(1 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-1, Page 1 of 4 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LISA HOOPER, BRANDIE OSBORNE, KAYLA WILLIS, REAVY WASHINGTON, individually and on behalf of a class of similarly situated individuals; THE EPISCOPAL DIOCESES OF OLYMPIA; TRINITY PARISH OF SEATTLE; REAL CHANGE, Ninth Circuit Case Nos. 18-35053 CIVIL PROCEDURE PROFESSORS' UNOPPOSED MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF Plaintiffs-Appellants, v. CITY OF SEATTLE, WASHINGTON; WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; ROGER MILLAR, SECRETARY OF TRANSPORTATION FOR WSDOT, in his official capacity, Defendants-Appellees. UNOPPOSED MOTION FOR LEAVE TO FILE BRIEF Pursuant to Federal Rule of Appellate Procedure 29(b), the civil procedure professors and scholars listed below move this Court for leave to file an amici curiae brief in the above matter. As indicated in the attached certificate of compliance, no party objects to amici filing the proposed brief, which is submitted with this motion. (2 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-1, Page 2 of 4 Amici are a group of scholars with expertise in class actions, federal courts, and federal civil procedure who have written extensively on the proper interpretation of Rule 23, particularly regarding questions involving commonality and adequate representation in impact litigation cases such as this. Thus, proposed amici have a direct interest in the proper interpretation of Rule 23 as it pertains to commonality and adequate representation—issues that are directly presented by this appeal. Amici seek to appear in this case not to further their own interests, but to inform the Court regarding the correct interpretation of law. In that regard, amici seek to brief the history of Rule 23(b)(2) and case law to assist the Court in reaching the correct interpretation of Rule 23 in this matter. The list of amici: 1 Pamela K. Bookman Assistant Professor of Law Temple University Beasley School of Law Robert Klonoff Jordan D. Schnitzer Professor of Law Lewis & Clark Law School Andrew Bradt Assistant Professor of Law University of California, Berkeley School of Law Alexandra D. Lahav Ellen Ash Peters Professor of Law University of Connecticut School of Law /// 1 This motion is on behalf of the individuals only. Institutional affiliations are listed for identification purposes. 2 (3 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-1, Page 3 of 4 Maureen Carroll Assistant Professor of Law University of Michigan Law School David Marcus Professor of Law University of Arizona James E. Rogers College of Law Brooke D. Coleman Professor of Law Co-Associate Dean for Research and Faculty Development Seattle University School of Law Elizabeth G. Porter Charles I. Stone Professor of Law University of Washington School of Law Robin Effron Professor of Law Co-Director for the Dennis J. Block Center for the Study of International Business Law Brooklyn Law School Adam Steinman University Research Professor of Law University of Alabama School of Law Adam Zimmerman Professor of Law Gerald Rosen Fellow Loyola Law School Los Angeles Based on the foregoing, amici respectfully request that this Court grant their unopposed motion for leave to file an amici curiae brief. DATED this 11th day of June, 2018. /s/ Zachariah H. Allen Shenoa Payne, Oregon State Bar No. 084392 shenoa@richardsonwright.com Zachariah H. Allen, Oregon State Bar No. 122729 Zach@richardsonwright.com RICHARDSON WRIGHT LLP 805 SW Broadway St., Ste. 470 Portland, Oregon 97205 (503) 517-8203 Of Attorneys for Proposed Amici Curiae 3 (4 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-1, Page 4 of 4 Certificate of Conference Counsel for amici certifies that he contacted counsel for each of the parties, and that no party objected to amici filing this brief. /s/ Zachariah H. Allen Certificate of Service I hereby certify that on June 11, 2017, I caused the foregoing electronic document to be filed with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Counsel for the parties to this matter are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system. /s/ Zachariah H. Allen 4 (5 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 1 of 30 No. 18-35053 __________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________________________________ LISA HOOPER, BRANDIE OSBORNE, KAYLA WILLIS, REAVY WASHINGTON, individually and on behalf of a class of similarly situated individuals; THE EPISCOPAL DIOCESES OF OLYMPIA; TRINITY PARISH OF SEATTLE; REAL CHANGE, Plaintiffs-Appellants, v. CITY OF SEATTLE, WASHINGTON; WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; ROGER MILLAR, SECRETARY OF TRANSPORTATION FOR WSDOT, in his official capacity, Defendants-Appellees. ____________________________________________ On Appeal from the United States District Court for the Western District of Washington Case No. 2:17-CV-00077-RSM The Honorable Ricardo S. Martinez __________________________________________________________________ BRIEF OF CIVIL PROCEDURE PROFESSORS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS (REVERSAL) Shenoa Payne, OSB No. 084392 Zachariah Allen, OSB No. 122729 RICHARDSON WRIGHT LLP 805 SW Broadway Street, Ste. 470 Portland, Oregon 97205 Tel.: 503-517-8203 shenoa@richardsonwright.com zach@richardsonwright.com Attorneys for Amici Curiae (6 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 2 of 30 TABLE OF CONTENTS Page TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES ................................................................................... iii INTERESTS OF AMICI CURIAE .............................................................................1 SUMMARY OF ARGUMENT .................................................................................1 ARGUMENT .............................................................................................................4 I. COURTS ROUTINELY FIND COMMON QUESTIONS IN INJUNCTIVE RELIEF CLASS ACTIONS AGAINST GOVERNMENT POLICIES AND PRACTICES ................................4 A. Rule 23(a)(2)’s commonality standard applies easily to facial challenges to government policies ....................................7 B. Rule 23(a)(2)’s commonality standard also applies to claims challenging unlawful implementation of government policies ....................................................................9 II. PARTIES SEEKING STRUCTURAL RELIEF FROM THE SAME GOVERNMENT POLICY SHARE INTERESTS WITH AND ARE ADEQUATE REPRESENTATIVES OF THE CLASS ..13 III. RULE 23 WAS WRITTEN TO PROMOTE GROUP CHALLENGES TO UNLAWFUL GOVERNMENT POLICIES .....17 CONCLUSION ........................................................................................................20 APPENDIX ..............................................................................................................21 CERTIFICATE OF COMPLIANCE .......................................................................22 CERTIFICATE OF SERVICE ................................................................................23 ii (7 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 3 of 30 TABLE OF AUTHORITIES Page(s) Cases Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997)............................................................................ 3, 14, 18 Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455 (2013).......................................................................................13 Braggs v. Dunn, 317 F.R.D. 634 (M.D. Ala. 2016)..................................................................12 Brown v. Plata, 563 U.S. 493 (2011).........................................................................................5 City of Indianapolis v. Edmond, 531 U.S. 32 (2000)...........................................................................................8 City of Memphis v. Cole, 137 S. Ct. 2220 (2017)...................................................................................10 Cole v. City of Memphis, 839 F.3d 530 (6th Cir. 2016) .................................................................. 10, 12 Cruz v. Zucker, 195 F.Supp.3d 554 (S.D.N.Y. 2016) ...............................................................8 Cruz v. Zucker, 218 F.Supp.3d 246 (S.D.N.Y. 2016) ...............................................................8 Dewey v. Volkswagen Aktiengellschaft, 681 F.3d 170 (3d Cir. 2012) ..........................................................................15 DL v. District of Columbia, 302 F.R.D. 1 (D.D.C. 2013) ..........................................................................11 DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013).......................................................................11 iii (8 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 4 of 30 DL v. District of Columbia, 860 F.3d 713 (D.C. Cir. 2017)................................................................ 10, 11 Fisher v. Tucson Unified Sch. Dist., 652 F.3d 1131 (9th Cir. 2011) .........................................................................5 Hansberry v. Lee, 311 U.S. 32 (1940).....................................................................................3, 13 Harris v. Rainey, 299 F.R.D. 486 (W.D. Va. 2014) ....................................................................5 Hooper v. City of Seattle, No. C17-77RSM, 2017 WL 4410029 (W.D. Wash. Oct. 4, 2017) ......................................................... 1, 2, 9, 11, 16 In re District of Columbia, 792 F.3d 96 (D.C. Cir. 2015).................................................................. 10, 20 In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242 (2d Cir. 2011) ..........................................................................15 In re Online DVD-Rental Antitrust Litig., 779 F.3d 934 (9th Cir. 2015) .........................................................................15 In re Target Corp. Customer Data Sec. Breach Litig., 847 F.3d 608 (8th Cir. 2017) .........................................................................16 In re Target Corp. Customer Data Sec. Breach Litig., 855 F.3d 913 (8th Cir. 2017) .........................................................................16 Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012) .........................................................................11 K.W. ex rel. D.W. v. Armstrong, 298 F.R.D. 479 (D. Idaho 2014), .....................................................................9 K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962 (9th Cir. 2015) ...........................................................................9 Kuck v. Danaher, 600 F.3d 159 (2d Cir. 2010) ............................................................................7 iv (9 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 5 of 30 M.D. v. Perry, 294 F.R.D. 7 (S.D. Tex. 2013) ............................................................... 10, 12 M.D. v. Perry, 675 F.3d 832 (5th Cir. 2012) .................................................................. 10, 12 Mathews v. Eldridge, 424 U.S. 319 (1976).........................................................................................7 McGann v. Ne. Illinois Reg’l Commuter R.R. Corp., 8 F.3d 1174 (7th Cir. 1993) .............................................................................8 McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) ...........................................................................5 Murphy v. Piper, No. CV 16-2623, 2017 WL 4355970 (D. Minn. Sept. 29, 2017) ................................................................................8 Norwood v. Bain, 166 F.3d 243 (4th Cir. 1999) ...........................................................................8 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).......................................................................................14 Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) ............................................................ 10, 11, 13 Phillips v. Sheriff of Cook County, 828 F.3d 541 (7th Cir. 2016) .........................................................................11 Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) .........................................................................19 Radcliffe v. Experian Info. Solutions, 715 F.3d 1157 (9th Cir. 2013) .......................................................................16 Rodriguez v. W. Publ’g Corp., 563 F.3d 948 (9th Cir. 2009) .........................................................................13 Saravia v. Sessions, 280 F.Supp.3d 1168 (N.D. Cal. 2017).............................................................9 v (10 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 6 of 30 Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015) ..........................................................................10 Sourovelis v. City of Philadelphia, 320 F.R.D. 12 (E.D. Pa. 2017) ........................................................................9 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)............................................................................... passim Yates v. Collier, 868 F.3d 354 (5th Cir. 2017) .................................................................. 