presented no live individual claim to the District
Court well before that court issued its opinion and order of
March 14, 2014, partially granting the Government’s motion
to dismiss and ruling on the merits of Appellants’ substantive
due process claim, or its opinion and summary judgment
order of January 28, 2015, ruling on the merits of the
remaining claims, granting partial relief, and denying class
certification on the ground that the relief it granted rendered
certification unnecessary. Accordingly, the District Court
N. Dec. 1405, 1410 (B.I.A. 2000); see also Lora v. Shanahan,
804 F.3d 601, 609-10 (2d Cir. 2015), and Gayle was paroled
before the statute went into effect in 1998.
At oral argument, Gayle’s counsel informed us that he
is facing new criminal charges for petty larceny but that these
charges “will in all likelihood be dismissed.” Oral Arg. at
3:08. In any event, a later conviction subjecting Gayle to
mandatory detention does not “unmoot” the case and
retroactively confer jurisdiction. Similarly, the possibility
that Gayle might commit crimes in the future does not keep
his claim alive absent some indication that Gayle is unable to
follow the law. See, e.g., Turner, 544 U.S. at 440 (holding
that a petitioner’s suit challenging his previous incarceration
for failing to pay child support was not moot because there
was “a more than ‘reasonable’ likelihood that Turner will
again be ‘subjected to the same action’” in light of numerous
failures to pay).
15
lacked jurisdiction to enter those orders and they must be
vacated.9
B.
Had this case involved only Appellants’ individual
claims, federal jurisdiction would be absent, as in the District
Court, and this case would be at an end. But class claims can
breathe life into an otherwise moot case for they “allow a
plaintiff to continue seeking class certification in certain
circumstances even though his individual claim for relief has
become moot.” Richardson v. Bledsoe, --F.3d--, 2016 WL
3854216, at *3 (3d Cir. July 15, 2016). As relevant here, so
long as a plaintiff files a motion to certify a class when he still
has a live claim, the mooting of that claim while the motion is
pending precludes the court from reaching the merits but does
not preclude it from deciding the certification motion.
Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d
124, 135 (3d Cir. 2000); see also Geraghty, 445 U.S. at 397.10
9
The relief ordered by the District Court appears to
have exceeded its jurisdiction in yet another respect: Federal
courts, other than the Supreme Court, are deprived of
jurisdiction “to enjoin or restrain the operation of [§ 1226(c)]
other than with respect to the application of such provisions
to an individual alien.” 8 U.S.C. § 1252(f)(1); see also Alli v.
Decker, 650 F.3d 1007, 1016 (3d Cir. 2011) (holding that
§ 1252(f)(1) permits classwide declaratory relief). Thus,
despite its conclusion to the contrary, see Gayle I, 4 F. Supp.
3d at 721, it seems the scope of the injunction entered by the
District Court also exceeded its authority.
10
We are bound by our longstanding precedent
interpreting Geraghty to mean that a district court retains
16
This is because a plaintiff’s claim that he should represent the
class is one that is “presented . . . in a concrete factual setting
and [with] self-interested parties vigorously advocating
opposing positions,” and such a claim “remains as a concrete,
sharply presented issue” even if the plaintiff’s individual
claims expire. Geraghty, 445 U.S. at 403-04. For the same
reason, the named plaintiff may appeal the denial of a motion
to certify the class, id. at 404, as long as he “had a live claim
when he filed for class certification” and “appellate review
may reverse an erroneous denial of class certification that, ‘if
jurisdiction to decide a motion to certify as long as the
individual plaintiff had a live claim at the time it was filed.
See Lusardi v. Xerox Corp., 975 F.2d 964, 977 n.19 (3d Cir.
1992); Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir. 1987).
As we have previously observed, some Courts of Appeals
hold that a plaintiff’s individual claims must remain live at
the time the motion to certify a class is decided, not merely
filed, relying on Geraghty’s dictum that “[i]f the named
plaintiff has no personal stake in the outcome at the time class
certification is denied, relation back of appellate reversal of
that denial still would not prevent mootness of the action,”
Geraghty, 445 U.S. at 404 n.11. See, e.g., Lusardi, 975 F.2d
at 977 n.19 (collecting cases). But unless and until the
Supreme Court has clearly taken a contrary view or we revisit
our own precedent en banc, we will continue to adhere to the
rule of Wilkerson and Lusardi. See In re Carco Elecs., 536
F.3d 211, 214 (3d Cir. 2008) (noting “strong statements” in
Supreme Court opinions suggesting that a prior Third Circuit
decision was “flawed” but stating that overruling that
decision “must be left to the wise counsel of the Court en
banc”).
