SYLVESTER OWINO V. CORECIVIC, INC.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SYLVESTER OWINO; JONATHAN No. 21-55221
GOMEZ, on behalf of themselves, and
all others similarly situated, D.C. No.
3:17-cv-01112-
Plaintiffs-Appellees, JLS-NLS
v.
ORDER AND
CORECIVIC, INC., a Maryland AMENDED
corporation, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted February 18, 2022
San Francisco, California
Filed June 3, 2022
Amended December 20, 2022
2 OWINO V. CORECIVIC, INC.
Before: M. Margaret McKeown and William A. Fletcher,
Circuit Judges, and Richard D. Bennett, * District Judge.
Order;
Opinion by Judge McKeown;
Dissent by Judge VanDyke
SUMMARY **
Class Certification / Victims of Trafficking and
Violence Protection Act
The panel filed (1) an order denying a petition for panel
rehearing and, on behalf of the court, a petition for rehearing
en banc; and (2) an opinion (a) amending and superceding
the panel’s original opinion and (b) affirming the district
court’s order certifying three classes in an action brought
under the Victims of Trafficking and Violence Protection
Act of 2000 by individuals who were incarcerated in private
immigration detention facilities owned and operated by
CoreCivic, Inc., a for-profit corporation.
U.S. Immigration and Customs Enforcement contracts
with CoreCivic to incarcerate detained immigrants in 24
facilities across 11 states. Plaintiffs, detained solely due to
their immigration status and neither charged with, nor
The Honorable Richard D. Bennett, United States District Judge for the
*
District of Maryland, sitting by designation.
This summary constitutes no part of the opinion of the court. It has
**
been prepared by court staff for the convenience of the reader.
OWINO V. CORE CIVIC, INC. 3
convicted of, any crime, alleged that the overseers of their
private detention facilities forced them to perform labor
against their will and without adequate compensation in
violation of the Victims of Trafficking and Violence
Protection Act of 2000, the California Trafficking Victims
Protection Act (“California TVPA”), various provisions of
the California Labor Code, and other state laws.
The panel held that the district court properly exercised
its discretion in certifying a California Labor Law Class, a
California Forced Labor Class, and a National Forced Labor
Class.
The panel held that, as to the California Forced Labor
Class, plaintiffs submitted sufficient proof of a classwide
policy of forced labor to establish commonality. Plaintiffs
established predominance because the claims of the class
members all depended on common questions of law and
fact. The panel agreed with the district court that narrowing
the California Forced Labor Class based on the California
TVPA’s statute of limitations was not required at the class
certification stage.
For the same reasons as above, the panel held that, as to
the National Forced Labor Class, the district court did not
abuse its discretion in concluding that plaintiffs presented
significant proof of a classwide policy of forced labor and
that common questions predominated over individual
ones. The panel held that under Moser v. Benefytt, Inc., 8
F.4th 872 (9th Cir. 2021), CoreCivic’s personal jurisdiction
challenge with respect to the claim of non-California-facility
class members was an issue for the district court to
resolve. The panel declined to vacate the certification of the
National Forced Labor Class, but it held that CoreCivic
retained its personal jurisdiction defense, and the panel
4 OWINO V. CORECIVIC, INC.
remanded the personal jurisdiction question to the district
court for consideration at the appropriate time.
As to the California Labor Law Class, the panel held that
plaintiffs established that damages were capable of
measurement on a classwide basis, and they did not need to
present a fully formed damages model when discovery was
not yet complete. The panel agreed with the district court
that the named plaintiffs were typical of the class they sought
to represent and their allegations, if true, fit within
California’s Unfair Competition Law and the state labor law
provisions they invoked. Narrowing the class based on
statute of limitations was not required at the certification
stage. The panel held that the district court did not abuse its
discretion in certifying a failure-to-pay and waiting-time
claim, which was affirmatively interwoven in plaintiffs’
pleadings.
Judge VanDyke, joined by Judges Callahan, Bennett, R.
Nelson, and Bumatay, and by Judge Ikuta except as to Part
II-A, dissented from the denial of rehearing en banc. In Part
II-A, Judge VanDyke wrote that the panel created inter- and
intra-circuit conflicts by eliminating the actual causation
requirement for “forced labor” claims under the TVPA. In
Part II-B, Judge VanDyke wrote that rehearing en banc also
was warranted because the panel transgressed the holding of
Wal-Mart Stores v. Dukes, 564 U.S. 338 (2011),
disregarding Fed. R. Civ. P. 23’s commonality requirement
by concluding that a handful of declarations from detainees
at only one of the defendant’s 24 facilities was significant
proof of the defendant’s nationwide policies and practices.
OWINO V. CORE CIVIC, INC. 5
COUNSEL
Nicholas D. Acedo (argued), Daniel P. Struck, Rachel Love,
Ashlee B. Hesman, and Jacob B. Lee, Struck Love
Bojanowski & Acedo PLC, Chandler, Arizona, for
Defendant-Appellant.
Eileen R. Ridley (argued) and Alan R. Ouellette, Foley &
Lardner LLP, San Francisco, California; Robert L. Teel,
Law Office of Robert L. Teel, Seattle, Washington; for
Plaintiffs-Appellees.
ORDER
The opinion filed June 3, 2022, Owino v. CoreCivic, Inc.,
36 F.4th 839 (9th Cir. 2022) is amended and superceded by
the opinion filed concurrently with this order.
The full court has been advised of the petition for
rehearing en banc. A judge of this Court requested a vote on
the petition for rehearing en banc. A majority of the non-
recused active judges did not vote to rehear the case en banc.
Fed. R. App. 35. The petition for panel rehearing and for
rehearing en banc is DENIED. No further petitions for panel
rehearing or rehearing en banc will be entertained.
6 OWINO V. CORECIVIC, INC.
OPINION
McKEOWN, Circuit Judge:
This appeal arises from a class action filed by individuals
who were incarcerated in private immigration detention
facilities owned and operated by a for-profit corporation,
CoreCivic, Inc. These individuals—detained solely due to
their immigration status and neither charged with, nor
convicted of, any crime—allege that the overseers of their
private detention facilities forced them to perform labor
against their will and without adequate compensation. Our
inquiry on appeal concerns only whether the district court
properly certified three classes of detainees. Considering the
significant deference we owe to the district court when
reviewing a class certification, as well as the district court’s
extensive and reasoned findings, we affirm the certification
of all three classes.
BACKGROUND
In 2017, Sylvester Owino (“Owino”) and Jonathan
Gomez (“Gomez”) (collectively “Owino”) brought a class
action suit against CoreCivic. Both men were previously
held in a civil immigration detention facility operated by
CoreCivic—Owino from 2005 to 2015, and Gomez from
2012 to 2013. They filed suit “on behalf of all civil
immigration detainees who were incarcerated and forced to
work by CoreCivic,” seeking declaratory and injunctive
relief and damages, among other remedies, for
“forcing/coercing detainees to clean, maintain, and operate
CoreCivic’s detention facilities in violation of both federal
and state human trafficking and labor laws.” Specifically,
Owino alleged violations of the Victims of Trafficking and
Violence Protection Act of 2000, 18 U.S.C. § 1589 et seq.
OWINO V. CORE CIVIC, INC. 7
(“TVPA”), California Trafficking Victims Protection Act,
Cal. Civ. Code § 52.5 (“CTVPA”), various provisions of the
California Labor Code, and other state laws.
Pursuant to 8 U.S.C. § 1231(g), U.S. Immigration and
Customs Enforcement (“ICE”) contracts with CoreCivic to
incarcerate detained immigrants in 24 facilities across 11
states. According to Owino, those incarcerated in these
facilities “are detained based solely on their immigration
status and have not been charged with a crime.” Because of
this, ICE states these detainees “shall not be required to
work, except to do personal housekeeping.” These
housekeeping duties are delineated in ICE’s Performance-
Based National Detention Standards (“Standards”): “1.
making their bunk beds daily; 2. stacking loose papers; 3.
keeping the floor free of debris and dividers free of clutter;
and 4. refraining from hanging/draping clothing, pictures,
keepsakes, or other objects from beds, overhead lighting
fixtures or other furniture.” Performance-Based National
Detention Standards 2011, at 406 (revised Dec. 2016),
https://www.ice.gov/doclib/detention-standards/2011/pbnds
2011r2016.pdf. The Standards also require facilities to
provide detainees with the “opportunity to participate in a
voluntary work program” (“Work Program”) for which they
must be compensated at least $1 per day. Id. at 406, 407.