10, 20 Rules Fed. R. Civ. P. 23 ............................................................................................. passim Fed. R. Civ. P. 23(a).................................................................................................13 Fed. R. Civ. P. 23(a)(4) ........................................................................................3, 13 Fed. R. Civ. P. 23(b) ................................................................................................18 Fed. R. Civ. P. 23(b)(2).................................................................................... passim Fed. R. Civ. P. 23(c).................................................................................................17 Fed. R. Civ. P. 23(d) ................................................................................................17 Fed. R. Civ. P. 23(g) ................................................................................................17 Other Authorities Benjamin Kaplan, A Prefatory Note to The Class Action—A Symposium, 10 B.C. Indus. & Com. L. Rev. 497 (1969) ....................................................3 Curtis J. Berger, Away from the Court House and into the Field: The Odyssey of a Special Master, 78 Colum. L. Rev. 707 (1978) .......................................................................17 David Marcus, Flawed But Noble: Desegregation Litigation and Its Implications for the Modern Class Action, 63 Fla. L. Rev. 657 (2011)...................................................................... 18, 19 vi (11 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 7 of 30 Elizabeth Chamblee Burch, Procedural Adequacy, 88 Tex. L. Rev. 55 (2010) .............................................................................14 John P. Frank, Response to 1996 Circulation of Proposed Rule 23 on Class Actions, Working Papers of the Advisory Committee on Civil Rules on Proposed Amendments to Civil Rule 23, Vol. 2, May 1997 .........................19 Maureen Carroll, Aggregation for Me, But Not For Thee: The Rise of Common Claims in Non-Class Litigation, 36 Cardozo L. Rev. 2017 (2015) .....................................................................4 Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009) ...........................................................................6 Robert H. Klonoff, Class Actions in the Year 2026: A Prognosis, 65 Emory L.J. 1569 (2016) ..............................................................................5 Robert H. Klonoff, The Decline of Class Actions, 90 Wash. U. L. Rev. 729 (2013).....................................................................5 Samuel Issacharoff & Richard A. Nagareda, Class Settlements Under Attack, 156 Pa. L. Rev. 1649 (2008)................................................................... 15, 16 Treatises 7AA Charles Alan Wright et al., Federal Practice and Procedure (3d ed. 2008) ....................................................................................... 4, 15, 17 Joseph M. McLaughlin, McLaughlin on Class Actions: Law & Practice (8th ed. 2011) .................................................................................................15 Principles of the Law of Aggregate Litigation (Am. Law Inst. 2010) ......................6 Constitutional Provisions U.S. Const. amend. IV .................................................................................. 9, 11, 15 U.S. Const. amend. XIV ................................................................................... 11, 15 vii (12 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 8 of 30 INTERESTS OF AMICI CURIAE Amici curiae are scholars with expertise in class actions, federal courts, and federal civil procedure who have an interest in, and have written extensively on, the proper interpretation and application of Federal Rule of Civil Procedure 23. Amici take no position on any other questions presented in this case.1 Amici, listed in the Appendix, file this brief in their individual capacities as scholars. We provide institutional affiliation solely for purposes of identification. Amici filed a motion today seeking permission to file this brief. SUMMARY OF ARGUMENT Amici submit this brief to explain the standard for certification of civil rights class actions under Rule 23(b)(2). In the case on appeal, the district court denied certification of a class of homeless Seattle residents challenging “sweeps” of unauthorized homeless encampments—a process that removes both homeless people and their possessions from public land—conducted by Defendants City of Seattle and the Washington State Department of Transportation. See Hooper v. City of Seattle, No. C17-77RSM, 2017 WL 4410029, slip op. at 1 (W.D. Wash. Oct. 4, 2017), ECF No. 209 (Order Den. Class Certification) (hereinafter “Order”). 1 No party or party’s counsel authored this brief in whole or in part, and no portion of this brief was financed by any party or any person associated with the parties—other than Amici or their Counsel. 