17
correctly decided, would have prevented the action from
becoming moot,’” Lusardi v. Xerox Corp., 975 F.2d 964, 977
(3d Cir. 1992) (quoting Geraghty, 445 U.S. at 404 n.11),
because “the corrected ruling ‘relates back’ to the date of the
original denial,” Geraghty, 445 U.S. at 404 n.11.11 Thus, the
critical question is whether a plaintiff had a live claim at the
time the operative motion to certify was filed.
In this case, the answer to that question is not as
simple as it might seem because Appellants technically filed
three different motions to certify. While at least one
Appellant had standing at the time the first was filed in
November 2012, each Appellant’s claims had become moot
before the filing of the second motion to certify, much less
the third motion, which is the one the District Court decided
on January 28, 2015 and the subject of this appeal. Thus, this
case requires us to decide how Geraghty’s class mootness
rule should apply to sequentially filed motions for class
certification.
We considered this issue once before in Lusardi.
There, the district court had conditionally certified a class
under the Age Discrimination and Employment Act but later
decertified it on the ground that the members of the proposed
class were not similarly situated; the plaintiffs’ individual
11
As we recently observed, a plaintiff also may
continue to seek certification if his claims became moot after
he filed a class complaint but before he filed for class
certification where the defendant “picked off” the plaintiff by
mooting his individual claim before he had a fair opportunity
to seek certification. See Richardson, 2016 WL 3854216, at
*10. That is not the situation here.
18
claims then became moot, and after the case was reassigned
to another judge, plaintiffs sought a de novo hearing on class
certification to recertify the class or to certify four subclasses.
975 F.2d at 967-69. The district judge agreed with
defendants that “the dismissal of plaintiffs’ individual claims
deprived the district court of jurisdiction to address the merits
of class recertification,” id. at 969, and we affirmed, rejecting
plaintiffs’ argument that their de novo certification motion
“‘relates back’ to and would correct [the original judge’s]
assertedly erroneous class decertification, decided when they
still had live claims,” id. at 978.
The Government argues that Lusardi compels the
same result in this case—that is, that Appellants’ third motion
to certify was a de novo motion filed after Appellants’
individual claims expired and was therefore unreviewable by
the District Court. See Gov’t’s Ltr. Br. 5. Appellants, on the
other hand, urge that Lusardi is inapposite because neither
Appellants’ first nor second motions for class certification
were resolved based on an analysis of the Rule 23 factors; the
District Court simply deferred that analysis until the third
motion, so that all three should be considered one
“continuously pending” motion. See Appellants’ Ltr. Br. 7.
Appellants have the better of the argument. We
acknowledged in Lusardi that so long as the named
representative has a live claim at the time the motion is filed,
Geraghty’s relation-back doctrine applies and the
representative’s “private dispute, although mooted, essentially
carrie[s] forward for the limited purpose of arguing a
reviewable motion through to completion.” Lusardi, 975
F.2d at 976 (emphasis added). The plaintiffs in that case,
however, had seen their original motion to completion when
the class was decertified for failure to comply with the
19
certification requirements; those plaintiffs were now seeking
to have the reassigned judge “decide the question entirely
anew” in “a de novo hearing [that] would require the creation
of an entirely new record and adjudication of complicated
class considerations . . . at a time when the interests of
putative class representatives may no longer be squarely
adverse to defendant or wholly in line with absent ‘class’
members.” Id. at 981.12 That, we concluded, would stretch
Geraghty’s relation-back doctrine beyond the breaking point
“[b]ecause a determination on the merits of the [class
certification] motion ‘could not relate back into a void.’” Id.
at 978 (quoting Tucker v. Phyfer, 819 F.2d 1030, 1035 (11th
Cir. 1987)).