Despite these guidelines, Owino contends that, “as a
matter of policy,” CoreCivic compelled him and detainees
across its facilities to work “as a virtually free labor force to
complete ‘essential’ work duties at their facilities,” including
such “foundational tasks” as kitchen and laundry services.
CoreCivic’s written policies require “all” detainees to
“maintain[] the common living area [i.e., not the bunk bed
area] in a clean and sanitary manner.” The policies further
require “[d]etainee/inmate workers” to carry out a “daily
8 OWINO V. CORECIVIC, INC.
cleaning routine,” to remove trash, sweep, mop, clean toilets,
clean sinks, clean showers, and clean furniture, and to
undertake “[a]ny other tasks assigned by staff in order to
maintain good sanitary conditions.” Yet, according to
Owino, CoreCivic generally paid ICE detainees either $1 per
day or nothing at all. Owino further contends that CoreCivic
paid ICE detainees between $.75 and $1.50 per day for work
that it “misclassified” as “volunteer,” thus failing to pay
wages that approximated the minimum hourly wage required
by California law.
On April 15, 2019, Owino filed a motion for class
certification, seeking to certify five classes:
1. California Labor Law Class: All ICE
detainees who (i) were detained at a CoreCivic
facility located in California between May 31, 2013,
and the present, and (ii) worked through CoreCivic’s
Voluntary Work Program during their period of
detention in California.
2. California Forced Labor Class: All ICE
detainees who (i) were detained at a CoreCivic
facility located in California between January 1,
2006, and the present, (ii) cleaned areas of the
facilities above and beyond the personal
housekeeping tasks enumerated in the Standards, and
(iii) performed such work under threat of discipline
irrespective of whether the work was paid or unpaid.
3. National Forced Labor Class: All ICE
detainees who (i) were detained at a CoreCivic
facility between December 23, 2008, and the present,
(ii) cleaned areas of the facilities above and beyond
the personal housekeeping tasks enumerated in the
Standards, and (iii) performed such work under
OWINO V. CORE CIVIC, INC. 9
threat of discipline irrespective of whether the work
was paid or unpaid.
4. California Basic Necessities Class: All ICE
detainees who (i) were detained at a CoreCivic
facility located in California between January 1,
2006, and the present, (ii) worked through
CoreCivic’s Work Program, and (iii) purchased basic
living necessities through CoreCivic’s commissary
during their period of detention in California.
5. National Basic Necessities Class: All ICE
detainees who (i) were detained at a CoreCivic
facility between December 23, 2008, and the present,
(ii) worked through CoreCivic’s Work Program, and
(iii) purchased basic living necessities through
CoreCivic’s commissary during their period of
detention.
A year later—following numerous filings, oral
argument, and supplemental briefing—the district court
certified three of the proposed five classes: (1) the California
Labor Law Class, (2) the California Forced Labor Class, and
(3) the National Forced Labor Class. In an extensive and
thoughtful order, the district court found the following:
1. California Labor Law Class: Owino and
Gomez “adequately have established that they were
never paid a minimum wage through the [Work
Program],” that they “never received wage
statements,” and that CoreCivic “failed to pay
compensation upon termination” and “imposed
unlawful terms and conditions of employment.”
There were sufficient “common, predominating
questions” to certify the class.
10 OWINO V. CORECIVIC, INC.
2. California Forced Labor Class: Owino and
Gomez “sufficiently have demonstrated” that
CoreCivic facilities in California “implemented
common sanitation and disciplinary policies that
together may have coerced detainees to clean areas
of [CoreCivic’s California] facilities beyond the
personal housekeeping tasks enumerated in the ICE
[Standards].”
3. National Forced Labor Class: Owino and
Gomez “sufficiently have demonstrated” the same
regarding CoreCivic facilities nationwide.
Due to the vulnerability of the class members and the
“risks, small recovery, and relatively high costs of
litigation,” the district court concluded that “class-wide
litigation is superior” because “no viable alternative method
of adjudication exists.”
ANALYSIS
We review the district court’s class certification for
“abuse of discretion.” B.K. ex rel. Tinsley v. Snyder, 922
F.3d 957, 965 (9th Cir. 2019). As we set out at length in
Snyder,
An error of law is a per se abuse of discretion.
Accordingly, we first review a class
certification determination for legal error
under a de novo standard, and if no legal error
occurred, we will proceed to review the
decision for abuse of discretion. A district
court applying the correct legal standard
abuses its discretion only if it (1) relies on an
improper factor, (2) omits a substantial
OWINO V. CORE CIVIC, INC. 11
factor, or (3) commits a clear error of
judgment in weighing the correct mix of
factors. Additionally, we review the district
court’s findings of fact under the clearly
erroneous standard, meaning we will reverse
them only if they are (1) illogical, (2)
implausible, or (3) without support in
inferences that may be drawn from the
record.
Id. at 965–66 (quoting Sali v. Corona Reg’l Med. Ctr., 909
F.3d 996, 1002 (9th Cir. 2018)). Notably, in “reviewing a
grant of class certification, we accord the district court
noticeably more deference than when we review a denial of
class certification.” Wolin v. Jaguar Land Rover N. Am.,
LLC, 617 F.3d 1168, 1171 (9th Cir. 2010).
In assessing whether to certify a class, the district court
determines whether the requirements of Rule 23 are met.
Rule 23 provides:
One or more members of a class may sue or
be sued as representative parties on behalf of
all members only if: (1) the class is so
numerous that joinder of all members is
impracticable [“numerosity”]; (2) there are
questions of law or fact common to the class
[“commonality”]; (3) the claims or defenses
of the representative parties are typical of the
claims or defenses of the class [“typicality”];
and (4) the representative parties will fairly
and adequately protect the interests of the
class [“adequacy”].
Fed. R. Civ. P. 23(a). Additionally, a proposed class must
12 OWINO V. CORECIVIC, INC.
satisfy one of the subdivisions of Rule 23(b). Comcast Corp.
v. Behrend, 569 U.S. 27, 33 (2013). Owino seeks to proceed
under Rule 23(b)(3), which requires “the court find[] that the
[common questions] predominate over any questions
affecting only individual members [‘predominance’], and
that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy
[‘superiority’].” Fed R. Civ. P. 23(b)(3). The district court
made both findings.
CoreCivic brings three challenges to each of the three
certified classes. We review each of these challenges in turn.
I. CALIFORNIA FORCED LABOR CLASS
A. Class-wide Policy of Forced Labor
We first consider CoreCivic’s assertion that Owino
failed to present “[s]ignificant proof” of a class-wide policy
of forced labor, thus defeating commonality. Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 353 (2011). To support
the California Forced Labor class, Owino provided the
declarations of four detainees, all from one facility, but this
was not the extent or the focus of Owino’s “significant
proof,” nor was it the focus of the district court’s decision.
Rather, Owino centered his argument, and the district court
centered its holding, on the text of CoreCivic’s corporate
policies. The sanitation policy requires detainees to remove
trash, wash windows, sweep and mop, “thoroughly” scrub
toilet bowls, sinks, and showers, and undertake sundry other
cleaning responsibilities across the facility. On their face,
these policies appear to go beyond those minimal tidying
responsibilities laid out in the ICE Standards. The discipline
policy further makes clear that detainees are subject to a
range of punishments, including disciplinary segregation,
for refusal to “clean assigned living area” or “obey a staff
OWINO V. CORE CIVIC, INC. 13
member/officer’s order.”