1 (13 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 9 of 30 Notably, the plaintiffs in this case do not seek monetary damages or other individualized relief from an isolated government action. Rather, Plaintiffs allege that Defendants’ system-wide policies and practices (the “Homeless Sweeps Policies”) violate due process because, among other things, the policies do not provide adequate procedures for class members to contest the seizure and, often, destruction of their belongings.2 The district court’s decision departs from a virtually unbroken line of cases where courts have correctly certified class actions that challenge system-wide government abuse. For this reason, Amici offer three points in support of the propriety of class certification in such cases. First, courts routinely hold that common questions exist in injunctive relief class action challenges to government policies and practices. These include both facial challenges to policies, as well as challenges to unwritten institutional practices that would often escape resolution without class-wide fact-finding and declaratory relief. In either situation, if a government policy or practice is found unlawful, that determination “will resolve an issue that is central to the validity of 2 Second Amended Complaint at ¶¶ 35, 102, 108, 116, Hooper v. City of Seattle, No. C17-77RSM (W.D. Wash. filed May 23, 2017), ECF No. 87. Plaintiffs also argue that the Homeless Sweeps Policies violate due process because many encampment removals and “clean ups” are exempt from minimal notice requirements. Id. at ¶¶ 102, 108, 116. 2 (14 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 10 of 30 each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Second, named plaintiffs can “fairly and adequately protect the interests of the class” absent structural conflicts among class members. Fed. R. Civ. P. 23(a)(4); see e.g., Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626–27 (1997). A difference of opinion regarding the scope of injunctive relief is not a structural conflict, so long as class members’ interests are aligned. See Hansberry v. Lee, 311 U.S. 32, 42 (1940). To hold otherwise risks excluding legally unsophisticated parties from representing a class in a challenge to government policies, even where all class members are seeking similar structural relief. Third, Rule 23(b)(2) was written to promote the type of group challenge to government policies at issue here. Wal-Mart, 564 U.S. at 361. As the authors of Rule 23 explained, it was designed “to provide means of vindicating the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Benjamin Kaplan, A Prefatory Note to The Class Action—A Symposium, 10 B.C. Indus. & Com. L. Rev. 497, 497 (1969). Amici urge this Court to recognize that the claims in this case satisfy the letter, the intent, and the equitable purpose of Rule 23. 3 (15 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 11 of 30 ARGUMENT I. COURTS ROUTINELY FIND COMMON QUESTIONS IN INJUNCTIVE RELIEF CLASS ACTIONS AGAINST GOVERNMENT POLICIES AND PRACTICES Plaintiffs seeking class certification must show that “there are questions of law and fact common to the class.” Fed. R. Civ. P. 23(a)(2). Courts consistently and liberally construe this language to permit injunctive relief against the government. Conduct “appl[ies] generally to the class” when the government (1) establishes a “regulatory scheme common to all class members,” or (2) acts in a “consistent manner toward members of the class” such that its “actions may be viewed as part of a pattern of activity.” 7AA Charles Alan Wright et al, Federal Practice and Procedure § 1775 (3d ed. 2008) (collecting cases) (hereinafter “Wright & Miller”); see also Maureen Carroll, Aggregation for Me, But Not For Thee: The Rise of Common Claims in Non-Class Litigation, 36 Cardozo L. Rev. 2017, 2019 (2015) (noting that “whenever a plaintiff seeks purely injunctive or declaratory relief against a policy or practice that applies to a substantial number of persons on a generalized basis,” that case contains “an inherently aggregate dimension”). The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes is consistent with this longstanding approach. In Wal-Mart, a putative class of 1.5 million female employees sued their retail employer alleging gender discrimination 4 (16 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 12 of 30 in violation of Title VII. 564 U.S. at 343. The Court rejected certification of the Wal-Mart class primarily because the plaintiffs lacked commonality. Id. Though all employees may have suffered a Title VII injury, the massive collection of individualized claims did not rely on a “common contention.” Id. at 350 (noting that “Title VII, for example, can be violated in many ways”). Following Wal-Mart, some scholars speculated that the case might fundamentally transform class action practice. See, e.g., Robert H. Klonoff, The Decline of Class Actions, 90 Wash. U. L. Rev. 729, 773–74 (2013). But this has turned out not to be the case. Post-Wal-Mart, Rule 23(b)(2) remains a practical and effective vehicle for issuing widespread declaratory and injunctive relief from unlawful or oppressive action in contexts ranging from school desegregation to prison reform, from Title VII to the fight for marriage equality. 3 See Robert H. Klonoff, Class Actions in the Year 2026: A Prognosis, 65 Emory L.J. 1569, 1590 (2016) (“Another surprising area of strength, particularly in the wake of [Wal- 3 See, e.g., Fisher v. Tucson Unified Sch. Dist., 652 F.3d 1131, 1137 (9th Cir. 2011) (class action school desegregation case resulting in entry of a consent decree); Brown v. Plata, 563 U.S. 493 (2011) (affirming remedial order granted to class of California prisoners with serious mental disorders who brought class action alleging Eighth Amendment violations); McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) (reversing district court’s denial of certification of class alleging racial discrimination in employment in violation of Title VII); Harris v. Rainey, 299 F.R.D. 486 (W.D. Va. 2014) (certifying a class of same-sex couples seeking to strike down Virginia’s law banning same-sex marriage). 5 (17 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 13 of 30 Mart] and other recent decisions eroding the class action device, involves public interest class action cases seeking structural relief.”). This is so because, under Wal-Mart, commonality is easily satisfied in situations like the instant case, where putative plaintiffs raise structural challenges relating to government policies. The pivotal language and holding in Wal-Mart— the requirement that the plaintiffs’ contentions be capable of resolution “in one stroke”—is a reference to the well-known work of Professor Richard Nagareda. 564 U.S. at 360 (citing Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). Nagareda doubted that there was a common remedy for the millions of allegedly aggrieved women in WalMart, a point upon which the Court decisively relied. 