There was no such void here, however, in Appellants’
efforts to litigate their original motion to completion or,
hence, in the District Court’s jurisdiction. The first motion to
certify was not denied for failure to satisfy Rule 23 criteria.
Instead, it was denied solely so that further discovery could
be completed “without prejudice pending an expanded record
and/or discovery.” Gayle, 3:12-cv-02806, ECF No. 50, at 2.
Likewise, the District Court terminated the second motion,
not as a final adjudication of certification, but with express
instruction that Appellants refile a motion to certify a class
“limited to those individuals who are entitled to a Joseph
12
Crucially, the plaintiffs in Lusardi failed to properly
appeal the decertification order that extinguished their class
claims by omitting it from their notice of appeal. As a result,
we could not review the initial certification decision. See
Lusardi, 975 F.2d at 970-73. No such defect prevents our
review of the class certification denial in the instant case.
20
hearing consistent” the court’s elimination of certain claims
in Gayle I. Gayle I, 4 F. Supp. 3d at 721-22. Thus, the
successive motions were substantially similar and required no
additional discovery, and until the District Court ruled on the
third motion, there was no denial of class certification based
on a Rule 23 analysis or other intervening event that could be
deemed to break the jurisdictional chain.
Our holding today—that Geraghty’s relation-back
doctrine encompasses successive, substantially similar
motions to certify unless and until certification has been
finally resolved on Rule 23 grounds—comports with the logic
of Geraghty and the practicalities of litigation.13 A plaintiff
who files a motion to certify a class prior to the expiration of
his individual claims does not lose his “interest in accurate
resolution of his legitimate efforts to serve as class
representative,” Lusardi, 975 F.2d at 976, merely because the
District Court, as a technical matter, denies or terminates the
motion without actually deciding it. Rather, his stake
“carrie[s] forward for the limited purpose of arguing a
reviewable motion through to completion,” id., and the
13
We need not decide whether a different result would
be warranted where plaintiff’s successive motion was so
substantially different that it “would require the creation of an
entirely new record and adjudication of complicated class
considerations . . . at a time when the interests of the putative
class representatives may no longer be squarely adverse to
defendant or wholly in line with absent ‘class’ members.”
Lusardi, at 981. Here, the first and second motions to certify
were essentially the same, while the third simply narrowed
the class consistent with Gayle I.
21
certification question remains concrete and fit for judicial
resolution, see Geraghty, 445 U.S. at 402-04.
Moreover, as the drafters of Rule 23 recognize, “there
are ‘many valid reasons that may justify deferring the initial
certification decision’” to a later period in the litigation.
Richardson, 2016 WL 3854216, at *6 (quoting Fed. R. Civ.
P. 23 advisory committee’s note to the 2003 amendment).
Yet district judges must also manage busy dockets, and one
who intends to defer ruling, for example, pending additional
discovery relevant to Rule 23 criteria, might reasonably
decide to deny such a motion without prejudice rather than
hold it in abeyance for months on end. See, e.g., 28 U.S.C.
§ 476 (requiring semiannual public disclosure of the number
of motions that have been pending on each district judge’s
docket for more than six months). To hold that a plaintiff’s
certification claim is extinguished by such a denial would
enfeeble the “flexible character” of the mootness doctrine,
Geraghty, 445 U.S. at 400, and unmoor it from the realities of
litigation.
Indeed, consider the implications of applying Lusardi
to the facts of this case. If the District Court had jurisdiction
only over the first motion to certify, our appellate jurisdiction
would extend only to its order on that motion—an order
denying the motion without prejudice to additional discovery.
Yet that order is unreviewable: It is not a final order within
the meaning of 28 U.S.C. § 1291, see Hagan v. Rogers, 570
F.3d 146, 151 (3d Cir. 2009) (“[A]n order dismissing a
complaint without prejudice is normally not final within the
meaning of [28 U.S.C.] § 1291.”), nor is it subject to
interlocutory appeal under Rule 23(f), see In re Nat’l Football
League Players Concussion Litig., 775 F.3d 570, 584 (3d Cir.