The persuasive weight of the text of these policies is
augmented by the statements of ICE detainees themselves,
who declared that they were in fact required to clean
common areas—without payment and under threat of
punishment—in line with the policies. Further, one of
CoreCivic’s own senior managers testified that CoreCivic
facilities do not have the ability to opt out of these company-
wide, “standard policies.”
Commonality is necessarily established where there is a
class-wide policy to which all class members are subjected.
Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014). And
while “the mere existence of a facially defective written
policy—without any evidence that it was implemented in an
unlawful manner—does not constitute ‘[s]ignificant proof’
that a class of employees were [sic] subject to an unlawful
practice,” Davidson v. O’Reilly Auto Enters., LLC, 968 F.3d
955, 968 (9th Cir. 2020) (internal citation omitted), Owino
relied on the written policies as well as the testimony of
former ICE detainees and CoreCivic’s own manager.
Although the company “may wish to distance itself from [its
employee’s] statements,” here the “admissions were
material and [are] properly before us.” Abdullah v. U.S. Sec.
Assocs., 731 F.3d 952, 966 (9th Cir. 2013).
In view of the highly deferential abuse of discretion
standard and the full scope of evidence in the record, we
reject CoreCivic’s claim that Owino failed to provide
“significant proof” of the class-wide policy necessary to
satisfy the commonality requirement.
B. Predominance of Common Questions
We next consider CoreCivic’s claim that Owino failed to
14 OWINO V. CORECIVIC, INC.
establish that common questions predominate over
individual ones, thus defeating predominance. The
predominance inquiry tests “whether proposed classes are
sufficiently cohesive to warrant adjudication by
representation.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.
442, 453 (2016) (quoting Amchem Products, Inc. v. Windsor,
521 U.S. 591, 623 (1997)). Here, they are.
As the district court noted, the California Forced Labor
class members “share a large number of common attributes,
including that they are immigrants who are or were
involuntarily detained in [CoreCivic’s] facilities and
subjected to common sanitation and disciplinary policies.”
The claims of these class members all depend on common
questions of law and fact—whether CoreCivic utilized
threats of discipline to compel detainees to clean its
California facilities in violation of state and federal human
trafficking statutes. This is a quintessential “common
question” as defined by the Supreme Court: “the same
evidence will suffice for each member to make a prima facie
showing [or] the issue is susceptible to generalized, class-
wide proof.” Tyson Foods, 577 U.S. at 453 (citation
omitted).
In other words, the question is appropriate for class-wide
resolution because either CoreCivic’s company-wide
policies and practices violated the law and the rights of the
class members, or they didn’t. See Parsons, 754 F.3d at 678(holding that the “policies and practices to which all
members of the class are subjected . . . are the ‘glue’ that
holds together the putative class . . . either each of the
policies and practices is unlawful as to every inmate or it is
not”); see also Gonzalez v. U.S. Immigr. & Customs Enf’t,
975 F.3d 788, 808 (9th Cir. 2020).
OWINO V. CORE CIVIC, INC. 15
CoreCivic argues against predominance largely by
attempting to reframe the inquiry, asserting that the district
court should have asked whether each class member actually
has a viable California TVPA claim. However, this is not
the applicable test. In Tyson Foods, the Supreme Court
instructs that
[t]he predominance inquiry asks whether the
common, aggregation-enabling, issues in the
case are more prevalent or important than
the non-common, aggregation-defeating,
individual issues. When one or more of the
central issues in the action are common to
the class and can be said to predominate, the
action may be considered proper under Rule
23(b)(3) even though other important
matters will have to be tried separately, such
as damages or some affirmative defenses
peculiar to some individual class members.
577 U.S. at 453 (internal citations and quotation marks
omitted); see also Olean Wholesale Grocery Coop., Inc. v.
Bumble Bee Foods, 31 F.4th 651, 681–82 (9th Cir. 2022) (en
banc).
C. Statute of Limitations
Finally, we consider CoreCivic’s argument that the
district court should have narrowed the proposed California
Forced Labor class based on the statute of limitations. While
Owino seeks to include all ICE detainees held at a CoreCivic
facility in California between January 1, 2006, and the
present, CoreCivic argues that because the California TVPA
has a seven-year statute of limitations, no detainee who was
released before May 31, 2010, can bring a claim. See Cal.
16 OWINO V. CORECIVIC, INC.
Civ. Code § 52.5(c). The district court ruled that such a
finding was premature at the class certification stage: “If
discovery indicates that the class period should be limited,
the Court will entertain a motion to that effect; however, at
this stage in the litigation and on the record before it, the
Court is not inclined to narrow the class period.”
We agree with the district court that narrowing the class
based on statute of limitations is not required at the
certification stage. Along with our sister circuits, we have
held this in the context of the predominance inquiry. See,
e.g., Williams v. Sinclair, 529 F.2d 1383, 1388 (9th Cir.
1975) (“The existence of a statute of limitations issue does
not compel a finding that individual issues predominate over
common ones.”); see also In re Monumental Life Ins. Co.,
365 F.3d 408, 420–21 (5th Cir. 2004); Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.
2000). We now clarify that this principle is applicable to
certification more broadly. After all, “[e]ven after a
certification order is entered, the judge remains free to
modify it in the light of subsequent developments in the
litigation.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,
160 (1982). CoreCivic cites no case law to the contrary. We
therefore hold that the district court did not abuse its
discretion in declining to narrow the California Forced Labor
class.
II. NATIONAL FORCED LABOR CLASS
We can dispense with CoreCivic’s first two challenges
to the National Forced Labor class easily, as these challenges
are virtually identical to those directed at the California
Forced Labor class. For the same reasons discussed above,
the district court did not abuse its discretion in concluding
that Owino presented significant proof of a class-wide policy
OWINO V. CORE CIVIC, INC. 17
of forced labor. Likewise, the district court did not abuse its
discretion in concluding that common questions
predominate over individual ones. CoreCivic’s argument
that the TVPA necessitates a subjective, individualized
inquiry fails due to contrary language in the statute, see, e.g.,
18 U.S.C. § 1589(c)(2) (defining “serious harm” as that
which would compel a “reasonable person” to perform or
continue performing labor to avoid incurring such harm), as
well as the broader predominance test prescribed by
precedent. Tyson Foods, 577 U.S. at 453.
The statute’s causal element—prohibiting the
obtainment of labor “by means of” one of the statutorily
enumerated harms, see 18 U.S.C. § 1589(a)—may similarly
be inferred by class-wide evidence. See Menocal v. GEO
Grp., Inc., 882 F.3d 905, 918–20 (10th Cir. 2018); Rosas v.
Sarbanand Farms, LLC, 329 F.R.D. 671, 689 (W.D. Wash.
2018) (“An allegation that the defendant engaged in a
common scheme or practice to coerce labor from putative
class members may be sufficient to establish that the class’s
claim is susceptible to class-wide resolution.”). While class-
wide causation depends on the context, see Poulos v.
Caesars World, Inc., 379 F.3d 654, 665–66 (9th Cir. 2004)
(requiring individualized showing of causation in a “narrow
and case-specific” RICO-claim case because “gambling is
not a context in which we can assume that potential class
members are always similarly situated”), in Walker v. Life
Insurance Co. of the Southwest, we recognized that reliance
can be inferred on a class-wide basis. 953 F.3d 624, 630–31
(9th Cir. 2020). Here, Owino offered as evidence a written
discipline policy stating that detainees will be punished if
they fail to clean or obey staff orders. The district court did
not abuse its discretion in concluding that a factfinder could
reasonably draw a class-wide causation inference from this
18 OWINO V. CORECIVIC, INC.
uniform policy.
However, CoreCivic’s appeal with respect to personal
jurisdiction is not resolved by what we wrote, above, with
respect to the National Forced Labor class. See Bristol-
Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct. 1773
(2017). The district court ruled that CoreCivic had waived
its personal jurisdiction challenge with respect to the claim
of the non-California-facility class members, because it did
not raise such a defense in its first responsive pleadings
(which CoreCivic filed after the Supreme Court decided
Bristol-Myers Squibb). After the district court’s ruling and
after CoreCivic filed its opening brief in this appeal, the
Ninth Circuit squarely addressed this issue: prior to class
certification, a defendant does “not have ‘available’ a Rule
12(b)(2) personal jurisdiction defense to the claims of
unnamed putative class members who were not yet parties to
the case.” Moser v. Benefytt, Inc., 8 F.4th 872, 877 (9th Cir.