564 U.S. at 350. Yet in the same passage cited by the Court, Nagareda refers to a portion of the American Legal Institute’s Principles that explains why injunctive relief against the government often does apply to all: [I]n litigation against governmental entities . . . the generally applicable nature of the policy or practice typically means that the defendant government will be in a position, as a practical matter, either to maintain or discontinue the disputed policy or practice as a whole, not to afford relief therefrom only to the named plaintiff. Principles of the Law of Aggregate Litigation § 2.04 cmt. a. (Am. Law Inst. 2010) (cited in Nagareda, supra, at 132 n.123). 6 (18 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 14 of 30 It is therefore not surprising that, as explained below, courts continue to find that “common questions” exist in structural suits against government policies and practices. In such cases, class treatment may be the only viable way for people to challenge an unlawful government action. A. Rule 23(a)(2)’s commonality standard applies easily to facial challenges to government policies. Courts routinely find that a facial challenge to a government policy satisfies Rule 23(a)(2) commonality precisely because the relief sought—the invalidation of that policy—will apply to all parties in the same way. In particular, due process challenges to government policies, like this one, lend themselves to class certification because they often raise generic questions about how system-wide procedures impact a group of people who depend on those procedures for relief. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (“[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.”); Kuck v. Danaher, 600 F.3d 159, 165 (2d Cir. 2010) (“The viability of [the plaintiff’s] due process claim does not turn on the merits of his initial challenge; rather, it concerns whether he received the process he was due.”). Indeed, many due process challenges to Social Security denials, immigration procedures and other state-sanctioned actions 7 (19 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 15 of 30 proceed as class actions—ensuring that courts have a complete record to address the full scope of the legal issues alleged. 4 Wal-Mart presents no obstacle to the certification of classes making this type of structural challenge. When a policy is facially unconstitutional, it is void—in whole or in part—and that invalidity applies equally to all class members. See, e.g., Cruz v. Zucker, 195 F.Supp.3d 554, 565–66 (S.D.N.Y. 2016), recons. granted on separate grounds, 218 F.Supp.3d 246 (S.D.N.Y. 2016) (facial challenge to regulatory ban “is the ‘glue’ holding together plaintiffs’ claims as required by [Wal-Mart]: if the ban violates the federal law, each of the claims brought by members of the [class] will be resolved ‘in one stroke’”). Accordingly, courts since Wal-Mart continue to certify class actions alleging that a government policy violated plaintiffs’ due process rights in cases ranging from prisoners’ rights and civil forfeiture to Medicaid and veterans’ benefits. 5 4 In the Fourth Amendment context, courts have long recognized the propriety of class certification in cases where the government has conducted searches or seizures based on impersonal, blanket rules rather than individualized suspicion. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (drug checkpoints); Norwood v. Bain, 166 F.3d 243 (4th Cir. 1999) (weapons checkpoint); McGann v. Ne. Illinois Reg’l Commuter R.R. Corp., 8 F.3d 1174 (7th Cir. 1993) (parking lot checkpoint). 5 See, e.g., Murphy v. Piper, No. CV 16-2623, 2017 WL 4355970, at *10 (D. Minn. Sept. 29, 2017) (“Plaintiffs’ due process claims are capable of [c]lasswide resolution because the Court can determine with respect to the class as a whole 8 (20 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 16 of 30 Here, Plaintiffs challenge the Homeless Sweeps Policies as facially unconstitutional under the Fourth and Fourteenth Amendments because the Policies’ definitions are impermissibly vague and because the Policies do not provide Plaintiffs sufficient pre-seizure notice. Order at 3–4. This case, which raises system-wide questions about the constitutionality of a government policy, is precisely the kind of suit that will allow the court to answer Petitioners’ claims “in one stroke.” B. Rule 23(a)(2)’s commonality standard also applies to claims challenging unlawful implementation of government policies. Commonality is also met when plaintiffs make an as-applied challenge to the implementation of government policies like the Homeless Sweeps Policies. WalMart reaffirmed that plaintiffs can challenge unlawful practices that “manifest[]” as a result of a “subjective decisionmaking process.” Wal-Mart, 564 U.S. at 353. Since Wal-Mart, the federal courts of appeals have issued ten published decisions whether Defendant is fulfilling her statutory obligation to ensure that adequate notice and opportunity for a hearing”); Sourovelis v. City of Philadelphia, 320 F.R.D. 12, 22 (E.D. Pa. 2017) (certifying a class challenging Philadelphia civil forfeiture rules that deprived parties of procedural due process); K.W. ex rel. D.W. v. Armstrong, 298 F.R.D. 479, 486 (D. Idaho 2014), aff’d, 789 F.3d 962 (9th Cir. 2015) (certifying a class of Medicaid recipients alleging procedural due process claims); Saravia v. Sessions, 280 F.Supp.3d 1168, 1203 (N.D. Cal. 2017) (“The procedural due process claim for which [the named plaintiff] seeks class-wide preliminary injunctive relief is amenable to common answers.”). 