2014) (stating that an order “conditionally” certifying a class
22
under Rule 23(e) “but reserv[ing] the class certification
determination for a later time,” and similar “order[s] issued
under some other subdivision of Rule 23” are not subject to
interlocutory review under Rule 23(f)). That would mean the
district court’s denial without prejudice—now
unchallangeable in the district court and unreviewable on
appeal—would preclude the plaintiff from obtaining a review
of his right to represent a class. Geraghty dictates otherwise.
445 U.S. at 401-04 (explaining that a plaintiff retains the
“right” to seek to represent a class even after his personal
claim has become moot).
In short, the District Court had jurisdiction to decide
Appellants’ third motion to certify, and we now turn to the
question of whether its denial of that motion was proper.
C.
The sole ground for the District Court’s denial of class
certification in this case was that it “d[id] not find
certification of a class necessary.” Gayle II, 81 F. Supp. 3d at
403. As explained below, that was error, for “necessity” is
not an express requirement of Rule 23, and the criteria the
District Court was required to consider are wholly absent
from its discussion.
To maintain a class action under Federal Rule of Civil
Procedure 23, a plaintiff must first show that “the class is so
numerous that joinder of all members is impracticable”
(numerosity); that “there are questions of law or fact common
to the class” (commonality); that “the claims or defenses of
the representative parties are typical of the claims or defenses
of the class” (typicality); and that “the representative parties
will fairly and adequately protect the interests of the class”
23
(adequacy). See Fed. R. Civ. P. 23(a). Second, the plaintiff
must show that the class action falls within one of the three
types enumerated in Rule 23(b)—in this case, Rule 23(b)(2),
which provides that “[a] class action may be maintained” if
“the party opposing the class has acted or refused 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.” “Class
certification is proper only ‘if the trial court is satisfied, after
a rigorous analysis, that the prerequisites’ of Rule 23 are
met.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305,
309 & n.5 (3d Cir. 2008), as amended (Jan. 16, 2009)
(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161
(1982)).
Here, the District Court denied class certification as
not “necessary” because a Rule 23(b)(2) class is limited to
injunctive and declaratory relief and the court’s declaration as
to the unconstitutionality of the government’s procedures and
its grant of injunctive relief on an individual basis “would be
binding on all of the governmental agencies and would indeed
inure to the benefit of all members of the proposed class.”
See Gayle II, 81 F. Supp. 3d at 403. In assuming a
“necessity” requirement, the District Court relied on Ihrke v.
N. States Power Co., 459 F.2d 566 (8th Cir.), vacated on
other grounds sub nom., N. States Power Co. v. Ihrke, 409
U.S. 815 (1972), in which the Eighth Circuit held a court may
deny certification of a 23(b)(2) class where “[t]he
determination of the constitutional question can be made by
the Court . . . regardless of whether [the] action is treated as
an individual action or a class action. No useful purpose
would be served by permitting [such a] case to proceed as a
class action.” Id. at 572.
24
The role of “necessity” in our own Circuit, however,
has been an open question. Although the Government asserts
that we adopted a freestanding necessity requirement in
Carter v. Butz, 479 F.2d 1084, 1089 (3d Cir. 1973), our
opinion in that case and subsequent cases make clear we did
no such thing. True, in Carter, we affirmed the district
court’s denial of certification as “within the range of
discretion permitted by Rule 23” when one of the rationales
offered by the district court was that “the precedential value
of its decision would render a judgment in favor of the class
unnecessary,” but the district court also had found a
traditional Rule 23 factor, commonality, to be lacking. Id.
Moreover, just a few years after Carter, we explicitly stated
that a plaintiff seeking Rule 23 certification “need not . . .
prove[] that certification [is] ‘necessary,’ but only that there
was compliance with the prerequisites of Rule 23.” Geraghty
v. U.S. Parole Comm’n, 579 F.2d 238, 252 (3d Cir. 1978),
vacated on other grounds sub nom., Geraghty, 445 U.S. 388
(1980).
Before answering this question, we consider the views
of our sister Circuits—views that turn out to be wide-ranging.
The Seventh Circuit has expressly rejected the contention that
a district court can deny certification as unnecessary, see, e.g.,
Brown v. Scott, 602 F.2d 791, 795 (7th Cir. 1979), while other
Circuits have affirmed the denial of class certification on that
ground, at least in the Rule 23(b)(2) context, see, e.g., Galvan
v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973); Sandford v. R.