2021).
Although Owino maintains that Moser was wrongly
decided, we have no authority to ignore circuit precedent.
See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc). Owino’s challenge to the merit of CoreCivic’s
personal jurisdiction defense is an issue for the district court
to resolve. See Moser, 8 F.4th at 879.
We decline to vacate the certification of the National
Forced Labor class, but we hold that CoreCivic retains its
personal jurisdiction defense and remand the personal
jurisdiction question to the district court for consideration at
the appropriate time.
OWINO V. CORE CIVIC, INC. 19
III. CALIFORNIA LABOR LAW CLASS
A. Damages Capable of Class-wide Measurement
We first consider CoreCivic’s arguments that the
members of the California Labor Law class have not
presented “a fully formed damages model” and thus cannot
be certified. Owino claims that CoreCivic misclassified the
detainees participating in the Work Program as “volunteers”
rather than “employees” and thus failed to pay them the
minimum wage required in California for “employees,” in
violation of California wage and hour law. The district court
certified the class, holding that Owino had met the
“evidentiary” burden of “present[ing] proof that damages are
capable of being measured on a class-wide basis.”
We agree with the district court that Owino did not need
to present a fully formed damages model “when discovery
was not yet complete and pertinent records may have been
still within Defendant’s control.” Rather, “plaintiffs must
show that ‘damages are capable of measurement on a
classwide basis,’ in the sense that the whole class suffered
damages traceable to the same injurious course of conduct
underlying the plaintiffs’ legal theory.” Just Film, Inc. v.
Buono, 847 F.3d 1108, 1120 (9th Cir. 2017) (quoting
Comcast, 569 U.S. at 34). In other words, “plaintiffs must
be able to show that their damages stemmed from the
defendant’s actions that created the legal liability.” Vaquero
v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1154 (9th
Cir. 2016) (citation omitted).
There is a clear line of causation between the alleged
misclassification of detainee employees as “volunteers” and
the deprivation of earnings they may have suffered as a
consequence of the violation of California wage and hour
laws. See id. at 1155 (holding that, “[i]n a wage and hour
20 OWINO V. CORECIVIC, INC.
case . . . the employer-defendant’s actions necessarily
caused the class members’ injury”). According to evidence
from a CoreCivic manager, spreadsheets of wages paid, and
CoreCivic’s corporate policy itself, ICE detainees
participated in the Work Program across CoreCivic’s
facilities, for which they were almost never paid more than
$1.50 per day. If CoreCivic did indeed misclassify these
participants as “volunteers” (e.g., because the detainees
should have been considered “employees”), CoreCivic
would necessarily have failed to pay the minimum hourly
wage required by California law. Thus, any damages that
the class members are owed necessarily “stemmed from
[CoreCivic’s] actions.” Id.Owino presented sufficient evidence to show that
damages are capable of measurement on a class-wide basis.
This evidence includes documentation of “typical” shift
lengths, the days worked by ICE detainees, the wages paid,
and the job assignments. Additional testimony and
CoreCivic records can establish details about which
detainees participated in the Work Program, see Ridgeway v.
Walmart Inc., 946 F.3d 1066, 1087 (9th Cir. 2020), and as
the Supreme Court emphasized in Tyson Foods, sufficiently
reliable representative or statistical evidence can be used to
establish the hours that a class of employees had worked.
577 U.S. at 459.
B. Narrowing the Class
In seeking certification of the California Labor Law
class, Owino alleged that detainees’ participation in the
Program violated a variety of state labor law provisions, as
well as California’s Unfair Competition Law (“UCL”), Cal.
Bus. & Prof. Code § 17200, et seq. CoreCivic notes,
correctly: “Other than the California UCL claim [which has
OWINO V. CORE CIVIC, INC. 21
a four-year statute of limitations, id. § 17208], all other state
law claims have a one-, two-, or three-year statute of
limitations.” CoreCivic thus argues that Owino is barred
from representing this class at all, because his last day in the
Work Program was May 22, 2013, which is more than four
years before he filed the May 31, 2017, complaint. (Owino
disputes this date, claiming he worked until his release on
March 9, 2015.) CoreCivic further argues that Gomez is
time-barred from pursuing non-UCL claims, because his last
day in the Work Program was September 7, 2013.
The district court held that, for the purposes of the
certification motion, even if the plaintiffs’ claims under the
California Labor Code are time-barred, they could still
recover for the majority of the alleged violations under the
UCL because the UCL prohibits unfair competition, defined
as “any unlawful, unfair or fraudulent business act or
practice,” Cal. Bus. & Prof. Code § 17200, and naturally this
includes such violations of California’s wage and hour law.
Under this characterization, the class period for all claims
seeking remedies under the UCL begins May 31, 2013; the
period for waiting-time and failure-to-pay claims begins
May 31, 2014; and the period for claims as to the alleged
failure to provide wage statements begins May 31, 2016 (for
remedies pursuant to Cal. Code Civ. Proc. § 340), or May
31, 2014 (for remedies pursuant to Cal. Code Civ. Proc. §
338).
As to the named plaintiffs, the district court ruled that
neither Owino nor Gomez is typical of the members of the
California Labor Law class seeking penalties under
California Labor Code § 226 (which requires employers to
provide wage statements to employees), and that Gomez is
not typical of members of the California Labor Law Class
seeking waiting-time penalties under California Labor Code
22 OWINO V. CORECIVIC, INC.
§ 203. Nonetheless, the court found that Owino is part of the
California Labor Law class for the wage claims, for failure
to pay compensation upon termination, and for waiting time
penalties and actual damages for the failure to provide wage
statements, while Gomez is part of the California Labor Law
class for the wage claims. Due to CoreCivic’s “belated
assertion of . . . factual disputes concerning whether Mr.
Owino worked during the Class Period for the California
Labor Law Class,” the district court stated it was
“disinclined to resolve this issue at the class certification
stage . . . particularly given that Mr. Gomez remains a viable
class representative for the majority of the claims of the
California Labor Law Class.”
Because plaintiffs can recover for almost all of the
alleged violations under the UCL, the district court properly
rejected CoreCivic’s argument against certification as
predicated on “a distinction without a difference.” The
district court appropriately exercised its discretion by
declining to resolve a factual matter that CoreCivic raised
for the first time in its post-hearing supplemental brief, and
which the district court concluded was not dispositive of
certification.
We agree with the district court that Owino and Gomez
are typical of the class they are seeking to represent and their
allegations, if true, fit within the statutes they invoke.
Although they may run into statute of limitations issues—
some disputed and unproven—narrowing the class based on
statute of limitations is not required at the certification stage.
Cf. Int’l Woodworkers of Am. v. Chesapeake Bay Plywood
Corp., 659 F.2d 1259, 1270 (4th Cir. 1981) (“Courts passing
upon motions for class certification have generally refused
to consider the impact of such affirmative defenses as the
statute of limitations on the potential representative’s
OWINO V. CORE CIVIC, INC. 23
case.”).
C. Failure-to-pay and Waiting-time Claim
Finally, CoreCivic argues that because Owino and
Gomez “did not reference their failure-to-pay/waiting-time
claim ([Cal. Labor Code] §§ 201–203)” in their motion for
class certification, the district court should not have certified
that claim as one common to the California Labor Law class.
Because the claims are affirmatively interwoven in Owino’s
pleadings, the district court did not abuse its discretion in
certifying this claim.
To begin, the complaint included California Labor Code
§§ 201–03 among the causes of action for the California
Labor Law class:
Plaintiffs and Class Members incorporate the
above allegations by reference.