9 (21 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 17 of 30 analyzing the merits of class certification motions in injunctive relief cases against government defendants challenging the implementation of government policies. In six of those cases, the courts either affirmed decisions granting class certification or reversed decisions denying class certification. See Yates v. Collier, 868 F.3d 354 (5th Cir. 2017) (class of prisoners challenging temperature policies in prison); DL v. District of Columbia, 860 F.3d 713 (D.C. Cir. 2017) (class of former pre-schoolage children challenging implementation of learning plans under IDEA); Cole v. City of Memphis, 839 F.3d 530 (6th Cir. 2016), cert. denied sub nom. City of Memphis v. Cole, 137 S. Ct. 2220 (2017) (class of plaintiffs challenging practice of sweeping streets of pedestrians in the morning hours); In re District of Columbia, 792 F.3d 96, 102 (D.C. Cir. 2015) (class of citizens challenging failure of municipality to provide community-based care under Medicaid); Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015) (class of inmates challenging a policy of housing inmates known to be hostile to one another in the same cells); Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) (class of state prisoners challenging policies related to their medical and dental care). Two others involved district courts that re-certified classes after their respective courts of appeal vacated and remanded their certification orders in light of Wal-Mart. See M.D. v. Perry, 675 F.3d 832 (5th Cir. 2012), enforced on remand, M.D. v. Perry, 294 F.R.D. 7 (S.D. Tex. 2013) (class of children challenging Texas placement practices within child protective 10 (22 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 18 of 30 services); see also DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013), enforced on remand, DL v. District of Columbia, 302 F.R.D. 1 (D.D.C. 2013), aff’d, DL v. District of Columbia, 860 F.3d 713 (D.C. Cir. 2017) (class of children challenging failure to provide required education under IDEA).6 Plaintiffs’ challenge to the Homeless Sweeps Policies, like the cases above, meets the Rule 23(a)(2) commonality standard. Plaintiffs allege that Defendants regularly destroyed the property of homeless Seattle citizens when implementing sweeps in violation of the Fourth Amendment. Order at 4–5. In addition, Plaintiffs allege that Defendants denied them due process under the Fourteenth Amendment by failing to give proper notice, and by failing to provide plaintiffs with a feasible avenue for reclaiming their possessions. Id. Here, in contrast to Wal-Mart, Plaintiffs claim a common injury—unlawful deprivation of property without 6 In only two cases since Wal-Mart have courts of appeal rendered decisions that left this type of class uncertified. See Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012); see also Phillips v. Sheriff of Cook County, 828 F.3d 541 (7th Cir. 2016). In Phillips, the court found that the plaintiffs’ claims were isolated instances, not the systemic result of a policy or practice, while in Jamie S., the court found that the class was too heterogeneous and required individual hearings to determine class membership. These cases are different than the allegations here, which involve a set of policies and their implementation. Cf., Parsons, 754 F.3d at 680 (“Even if some . . . are exposed to a greater or idiosyncratic risk of harm by the policy and practice of not hiring enough staff to provide adequate medical care to all inmates, that single policy and practice allegedly exposes every single inmate to a serious risk of the same basic kind of harm.” (Emphasis in original.)). 11 (23 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 19 of 30 notice—and the class encompasses only those subject to the unlawful conduct giving rise to that injury—those living unhoused on public land who are subject to the Homeless Sweeps Policies. Compare, Wal-Mart, 564 U.S. at 353 (“The whole point of permitting discretionary decisionmaking is to avoid evaluating employees under a common standard.”), with Cole v. City of Memphis, 839 F.3d at 530 (affirming certification of injunctive class action arising out of routine police sweeps of area near nightclub). To be sure, plaintiffs must present evidence that injuries to the class were caused by a defendant’s implementation of its policies. Wal-Mart, 564 U.S. at 351 (“[i]nformation about disparities at the regional and national level” did not establish individual discrimination for one particular employee in a single store”); compare, M.D. v. Perry, 675 F.3d at 842, with M.D. v. Perry, 294 F.R.D. at 38–45. But where the common injury is limited and results from the implementation of a government policy—like an unlawful deprivation of property without notice to a readily identifiable group of people—plaintiffs can meet this burden with traditional evidentiary tools, including declarations, photographs, and videos. See, e.g., Braggs v. Dunn, 317 F.R.D. 634, 663 (M.D. Ala. 2016) (prisoners’ procedural due process challenge can be “answered in one stroke—namely, by determining whether [the department of corrections’] practices adequately protect due-process rights.”); see also Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 12 (24 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 20 of 30 455, 468 (2013) (explaining that a putative class “need not, at that threshold, prove that the predominating question will be answered in their favor”). Another rule would perversely raise the bar for class-wide challenges to unwritten government practices that violate the law, where class discovery and trial may be the only way for parties to challenge unlawful government action that otherwise escapes detection.7 II. PARTIES SEEKING STRUCTURAL RELIEF FROM THE SAME GOVERNMENT POLICY SHARE INTERESTS WITH AND ARE ADEQUATE REPRESENTATIVES OF THE CLASS In order to maintain a class action, plaintiffs must demonstrate that “the representative parties will fairly and adequately protect the class.” Fed. R. Civ. P. 23(a)(4); Hansberry, 311 U.S. at 42–43 (absent parties “may be bound by the judgment where they are in fact adequately represented by parties who are present”); Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 961 (9th Cir. 2009). The Supreme Court has set guideposts for analyzing whether named representatives will adequately represent an absent class. The most significant guidepost, rooted in Hansberry, is the requirement that the interests of named class representatives be structurally aligned with the interests of other class members. As Professor 7 In addition, because “[t]he adequacy-of-representation requirement tends to merge with the commonality and typicality criteria of Rule 23(a),” Amchem, 521 U.S. at 625-26, a flawed commonality analysis taints a court’s analysis of typicality and adequacy. See Parsons, 754 F.3d at 685. That is the case here. 13 (25 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 21 of 30 Elizabeth Chamblee Burch has observed, “[b]oth presently and historically, adequate representation has been consistently tied to an identity of interests.” Elizabeth Chamblee Burch, Procedural Adequacy, 88 Tex. L. Rev. 55, 55 (2010). Structural conflicts, while rare, typically arise in the context of Rule 23(b)(3) class certifications and settlements where plaintiffs seek money damages. In these instances, potential conflicts exist where the court finds an obvious risk that the class representatives’ recovery might be traded off against the recovery of other class members. For example, in Amchem Products, Inc. v. Windsor, the Court rejected a proposed global settlement of most of the country’s asbestos litigation. 