L. Coleman Realty Co., 573 F.2d 173, 178-79 (4th Cir. 1978);
Craft v. Memphis Light, Gas & Water Div., 534 F.2d 684, 686
(6th Cir. 1976); James v. Ball, 613 F.2d 180, 186 (9th Cir.
1979), reversed on other grounds, Ball v. James, 451 U.S.
25
355 (1981); Kan. Health Care Ass’n v. Kan. Dep’t of Soc. &
Rehab. Servs., 31 F.3d 1536, 1548 (10th Cir. 1994).
The First Circuit has staked out a middle ground,
observing in light of Rule 23(b)(2)’s express requirement
“that final injunctive relief or corresponding declaratory relief
[be] appropriate respecting the class as a whole,” Fed. R.
Civ. P. 23(b)(2) (emphasis added), that certification under
Rule 23(b)(2) may be denied where classwide relief is
unnecessary because such relief is then a “formality or
otherwise inappropriate.” Dionne v. Bouley, 757 F.2d 1344,
1356 (1st Cir. 1985). At the same time, the court recognized
that “[t]here may . . . be situations where a class certification
under Rule 23(b)(2) will arguably be unnecessary, but where
other considerations may render a denial of certification
improper,” such as the risk of mootness, the possibility of a
defendant’s non-acquiescence in the court’s decision, or
where class certification would not burden the court. Id. at
1356. We find the First Circuit’s approach persuasive.
Accordingly, we hold today that necessity is not a
freestanding requirement justifying the denial of class
certification.14 However, it may be considered to the extent it
14
Indeed, requiring “necessity” over and above Rule
23’s enumerated criteria would create conflict with Shady
Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S.
393 (2010)—in which the Supreme Court emphasized the
primacy of Rule 23’s enumerated criteria, explaining that the
Rule admonishes that “if [Rule 23’s] prescribed preconditions
are satisfied ‘[a] class action may be maintained’ (emphasis
added)—not ‘a class action may be permitted.’ . . . The
discretion suggested by Rule 23’s ‘may’ is discretion residing
in the plaintiff,” id. at 399-40 —and Geraghty itself—in
26
is relevant to the enumerated Rule 23 criteria, including “that
final injunctive relief or corresponding declaratory relief [be]
appropriate respecting the class as a whole.” Fed. R. Civ. P.
23(b)(2). That is, there may be circumstances where class
certification is not appropriate because in view of the
declaratory or injunctive relief ordered on an individual basis,
there would be no meaningful additional benefit to
prospective class members in ordering classwide relief. See,
e.g., Galvan, 490 F.2d at 1261-62 (affirming a district court’s
denial of class certification because the defendant “has made
clear that it understands the judgment to bind it with respect
to all claimants; indeed even before entry of the judgment, it
withdrew the challenged policy even more fully than the court
ultimately directed and stated it did not intend to reinstate the
policy”).
The circumstances in which classwide relief offers no
further benefit, however, will be rare, and courts should
which the Court stated that “[Rule 23] give[s] the proposed
class representative the right to have a class certified if the
requirements of the Rule[] are met,” 445 U.S. at 403. In
addition, to the extent necessity would require a showing that
a class action was “superior to other available methods for
fairly and efficiently adjudicating the controversy,” as
required under Fed. R. Civ. P. 23(b)(3), such a requirement
would be in tension with the absence of a “superiority”
requirement in Rule 23(b)(2), see Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 362-63 (2011) (observing that a
putative class representative need not show that a Rule
23(b)(2) “class action is a superior method of adjudicating the
dispute” because in 23(b)(2) cases, “superiority [is] self-
evident”).
27
exercise great caution before denying class certification on
that basis. After all, the imposition of individual relief is no
guarantee it will be carried over to other class members. See
Gurmankin v. Costanzo, 626 F.2d 1132, 1136-37 (3d Cir.