California Labor Code §§ 201 and 202
require CoreCivic to pay all compensation
due and owing to Plaintiffs and Class
Members immediately upon discharge or
within seventy-two hours of their termination
of employment. Cal. Labor Code § 203provides that if an employer willfully fails to
pay compensation promptly upon discharge
or resignation, as required by §§ 201 and 202,
then the employer is liable for such “waiting
time” penalties in the form of continued
compensation up to thirty workdays.
CoreCivic willfully failed to pay Plaintiffs
and Class Members who are no longer
employed by CoreCivic compensation due
24 OWINO V. CORECIVIC, INC.
upon termination as required by Cal. Labor
Code §§ 201 and 202. As a result, CoreCivic
is liable to Plaintiffs and former employee
Class Members waiting time penalties
provided under Cal. Labor Code § 203, plus
reasonable attorneys’ fees and costs of suit.
Owino asserted that CoreCivic violated a dozen
provisions of the California Labor Code with respect to the
members of the California Labor Law class. The motion for
class certification then stated, “Plaintiffs’ claims on behalf
of the CA Labor Law Class for violations of the California
Labor Code . . . all turn on a common legal question: whether
ICE detainees that worked through the [Work Program] at
CoreCivic’s facilities in California are employees of
CoreCivic under California law . . . .” Owino then discussed
this question in depth.
CoreCivic has cited no precedent to suggest that Owino
must specifically list the citation of each of the dozen
provisions of the California Labor Code in the motion for
class certification. Such an approach would exalt form over
substance and ignore the fair notice Owino provided to
CoreCivic throughout the certification proceeding. Rather,
because Owino outlined these provisions substantively in the
complaint, stated that “all” of the alleged violations of the
Labor Code turn on a common question, and discussed the
common question at length, Owino sufficiently referenced
this matter before the district court.
OWINO V. CORE CIVIC, INC. 25
Conclusion
We affirm the district court’s certification of all three
classes. We hold that CoreCivic retains its personal
jurisdiction defense and remand the personal jurisdiction
question to the district court for consideration at the
appropriate juncture.
AFFIRMED.
VANDYKE, Circuit Judge, with whom Judges
CALLAHAN, BENNETT, R. NELSON, and BUMATAY
join, and with whom Judge IKUTA joins except as to Part
II-A, dissenting from denial of rehearing en banc:
In affirming certification of the nationwide class in this
case, the panel committed two errors that merited en banc
review. First, the panel created inter- and intra-circuit
conflicts by eliminating the actual causation requirement for
“forced labor” claims under the Victims of Trafficking and
Violence Protection Act of 2000 (TVPA). Second, the panel
transgressed the holding of Wal-Mart Stores v. Dukes, 564
U.S. 338 (2011), disregarding Rule 23’s commonality
requirement by concluding that a handful of declarations
from detainees at only one of the defendant’s 24 facilities
was “significant proof” of the defendant’s nationwide
“policies and practices.” In Dukes, the Supreme Court
instructed that expert testimony, statistical evidence, and
testimony from more than 100 individuals spread across the
country were insufficient proof of the nationwide policy
asserted in that case. Here, the plaintiffs did not present half
26 OWINO V. CORECIVIC, INC.
as much evidence as was provided in Dukes, yet the panel
improperly found “significant proof” of a nationwide policy.
We should have taken the opportunity to correct this
decision. Uncorrected, it will have sweeping implications
for all civil TVPA lawsuits, class actions or otherwise,
sowing confusion over whether actual causation is a required
showing. It will also doubtless become the new rallying
point for class counsel seeking to avoid the minimum
commonality required by binding Supreme Court precedent.
I respectfully dissent from the denial of en banc rehearing.
I.
The U.S. government contracts with the defendant in this
case, CoreCivic, Inc., to hold immigration detainees in 24
facilities across 11 states. Government regulations require
immigration detainees to perform personal housekeeping
tasks, but prohibit CoreCivic from requiring them to clean
areas beyond “their immediate living areas.” Performance-
Based National Detention Standards 2011 § 5.8(II), (V)(C).
This case is a class challenge by two former detainees
claiming that they and other detainees across all 24 facilities
were forced to perform cleaning tasks beyond the personal
housekeeping tasks allowed by those standards. See Owino
v. CoreCivic, Inc., 36 F.4th 839, 842 (9th Cir. 2022).
The named plaintiffs moved to certify a nationwide class
consisting of all CoreCivic detainees detained after
December 23, 2008, who were required under threat of
discipline to clean areas of CoreCivic facilities beyond their
cells. See id. at 843. To succeed on their motion, they
needed to prove that “questions of law or fact common to the
class” existed and that such common questions
“predominate[d] over any questions affecting only
individual members.” Fed. R. Civ. P. 23(a)(2), (b)(3); see
OWINO V. CORE CIVIC, INC. 27
also Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S.
258, 275 (2014) (requiring the plaintiffs to prove, “not
simply plead,” that “their proposed class satisfies each
requirement of Rule 23”). The named plaintiffs argued that
a common question stemmed from CoreCivic’s policy
requiring all its detainees to clean areas beyond their cells
under threat of discipline and that this question
predominated over any individualized questions. Because
they sought to prove a common question through a
nationwide policy, the named plaintiffs needed to provide
“significant proof” that this policy existed. Dukes, 564 U.S.
at 353 (citation omitted). As evidence of CoreCivic’s
purported nationwide policy requiring all detainees to clean
areas beyond their cells, the named plaintiffs proffered
CoreCivic’s written “Sanitation” and “Disciplinary”
policies, plus the declarations of four detainees at one of
CoreCivic’s 24 detention facilities.
The district court considered whether the written policies
unambiguously supported CoreCivic’s interpretation and
then rejected it because it “is not clear from the face of the
policies” that the policies “do[] not require detainees to clean
the common area,” (emphasis added). The court likewise
found the policies ambiguous because “[t]here is no
indication from the face of the policies that” only the
detainees who participated in the voluntary work program
(“VWP”) were required to clean. The district court’s only
discussion about who was required to clean under
CoreCivic’s written policies emphasized their ambiguity.
But because the named plaintiffs also offered the four
detainee declarations, the court concluded that there was
“significant proof” that CoreCivic had “implemented
common sanitation and discipline policies,” (emphasis
added), across its 24 facilities. And the court concluded that
28 OWINO V. CORECIVIC, INC.
because the Disciplinary Policy “could reasonably be
understood to have subjected detainees to discipline for
failure to comply with the uniform sanitation policy,”
CoreCivic “may have coerced detainees” into cleaning.
The district court also concluded that common questions
about CoreCivic’s class-wide “policy and practice”
predominated over individualized questions. On this point,
CoreCivic argued that questions about whether CoreCivic’s
conduct caused the class members individually to choose to
labor for CoreCivic would predominate over any common
question. The district court disagreed, concluding that
liability under the TVPA attaches even if CoreCivic’s
actions did not cause the detainees to perform the labor. The
court ruled instead that the TVPA requires plaintiffs to show
only an “objectively, sufficiently serious threat of harm.”
Alternatively, the district court reasoned that, even assuming
the TVPA requires a showing of causation, whether each
individual class member felt coerced by CoreCivic’s policies
could be decided on a class basis by inferring whether a
reasonable person would have felt coerced.
On appeal, our court affirmed certification. See Owino,
36 F.4th at 850. In doing so, the panel rejected CoreCivic’s
argument that questions about individual causation
precluded predominance, never addressing either of our
court’s precedents holding that a showing of causation is
required under the TVPA. Compare id. at 847, with
Martinez-Rodriguez v. Giles, 31 F.4th 1139, 1150 (9th Cir.
2022), and Headley v. Church of Scientology Int’l, 687 F.3d
1173, 1179 (9th Cir. 2012). Rather, the panel held that no
“subjective, individualized inquiry” into why each class
member labored was necessary because the ostensibly
“contrary language” in the TVPA requires only that a
defendant’s threats be objectively serious. See id. (citing 18
OWINO V. CORE CIVIC, INC. 29
U.S.C. § 1589(c)(2) (requiring an objectively “serious
harm”)). Although cursory in its analysis, the necessary
import of the panel rejecting CoreCivic’s argument—by
exclusively citing the TVPA’s objectively serious harm
requirement—is that the plaintiffs did not need to show that
CoreCivic’s actions caused them to labor.