521 U.S. at 625–29 The Court found irreconcilable conflicts between present claimants—those with current asbestos-related injuries—and exposure-only class members who had not yet manifested an injury. Id. at 626–27 (holding a “class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members”). As its fatal flaw, the proposed class settlement contained “no structural assurance of fair and adequate representation” for the exposure-only, future claimants. Id. at 627 (emphases added); see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 855–59 (1999) (inadequate representation where, inter alia, some claimants would have access to insurance funds while others would not); Principles of the Law of Aggregate Litigation, § 2.07(a)(1) (Am. Law Inst. 2010) (structural definition of adequacy of representation). 14 (26 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 22 of 30 Notably, however, “[n]ot all allegations of conflict will make a proposed representative inadequate.” Joseph M. McLaughlin, McLaughlin on Class Actions: Law & Practice § 4:30 (8th ed. 2011). “[T]he conflict inquiry asks what divisions should render the class representation so defective in structure as to rise to the level of a constitutional dereliction.” Samuel Issacharoff & Richard A. Nagareda, Class Settlements Under Attack, 156 Pa. L. Rev. 1649, 1678 (2008); Wright & Miller § 1768 (“. . . [O]nly a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status”). Courts of appeals are united in holding that a conflict must be fundamental—a fissure, rather than a crack—to defeat adequacy of representation. See, e.g., In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 943 (9th Cir. 2015) (incentive payments to named representatives did not defeat adequacy where they were not promised ex ante and “there were no structural differences in the claims of the class representatives and the other class members”); Dewey v. Volkswagen Aktiengellschaft, 681 F.3d 170, 184 (3d Cir. 2012) (“Obviously, not all intra-class conflicts will defeat the adequacy inquiry”); In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011) (conflicts between representatives and class members must be fundamental). In contrast, courts have found conflicts in large damages class actions where structural incentives place the named representatives in a different position with 15 (27 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 23 of 30 respect to the class than other class members. See Radcliffe v. Experian Info. Solutions, 715 F.3d 1157, 1161 (9th Cir. 2013) (incentive awards above representatives’ actual damages “created a patent divergence of interests between the named representatives and the class”); see also, e.g., In re Target Corp. Customer Data Sec. Breach Litig., 847 F.3d 608, 613 (8th Cir.), amended, 855 F.3d 913 (8th Cir. 2017) (noting a potential conflict between class members who can claim settlement funds and class members who cannot, and remanding for an analysis of whether such a conflict would be “fundamental”). In the case on appeal, there exists no structural fissure—no “fundamental mismatch,” in the words of Professors Issacharoff and Nagareda—between the relief sought by the class representatives and other members of the putative class. Issacharoff & Nagareda, supra, at 1679–80. Instead, the district court identified a divide between the named Plaintiffs’ ideal outcomes and the more realistic goals of the litigation articulated by class counsel. Order at 15–16. A difference of opinion regarding the scope and reach of injunctive relief is not a structural conflict. Ultimately, the scope of the injunctive remedy is a matter for the court’s equitable judgment. A more stringent standard would deny vulnerable plaintiffs, who often lack access to counsel, the ability to challenge and obtain consistent relief from the same government policy. Legally unsophisticated parties are unlikely to 16 (28 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 24 of 30 understand which injunctive remedies a court would realistically order, but this ought not deprive them of their day in court altogether. To the extent that class members disagree about the appropriate remedy, the court has the power to permit any affected person to be heard. See, e.g., Curtis J. Berger, Away from the Court House and into the Field: The Odyssey of a Special Master, 78 Colum. L. Rev. 707 (1978). Moreover, even when there are significant concerns about adequacy of representation, “[t]he court may use one of a wide assortment of curative mechanisms 8 available in Rule 23 to assure proper representation.” Wright & Miller § 1768. Here, the bottom line is that the named class representatives’ interest in obtaining relief from the Homeless Sweeps Policies is universally shared among all class members. III. RULE 23 WAS WRITTEN TO PROMOTE GROUP CHALLENGES TO UNLAWFUL GOVERNMENT POLICIES Rule 23(b) of the Federal Rules of Civil Procedure says that a class action is appropriate when “the party opposing the class has acted or refused to act on grounds that apply generally to the class.” The Supreme Court has long recognized that Rule 23 “builds on experience mainly, but not exclusively, in the civil rights 8 See, e.g., Fed. R. Civ. P. 23(c) (court can create subclasses); Fed. R. Civ. P. 23(d) (court has broad equitable powers over class actions including the power to require “appropriate notice to some or all class members” or to “impos[e] conditions on class representatives”); Fed. R. Civ. P. 23(g) (court must appoint class counsel). 