1980) (recognizing in a different context that stare decisis
alone will not always cause a defendant to abide by a holding
with respect to similarly situated individuals and that, in such
circumstances, a district court might need to grant more
“effective remedial relief”). Indeed, as the Government
cautioned in its briefing on appeal, “as a matter of practice,
the Department of Justice may choose to acquiesce in a
particular district court decision, but such acquiescence is not
as a matter of law,” Gov’t’s Ltr.. Br. at 1, and that is borne
out in practice. For example, even when a Court of Appeals
has struck down a law or regulation, the Government has
sometimes ceased enforcement only in that circuit and
otherwise continued to apply it nationwide. E.g., Cen v. Att’y
Gen., --F.3d--, 2016 WL 3166013, at *5 (3d Cir. June 6,
2016).
Where class certification is denied on the ground of
necessity, yet would-be class members continue to be
subjected to injury, their only option may be to undertake the
expense, burden, and risk of instituting their own litigation—
barriers that in many cases will be prohibitive. The
consequences can be significant for those who would
otherwise benefit from the relief afforded by Rule 23(b)(2), a
rule “designed specifically for civil rights cases seeking broad
declaratory or injunctive relief for a numerous and often
unascertainable or amorphous class of persons.” Baby Neal
ex rel. Kanter v. Casey, 43 F.3d 48, 59 (3d Cir. 1994)
(quoting 1 Newberg & Conte, Newberg on Class Actions
§ 4.11, at 4-39 (1992)); see also Fed. R. Civ. P. 23 advisory
28
committee’s note (1966) (explaining that “[i]llustrative” of
Rule 23(b)(2) class actions “are various actions in the civil-
rights field where a party is charged with discriminating
unlawfully against a class, usually one whose members are
incapable of specific enumeration”). A failure to exercise
careful scrutiny before denying certification as unnecessary
risks “plac[ing] the defendant in the driver’s seat,” and
allowing the defendant to, in essence, unilaterally prevent
classwide relief. Cf. Campbell-Ewald Co. v. Gomez, 136 S.
Ct. 663, 672 (2016) (rejecting a defendant’s “gambit” to moot
a Rule 23(b)(3) class action by offering a settlement that the
named plaintiffs did not accept).15
15
Moreover, absent the attorneys’ fees provided by
class treatment, attorneys may well be less willing to seek
individual relief on plaintiffs’ behalf. After all, the class
action device is designed in part to spur attorneys “who
otherwise might not consider it worth the candle to embark on
litigation in which the optimum result might be more than
consumed by the cost. The prospect of [class action] fee
arrangements offers advantages for litigation by named
plaintiffs . . . as well as for their attorneys.” See Deposit
Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 338 (1980); see
also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617
(1997) (“The policy at the very core of the class action
mechanism is to overcome the problem that small recoveries
do not provide the incentive for any individual to bring a solo
action . . . . A class action solves this problem by aggregating
the relatively paltry potential recoveries into something worth
someone’s (usually an attorney’s) labor.” (quoting Mace v.
Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997))).
29
With these concerns in mind, courts must engage in a
“rigorous analysis” of the appropriateness of 23(b)(2) relief,
as well as the other Rule 23 criteria, before denying class
certification. See Falcon, 457 U.S. at 160-61; Byrd v.
Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015). As our sister
Circuits have recognized, a court must do more than assume
or hypothesize that a ruling on the claims of an individual
plaintiff will accrue to the benefit of the class. See, e.g.
Galvan, 490 F.2d at 1261-62; Kan. Health Care Ass’n., 31
F.3d at 1548 (affirming the district court’s denial of
certification in a challenge to a state’s Medicare
reimbursement plan as unnecessary because the district court
found that “we have no reason to doubt that defendants would
apply any changes made to the reimbursement formula
uniformly to nursing homes in Kansas”).
Rather, courts should scrutinize with care the
representation that classwide relief is not necessary and
consider, among other things: (1) the nature of the claims and
of the parties; (2) the relief available to an individual plaintiff
and the extent to which that relief would benefit putative class
members;16 (3) the strength of the evidence that a defendant
will abide by a court’s ruling on an individual plaintiff’s
claim with respect to others who are similarly situated; (4) the
16
Compare Baeder v. Heckler, 768 F.2d 547, 553 (3d
Cir. 1985) (holding that the district court lacked the authority
to enjoin a federal agency’s treatment of anyone other than
the individual plaintiffs in that case), with Gurmankin, 626
F.2d at 1136 (accepting a defendant’s concession that, even
where a class has not been certified, “the district court has the
ability to render relief which is operative beyond the named
plaintiff”).