The panel also concluded that the named plaintiffs
proved the existence of a common question, locating that
common question in “CoreCivic’s company-wide policies
and practices.” Owino, 36 F.4th at 846. The panel relied on
three things evincing the supposed nationwide common
“policies and practices”: (1) CoreCivic’s written policies;
(2) CoreCivic’s employees’ declarations interpreting those
written policies; and (3) declarations by four former
detainees that described practices they experienced and
observed at a single facility. See id. at 845.
As to the first two types of evidence—CoreCivic’s
written policies and its interpretations thereof—the panel
provided little analysis, briefly addressing them in two short
paragraphs. See id. The panel was nonetheless clear that it
relied decisively on its conclusion that CoreCivic’s
nationwide written policy “requires detainees” to perform a
long list of cleaning duties. Id. The panel nowhere
acknowledged, however, that its list was taken from
CoreCivic’s policy applicable only to “detainee[] workers,”
(emphasis added), which CoreCivic employees consistently
explained meant not all detainees, but rather a subset of
detainees who had affirmatively volunteered to participate in
its paid VWP. Ignoring the district court’s conclusion that
the written policies are ambiguous, the panel held that the
written policies required all detainees to clean and that, when
combined with the four detainee declarations, they
30 OWINO V. CORECIVIC, INC.
constituted “significant proof” of a nationwide policy
consistent with the plaintiffs’ allegations. See id.
Accordingly, the panel affirmed certification of the
nationwide class. Following CoreCivic’s petition for
rehearing, the panel amended its opinion in an attempt to
clarify its rationale on the TVPA’s causation requirement.
Unfortunately, as discussed below, the amendment does not
fix the panel’s errors.
II.
This case deserved en banc review for two independent
reasons: (1) it creates inter- and intra-circuit conflict by
eliminating the TVPA’s actual causation requirement for
civil forced labor claims; and (2) it holds that much less
evidence of a nationwide policy than was present in Dukes
is nonetheless “significant proof” of a nationwide policy,
and therefore sufficient to certify a class.
A.
The TVPA prohibits a person from obtaining labor from
a victim by improper means. See 18 U.S.C. § 1589(a). A
defendant who obtains forced labor may be held civilly
liable. See id.; 18 U.S.C. § 1595(a). 1 But according to the
panel decision in this case, the TVPA, in permitting
“victim[s]” of “forced labor” to “recover damages,” id., is
indifferent as to whether anyone actually forced someone
else to labor. See Owino, 36 F.4th at 847. Instead, a plaintiff
may satisfy the TVPA’s causation requirement by showing
that an abstract reasonable person would have labored
because of the defendant’s conduct. Only by deeming actual
1
A defendant who obtains or attempts to obtain forced labor may also
be criminally punished. See 18 U.S.C. §§ 1589(a), 1594(a).
OWINO V. CORE CIVIC, INC. 31
causation unnecessary was the panel able to conclude that
individualized causation inquiries would not predominate
over common questions in the named plaintiffs’ class action.
See id.The panel’s causation conclusion is doubly wrong. First,
it is wrong because it creates inter- and intra-circuit conflict
by disregarding both our binding circuit precedent, see, e.g.,
Martinez-Rodriguez, 31 F.4th at 1156 (requiring that the
plaintiffs provide evidence that the defendant’s conduct
“proximately caused” the plaintiffs to labor), and the
wisdom of our sister circuits’ decisions that likewise require
a showing of actual causation to prevail in a TVPA forced
labor claim, see, e.g., United States v. Zhong, 26 F.4th 536,
560 (2d Cir. 2022) (recognizing that unless the prosecution
proves a defendant’s actions “did, in fact, compel
the … workers to remain working for [the defendant’s
company] when they otherwise would have left,” the
defendant “could not have ‘provide[d] or obtain[ed]’ their
labor th[r]ough these actions or threats” (quoting
§ 1589(a))); Menocal v. GEO Group, Inc., 882 F.3d 905, 918
(10th Cir. 2018) (“[P]laintiffs must prove that an unlawful
means of coercion caused them to render labor.”). 2
2
Similar to the panel’s amended opinion, the Tenth Circuit in Menocal
permitted causation to be inferred class-wide. See 882 F.3d at 918. But
the Tenth Circuit still required actual causation by allowing the
defendant to introduce evidence that individual class members were not
coerced by the defendant’s class-wide conduct. See id. at 921. Here, the
panel acknowledged no room for a defendant to introduce evidence that
individual class members did not labor because of its class-wide conduct,
implying that the panel established a conclusive presumption that
causation is satisfied for a TVPA claim through evidence of class-wide
conduct that would cause a reasonable person to labor. No circuit has
departed so far from the TVPA’s actual causation requirement.
32 OWINO V. CORECIVIC, INC.
Second, even aside from the panel ignoring binding
precedent, this case merited en banc review because the text
of the TVPA clearly requires causation for a forced labor
claim—which is why, until this case, our circuit and other
circuits have required it. See 18 U.S.C. § 1589(a)(2), (4).
The panel confused and conflated the TVPA’s requirement
that harms or threatened harms be objectively serious with
the TVPA’s separate requirement that such harms actually
cause a victim to labor or provide services. Actual causation
requires proof that the specific victim would not have
labored but for the threats or harms. The TVPA requires
both objectively serious harms and actual causation. The
panel’s error in eliminating the TVPA’s causation
requirement led the panel to wrongly affirm class
certification. Because each class member here must
individually prove causation, the panel erred in concluding
that common questions predominated. See Poulos v.
Caesars World, Inc., 379 F.3d 654, 668 (9th Cir. 2004).
* * *
The panel’s elimination of the TVPA’s causation
requirement runs face-first into at least two of our
precedents, as well as the decisions of our sister circuits that
have addressed this issue. In our court’s 2012 Headley
decision, for example, lack of individualized causation is
precisely what drove our court to affirm summary judgment
in favor of the defendant. 687 F.3d at 1173. The plaintiffs
in Headley argued that they were coerced into laboring by
the defendant organization inflicting harm upon them, but
our court affirmed summary judgment against the plaintiffs
because the “record does not suggest that the defendant[]
obtained the [plaintiffs’] labor ‘by means of’ those[harms].”
Id. at 1180. The court instead concluded that “the record
shows that the adverse consequences cited by the [plaintiffs]
OWINO V. CORE CIVIC, INC. 33
are overwhelmingly not of the type that caused them to
continue their work and to remain with the [organization].”
Id. (emphasis added). And only months before the panel
issued its decision in this case, our court again affirmed that
a plaintiff can succeed in a forced labor claim only if he
shows that the defendant’s unlawful conduct “caused the
[p]laintiff to provide the labor that [the defendant] obtained.”
Martinez-Rodriguez, 31 F.4th at 1150 (emphasis in original).
In holding that the named plaintiffs need not show that
the defendant’s conduct caused them to labor before stating
a forced labor claim, the panel advanced a novel
interpretation of the TVPA’s prohibition on forced labor that
no federal circuit had previously adopted: holding that a
defendant may be civilly liable for forced labor when its
conduct did not cause the plaintiff to labor. Three other
circuits—five, if we count unpublished decisions—have
either explained that a defendant’s conduct must actually
cause the victim to labor or relied on such causation to
uphold a criminal conviction. See, e.g., Zhong, 26 F.4th at
560 (2d Cir. 2022); United States v. Toure, 965 F.3d 393,
401–02 (5th Cir. 2020) (affirming a forced labor conviction
as supported by sufficient evidence, in part, because the
defendants’ “conduct caused [the victim] to remain with the
defendants because [the victim] faced threats of serious
harm, or reasonably believed she would face serious harm,
if she did not provide them with her labor and services”);
Menocal, 882 F.3d at 918 (10th Cir. 2018); see also United
States v. Afolabi, 508 F. App’x 111, 119 (3d Cir. 2013)
(unpublished) (explaining that even if the “victims were not
actually intimidated” by certain abuses, the victims’
testimony that they labored because of the defendant’s other
illegal and improper conduct “was enough for a jury to find
that the Government had satisfied its burden”); Roman v.