17 (29 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 25 of 30 field” and civil rights cases are the “prime examples” of what Rule 23(b)(2) was designed to capture.” Amchem, 521 U.S. at 614 (citations omitted); see also David Marcus, Flawed But Noble: Desegregation Litigation and Its Implications for the Modern Class Action, 63 Fla. L. Rev. 657, 678–91 (2011). In Wal-Mart, the Supreme Court reaffirmed that historical models of civil rights class actions offer persuasive clues to the meaning of the Rule 23’s text. 564 U.S. at 361 (Rule 23 “reflects a series of decisions involving challenges to racial segregation – conduct that was remedied by a single classwide order”). The Court’s focus in Wal-Mart on widespread equitable relief as the driving force behind Rule 23(b)(2) is well supported by the historical record. As the authors of Rule 23 explained, the provision was designed “to provide means of vindicating the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Kaplan, supra, at 497. The Advisory Committee Note to Rule 23 envisioned that the rule would apply to “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.” 39 F.R.D. 69, 102 (1966). Desegregation cases drove the adoption of Rule 23(b)(2) because without such a device, the schools could provide relief to one individual student without structurally reforming the entire segregated system. See Marcus, supra, at 706–07. 18 (30 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 26 of 30 Rule 23(b)(2) made it possible to grant relief across the board and prevented defendants from avoiding the Supreme Court’s equal protection mandate by providing relief on an individual basis only. Charles Alan Wright, one of the lead drafters of the 1966 rule, was “keenly interested” in attempts to use individual procedures to defeat desegregation class actions. During deliberations on Rule 23, Wright sent Kaplan a letter that quoted extensively from Potts v. Flax, 313 F.2d 284 (5th Cir. 1963), a case in which a school board attempted to defeat a class action on grounds that any particular student’s assignment to any particular school required an individualized process. The Fifth Circuit rejected this argument because the claim of individualization was an illusion. “Properly construed,” the Fifth Circuit reasoned, “the purpose of the suit was not to achieve specific assignment of specific children to any specific . . . school.” Rather, the suit “was directed at the system-wide policy of racial segregation.” After receiving Wright’s letter quoting from Potts, Kaplan redrafted Rule 23(b)(2) and included Potts in the Advisory Committee’s note on the revised rule as an exemplar of the Rule 23(b)(2) class action. In sum, Rule 23’s drafters specifically designed class actions to support the judiciary’s role in our tripartite system of government—ensuring that the coordinate branches observe the law and serve the interests of those who depend on them for relief. Consistent with this history, courts liberally construe the 19 (31 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 27 of 30 language in Rule 23 to permit injunctive relief classes against the government. See, e.g., In re District of Columbia, 792 F.3d at 101 (affirming certification of injunctive class brought by disabled Medicaid beneficiaries based on practice of segregation); Yates, 868 F.3d at 368 (affirming certification of injunctive class brought by prisoners alleging exposure to substantial risk of harm due to high heat). Nothing about the Supreme Court’s recent treatment of Rule 23(b)(2) gives any reason to depart from this time-honored practice. CONCLUSION Certification of injunctive relief class actions challenging government policies is consistent with Rule 23(b)(2)’s text, design, and history, as well as a long and unbroken line of case law. Such cases permit courts to answer many petitioners’ claims “in one stroke,” just as Wal-Mart requires, precisely because they raise system-wide policy concerns. Just as important, Rule 23(b)(2) class actions help grant legal access to those who depend on the courts for relief. Respectfully submitted this 11th day of June, 2018. RICHARDSON WRIGHT LLP /s/ Zachariah H. Allen Shenoa L. Payne, OSB No. 084392 Zachariah H. Allen, OSB No. 122729 Attorneys for Amici Curiae 20 (32 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 28 of 30 APPENDIX LIST OF SIGNATORIES9 Pamela K. Bookman Assistant Professor of Law Temple University Beasley School of Law Robert Klonoff Jordan D. Schnitzer Professor of Law Lewis & Clark Law School Alexandra D. Lahav Ellen Ash Peters Professor of Law University of Connecticut School of Law Andrew Bradt Assistant Professor of Law University of California, Berkeley School of Law David Marcus Professor of Law University of Arizona James E. Rogers College of Law Maureen Carroll Assistant Professor of Law University of Michigan Law School Brooke D. Coleman Professor of Law Co-Associate Dean for Research and Faculty Development Seattle University School of Law Elizabeth G. Porter Charles I. Stone Professor of Law University of Washington School of Law Adam Steinman University Research Professor of Law University of Alabama School of Law Robin Effron Professor of Law Co-Director for the Dennis J. Block Center for the Study of International Business Law Brooklyn Law School Adam Zimmerman Professor of Law Gerald Rosen Fellow Loyola Law School Los Angeles 9 This brief presents the views of the individual signatories; institutional affiliations are provided for identification purposes only. 21 (33 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 29 of 30 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(g), I certify that this Brief of Amici Curiae complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)(i) because this brief contains 4,786 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). This Brief of Amici Curiae complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally-spaced typeface using Microsoft Word 2016 in Times New Roman, 14-point font. Date: June 11, 2018 /s/ Zachariah H. Allen Zachariah H. Allen, OSB No. 122729 Attorney for Amici Curiae 22 (34 of 34) Case: 18-35053, 06/11/2018, ID: 10904475, DktEntry: 19-2, Page 30 of 30 CERTIFICATE OF SERVICE I hereby certify that on June 11, 2018, I caused the foregoing Brief of Amici Curiae to be electronically filed with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that I have caused the foregoing document to be sent by electronic mail to the following non-CM/ECF participant: None /s/ Zachariah Allen Zachariah H. Allen, Oregon State Bar No. 122729 Attorney for Amici Curiae 23