30
ease with which putative class members would be able to
vindicate their rights following a defendant’s noncompliance;
and (5) whether there are other circumstances, such as
impending mootness of the individual claims, that
nonetheless render classwide relief “appropriate”, Fed. R.
Civ. P. 23(b)(2).17 To facilitate appellate review, courts
17
Of course, if a putative class action does not meet
the requirements of Rule 23, then a class may not be certified,
regardless of any implications for mootness. Cf. Geraghty,
579 F.2d at 252 (“[A] possibility of avoiding mootness on
appeal would not, of itself, be a sufficient basis for conferring
class action status on a suit otherwise barred by Rule 23.”).
However, if the prerequisites of Rule 23 are otherwise met,
the impending mootness of individual claims counsels in
favor of certification regardless of whether individual relief
would theoretically render classwide relief unnecessary. For
in that situation, class certification may be the only way to
provide relief. See Winston by Winston v. Children and Youth
Servs. of Del. Cnty., 948 F.2d 1380, 1384 n.2 (3d Cir. 1991)
(suggesting that a district court should certify a class where it
would prevent a case from becoming moot); see also Gratz v.
Bollinger, 539 U.S. 244, 268 (2003) (stating that “class-action
treatment was particularly important in this case because” the
individual claims might have become moot); Dionne, 757
F.2d at 1344 (“There may . . . be situations where a class
certification under Rule 23(b)(2) will arguably be
unnecessary, but where other considerations may render a
denial of a certification improper,” such as the risk of
mootness.); Johnson v. City of Opelousas, 658 F.2d 1065,
1070 (5th Cir. Unit A Oct. 1981) (stating that “[c]ertification
of a class under Rule 23(b)(2) is ‘especially appropriate
where, as here, the claims of the members of the class may
31
should make explicit findings before denying class
certification on the ground that classwide relief is not
appropriate.
Here, without the benefit of the guidance we have
provided today, the District Court denied class certification
on the ground that “no useful purpose would be served by
certifying a class because all aliens who are subjected to
mandatory detention would benefit from the injunctive relief
and remedies that this court has imposed.” Gayle II, 81 F.
Supp. 3d at 404. Because the District Court did not have
jurisdiction to enter the relief on which it predicated its ruling
and because it did not engage in the “rigorous analysis” of
Rule 23 criteria that we have required, we will remand for the
District Court to reconsider Appellants’ motion to certify18
and to conduct that analysis in the first instance.19
become moot as the case progresses’” and holding, therefore,
that the district court “abused its discretion in refusing to
certify an otherwise appropriate class because of ‘lack of
need’” (quoting Adams v. Califano, 474 F. Supp. 974, 979 (D.
Md. 1979))); Finberg v. Sullivan, 634 F.2d 50, 64 (3d Cir.
1980) (stating that Rule 23(b)(2) serves the important purpose
of “ensur[ing] that the claims of unnamed plaintiffs will
receive full appellate review” should the named plaintiffs’
claims become moot).
18
On remand, the Appellants are not confined to
arguing their third motion to certify, which was filed in
response to merits rulings the District Court had no
jurisdiction to make. Instead, the Appellants may opt to
proceed with their second motion to certify or to file an
amended motion.
32
IV.
For the foregoing reasons, we will vacate the District
Court’s judgment and its orders of March 14, 2014 and
January 28, 2015, and will remand for further proceedings
consistent with this opinion.
19
Our holding that the District Court must address
class certification as a threshold issue in the context of this
case does not mean, of course, that a district court must
decide the certification question before deciding other issues
where mootness does not require it. Indeed, the advisory
committee’s note to the 2003 amendments to Rule 23 make
explicit that various “considerations may affect the timing of”
and “may justify deferring” the certification decision,
including a defendant’s motion for dismissal or summary
judgment or the need to explore the designation of class
counsel—although “active management may be necessary to
ensure that the certification decision is not unjustifiably
delayed.” Fed. R. Civ. P. 23 advisory committee’s note to
2003 amendment).
33