34 OWINO V. CORECIVIC, INC.
Tyco Simplex Grinnell, 732 F. App’x 813, 817 (11th Cir.
2018) (per curiam) (affirming in an unpublished opinion the
district court’s dismissal of a complaint because the plaintiff
failed to “explain how [the defendant’s] threats led to his
forced labor” (citing Headley, 687 F.3d at 1179)). 3
There is a good reason that all the circuits to address the
question (we and five others) have uniformly concluded that
the TVPA requires actual causation for forced labor claims:
the plain text of the TVPA permits civil liability for “forced
labor” only when a person obtains that labor “by means of”
certain improper conduct, such as “by means of serious harm
or threats of serious harm to that person or another
person … [or] by means of any scheme, plan, or pattern
intended to cause the person to believe that, if that person
did not perform such labor or services, that person or another
person would suffer serious harm or physical restraint.” 18
U.S.C. § 1589(a)(2), (4) (emphasis added).
The “by means of” phrase that the TVPA invokes is well-
recognized as requiring a causal relationship. See, e.g.,
Martinez-Rodriguez, 31 F.4th at 1155 (“[T]he phrase ‘by
means of’ refers to familiar principles of causation and
requires a proximate causal link ….”); Sanders v. John
Nuveen & Co., Inc., 619 F.2d 1222, 1225 (7th Cir. 1980)
(“[T]he ‘by means of’ language in the statute requires some
causal connection ….”); Jackson v. Oppenheim, 533 F.2d
826, 830 (2d Cir. 1976) (explaining that a decision is
“effected ‘by means of’” an action if that action had “some
3
Although some of these decisions arose in a criminal context, the
convictions were for forced labor and the courts’ reasoning would apply
equally to a civil claim for forced labor.
OWINO V. CORE CIVIC, INC. 35
causal relationship”—even if not a “decisive effect”—“to
that decision”).
In rejecting “CoreCivic’s argument that the TVPA
necessitates a subjective, individualized inquiry” into
causation, the panel ignored the TVPA’s “by means of”
language and instead cited the TVPA’s provision defining
“serious harm” as an objectively serious harm. Owino, 36
F.4th at 847 (citing 18 U.S.C. § 1589(c)(2)). The panel was
right that the particular provision it cited does not itself
require actual causation. But the existence of the TVPA’s
requirement that harms and threatened harms be objectively
serious does not somehow nullify the TVPA’s separate
requirement that a defendant obtain labor by means of such
serious harm or threatened harm—the TVPA’s causation
requirement. In sum, a plaintiff who labored because a
defendant threatened harm that would not cause a reasonable
person to labor has no forced labor claim because he cannot
show an objectively serious threat of harm. And likewise, a
plaintiff who labored for a reason wholly unrelated to the
defendant’s harms or threatened harms has no claim—even
if those harms or threatened harms were objectively
serious—because he cannot show the defendant obtained the
plaintiff’s labor by means of those threats. The panel was
wrong to conclude that plaintiffs in this latter category—
plaintiffs who didn’t labor because of the defendant’s
conduct—can succeed in bringing a forced labor claim.
The panel’s belated attempt to address this problem by
amending its opinion does not, unfortunately, fix it. The
amended opinion does just as much damage to the TVPA’s
causation requirement for forced labor claims as its original
opinion, just with different language. In its original opinion,
the panel eliminated the TVPA’s requirement that a plaintiff
show individualized causation—that the defendant caused
36 OWINO V. CORECIVIC, INC.
the specific plaintiff to labor. In its amended opinion, the
panel acknowledges that the TVPA’s “by means of”
language requires some form of causation. But then the
panel immediately makes clear that it is really removing the
TVPA’s actual causation requirement by concluding that
causation may be inferred class-wide through a generally
applicable policy. To make this leap, the panel must assume
both that (1) every person in the class is reasonable and (2)
the policy actually causes every reasonable person to labor.
But it is easily foreseeable that, even assuming plaintiffs’
allegations of class-wide threats are true, some portion of the
class would clean merely because they liked to live in a clean
space. It is reasonable to believe that many normal human
beings would voluntarily sweep or wipe down furniture in
common areas simply because they enjoy living in a clean
environment. The panel’s new description of “causation”
isn’t actual causation, it is probable causation applied to an
abstract reasonable person, and therefore isn’t real causation
at all. Which brings us right back to the original opinion’s
conflation of the TVPA’s objective standard with its
requirement for individualized causation. The panel cannot
have it both ways: either the TVPA requires actual causation
or it does not. The opinion as now amended forswears it has
eliminated causation, but if anything, it is now even clearer
that the TVPA’s requirement of actual causation no longer
exists (or at least that panels of our court have taken
inconsistent positions).
In any event, the panel’s amendment leaves in place the
original opinion’s statement that the TVPA’s objective
standard means that the TVPA does not “necessitate[] a
subjective, individualized inquiry.” Id. That incorrect
statement of law remains on the books, and, despite the
amended opinion’s attempt to have it both ways, will
OWINO V. CORE CIVIC, INC. 37
continue—at odds with our own prior precedent—to
communicate that actual causation is not required by the
TVPA.
By ignoring in- and out-of-circuit precedent and the text
of the TVPA, the panel created both intra- and inter-circuit
conflict on whether a plaintiff must show actual causation
for a forced labor claim under the TVPA. The panel’s
removal of the TVPA’s causation requirement will plague
our cases going forward. The court should have granted
rehearing en banc to eliminate a conflict in our precedent and
restore the correct interpretation of the TVPA.
B.
Even if the panel had not created confusion through its
incorrect conclusion that the TVPA requires no proof of
actual causation, the panel still erred in certifying this class.
Rule 23 requires that the movant prove the class shares a
common question of law or fact. See Halliburton Co., 573
U.S. at 275. The panel concluded that the nationwide class
here shared a common question based on the declarations of
four detainees, all from the same facility, together with
corporate policies that are at best ambiguous as to the
misconduct claimed in those declarations. See Owino, 36
F.4th at 845. The panel thus created a new rule of
commonality that authorizes class certification so long as a
movant can offer anecdotal evidence of misconduct limited
to a small fraction of a class, coupled with written policies
that at most are unclear about the complained-of conduct.
That rule is inconsistent with Rule 23 and Dukes, and charts
an attractive and sure-to-be-followed path for those seeking
an easy class action certification.
Under Dukes, to prove commonality through a policy, a
plaintiff must offer “significant proof” that the complained-
38 OWINO V. CORECIVIC, INC.
of practice exists class-wide. 564 U.S. at 353. Although the
Supreme Court declined to offer a bright line rule for what
counts as “significant proof,” we see clearly in Dukes what
does not suffice: the combination of (1) an official policy of
discretion that can be used for unlawful activity, (2) expert
testimony that the permissive policy is used for unlawful
activity, (3) statistical evidence merely suggesting unlawful
activity, and (4) testimony of the unlawful activity from
more than one-hundred potential class members spread
across multiple locations. See id. at 353–58.
Since the plaintiffs in Dukes failed to clear the
commonality threshold, a fortiori the named plaintiffs in this
case failed. Here, the second and third categories above
were completely missing. And the first category of evidence
was no better here than it was in Dukes because, as the
district court acknowledged, the policies relied on by the
named plaintiffs were at most “not clear” as to the
misconduct alleged. And this case is worse than Dukes as to
the fourth category because the plaintiffs’ testimony here is
limited to one out of dozens of locations.
The written policies in this case merit more discussion
because, while the panel’s analysis of those policies is
frustratingly brief, it is nonetheless clear that the panel put
decisive weight on those policies. The named plaintiffs
attempted to prove that CoreCivic has a policy requiring all
detainees to “clean” the common living areas and to threaten
those who refuse with discipline. They presented two
written policies that the plaintiffs contend require “all
detainees” to clean the common living areas or suffer
disciplinary action. But the policies the named plaintiffs
cited do not say that; rather, only “detainee[] workers” must
clean the common living areas and detainees risk
disciplinary action only if they refuse to clean their
OWINO V. CORE CIVIC, INC. 39
“assigned living area[s],” (emphasis added). At best, these
policies are ambiguous about the very thing the named
plaintiffs needed to prove: the duties of “[a]ll detainees.”
Ambiguity is not “significant proof.” Id. at 353.
The first policy the named plaintiffs cited was the
Sanitation Policy. That policy distinguishes the duties of
“[a]ll detainees” from the duties of “detainee[] workers.”
“All detainees … are responsible for maintaining the
common living area in a clean and sanitary manner.” But
only “detainee[] workers” clean those areas. CoreCivic
officials uniformly testified that the “workers” referenced in
the Sanitation Policy are the participants in its voluntary
work program. Moreover, because only workers “clean[],”
the policy cannot plausibly mean that “all detainees[]” must
clean the common living areas. To conclude otherwise
renders superfluous the policy’s distinction between “all
detainees” and “detainee workers.” See DaVita Inc. v. Amy’s
Kitchen, Inc., 981 F.3d 664, 674 (9th Cir. 2020) (presuming
that a difference in language carries a difference in
meaning); Rainsong Co. v. FERC, 151 F.3d 1231, 1234 (9th
Cir. 1998) (explaining that interpretations rendering
language in a statute or regulation superfluous “are to be
avoided” (citation omitted)).
The district court found the Sanitation Policy
ambiguous. Because the panel’s task was to review for
abuse of discretion, it was obligated to defer to this finding
unless it was clearly erroneous. See B.K. by next friend
Tinsley v. Snyder, 922 F.3d 957, 966 (9th Cir. 2019). That
finding was not clearly erroneous, and the panel was thus
presented with an ambiguous written policy. An ambiguous
policy, however, is not materially different than the policy
that was insufficient in Dukes: both policies might allow the
complained-of misconduct, but neither require it.
40 OWINO V. CORECIVIC, INC.
The second written policy the named plaintiffs cited was
the Disciplinary Policy, which prohibits detainees from
“[r]efus[ing] to clean assigned living area[s].” The
Sanitation Policy clarifies that the “assigned living areas” are
the detainees’ personal cells and contrasts those cells with
the “common living area.” But if the “assigned living area”
that the Disciplinary Policy punishes detainees for not
cleaning is the detainees’ personal cells, then this policy does
not require any cleaning that the named plaintiffs claim was
improper. After all, the named plaintiffs had not attempted
to certify a class of detainees forced to clean their own cell
and have never contended that such a requirement is
problematic. This policy is thus, like the Sanitation Policy,
unhelpful to proving that all CoreCivic detainees were
required by any class-wide written policy to clean the
common living area.
In Dukes, the plaintiffs at least offered evidence of an
official policy of discretion that permitted the unlawful
activity. Here, it is a stretch to read CoreCivic’s written
policies as even permitting the conduct complained of by the
named plaintiffs. The facilities could require “[a]ll
detainees” to clean common living areas only by reading “all
detainees” to mean the same thing as “detainee workers” and
thus intentionally obfuscating the language of the Sanitation
Policy. The most that can be said about CoreCivic’s written
policies is that, at best, they might permit the complained-of
practice. This is what the district court concluded. But that
is clearly not enough under Dukes to suffice as “significant
proof” of a class-wide policy requiring all detainees to clean.
Beyond the written policies, the named plaintiffs’ only
other evidence to satisfy their burden of “significant proof”
of a common policy was their four declarations from
detainees—all housed at the same, single facility. That is of
OWINO V. CORE CIVIC, INC. 41
no help to the named plaintiffs, because the named plaintiffs’
declarations merely provide anecdotal support indicating
that CoreCivic may have had an unwritten policy requiring
all detainees to clean the common living area at that one
facility. Four declarations from one of 24 facilities cannot
provide “significant proof” of an unwritten policy that was
applied to thousands, and potentially “hundreds of
thousands,” of detainees across all CoreCivic facilities.
Because these four declarations were “concentrated in only”
one facility, the other 23 facilities were left with no
“anecdotes about [CoreCivic’s] operations at all.” Dukes,
564 U.S. at 358. The panel could not properly assume that
one facility’s unwritten practice was adopted and applied in
every one of CoreCivic’s other facilities. And the named
plaintiffs offered no evidence whatsoever that it was, falling
woefully short of their burden of “significant proof” of a
class-wide policy.
The panel’s opinion ignored these serious problems. It
did not engage with the different sections of the Sanitation
Policy or consider the testimony from CoreCivic’s
employees. Instead, the panel referenced portions of the
Sanitation Policy that apply only to “detainee workers”—
without even acknowledging that the policy distinguishes
between “detainee workers” and “all detainees”—and
concluded that the Sanitation Policy, when supplemented
with the four detainee declarations, evinced a class-wide
policy requiring all detainees to labor. See Owino, 36 F.4th
at 845. The panel also read the Sanitation Policy to require
detainees to “undertake sundry other cleaning
responsibilities across the facility,” a requirement not
appearing in the policy. Id. In its short two-paragraph
analysis, the panel applied a new rule that flips the script on
the Dukes commonality rule: a movant for class certification
42 OWINO V. CORECIVIC, INC.
must simply provide some class-wide official policy—
however ambiguous as to the claimed misconduct—and a
few declarations indicating that the defendant engaged in
misconduct somewhere, sometime.
Ultimately, the panel’s new rule takes us down a familiar
road where the seasoned traveler can easily predict the
destination. In 2004, a court in the Northern District of
California certified a class of “at least 1.5 million women”
who were or had been employed by Wal-Mart. Dukes v.
Wal-Mart Stores, Inc., 222 F.R.D. 137, 142, 188 (N.D. Cal.
2004). These plaintiffs sought monetary damages and
equitable relief for discrimination in pay and promotions.
See id. at 141. After first affirming in a panel opinion, we
went en banc and affirmed again, holding that the plaintiffs
proved that the nearly 1.5 million-member nationwide class
shared a common question. In Dukes we had more proof of
class-wide conduct than the panel had here: we relied on a
company-wide policy giving managers discretion in
employment decisions, expert testimony suggesting that
Wal-Mart’s culture prejudiced women, statistical disparities
between promotions of men and women, and testimony from
120 employees located in different stores nationwide saying
they had experienced discrimination. Dukes v. Wal-Mart
Stores, Inc., 603 F.3d 571, 600–13 (9th Cir. 2010) (en banc).
That was enough for us.
It was not enough for the Supreme Court. The Court
unanimously reversed us, with the majority holding that we
erred in concluding that there was even a single common
question. The Court reminded us that “there is a wide gap
between” an individual’s alleged injury, inflicted through a
“company … policy,” and “the existence of a class of
persons who have suffered the same injury [such] that” the
individual and class claims share “common questions.”
OWINO V. CORE CIVIC, INC. 43
Dukes, 564 U.S. at 352–53 (quotation omitted). And the
Court reminded us that a common question can arise from a
corporate policy only through “significant proof.” Id. at 353.
Because our opinion affirming the class certification relied
solely on an irrelevant policy, immaterial expert testimony,
and anecdotal testimony, the Court reversed. See id. at 354–
60.
I would say that the panel here repeated our error in
Dukes, but it did worse. At least in Dukes, we had anecdotal
evidence from multiple locations nationwide. We also had
statistical evidence and expert testimony that we do not have
here. And in Dukes, we could rely on an official policy that
at least implicitly permitted the unlawful conduct. The panel
affirmed in this case by relying solely on anecdotal evidence
from one of dozens of locations, and corporate policies that
are at best ambiguous on whether CoreCivic had a “policy”
that required detainees to labor. See Owino, 36 F.4th at 845–
46. Our court should have granted rehearing en banc.