Petition for Writ of Certiorari — CoreCivic, Inc., Petitioner v. Sylvester Owino, et al., Individually and on Behalf of All Others Similarly Situated

Supreme Court briefApr 18, 2023

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No. ______

In the

Supreme Court of the United States

CORECIVIC, INC.,

Petitioner,

SYLVESTER OWINO AND JONATHAN GOMEZ, on behalf

of themselves and all others similarly situated,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DANIEL P. STRUCK

ROMAN MARTINEZ

NICHOLAS D. ACEDO

Counsel of Record

STRUCK LOVE BOJANOWSKI CHARLES S. DAMERON

& ACEDO, PLC

ANTHONY J. JEFFRIES

3100 West Ray Road

LATHAM & WATKINS LLP

Suite 300

555 Eleventh Street, NW

Chandler, AZ 85226

Suite 1000

Washington, DC 20004

(202) 637-3377

roman.martinez@lw.com

Counsel for Petitioner

QUESTIONS PRESENTED

Federal Rule of Civil Procedure 23 establishes that

a district court may certify a class action “only if,”

among other things, “there are questions of law or fact

common to the class.” Fed. R. Civ. P. 23(a)(2). In the

decision below, the Ninth Circuit applied an expressly

one-sided, pro-plaintiff standard of review to affirm

the district court’s certification of multiple classes,

including a nationwide class with more than a million

members. In approving the proposed classes, the

Ninth Circuit found that the legality of petitioner’s

sanitation and disciplinary policies presented a

common question warranting class treatment—even

without proof that those policies were uniformly

applied to the members of the class.

The questions presented are:

1. Whether courts of appeals reviewing Rule 23

class certification decisions must, as a matter of law,

give district court decisions granting class

certification “noticeably more deference” than rulings

denying class certification.

2. Whether

Rule

23(a)’s

commonality

requirement is satisfied through the assertion of a

purportedly class-wide policy without significant

proof that such policy is uniformly applied class-wide.

PARTIES TO THE PROCEEDINGS

Petitioner CoreCivic, Inc. was defendantappellant in the Ninth Circuit below.

Respondents Sylvester Owino and Jonathan

Gomez were plaintiffs-appellees in the Ninth Circuit

below.

RULE 29.6 STATEMENT

Pursuant to this Court’s Rule 29.6, Petitioner

CoreCivic, Inc. respectfully submits the following

corporate disclosure statement.

CoreCivic, Inc. is a publicly owned corporation. It

has no parent company, and no publicly held

corporation owns 10% or more of its stock.

LIST OF RELATED PROCEEDINGS

The following proceedings are directly related to

this petition:

Owino v. CoreCivic, Inc., No. 21-55221, U.S. Court

of Appeals for the Ninth Circuit, judgment entered

June 3, 2022, rehearing denied December 20, 2022.

Owino v. CoreCivic, Inc., No. 3:17-cv-1112, U.S.

District Court for the Southern District of California,

class certification granted April 1, 2020,

reconsideration denied January 13, 2021.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDINGS ........................ ii

RULE 29.6 STATEMENT.......................................... ii

LIST OF RELATED PROCEEDINGS ...................... ii

TABLE OF AUTHORITIES ................................... viii

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTORY

AND

REGULATORY

PROVISIONS INVOLVED...................................1

INTRODUCTION .......................................................2

A. CoreCivic’s Detention Facilities And

Sanitation Policy............................................4

B. Respondents’ Claims And Motion For

Class Certification .........................................6

C. The Ninth Circuit’s Decision .........................9

The Standard-Of-Review Issue Warrants

Certiorari ............................................................11

A. The Circuits Are Split Over The

Standard Of Review In ClassCertification Appeals ...................................11

B. The Ninth Circuit’s Pro-Certification

Standard Of Review Is Wrong ....................13

C. This Issue Is Important, And This

Case Is The Right Vehicle To Address

It ...................................................................16

TABLE OF CONTENTS—Continued

Page

II. The Rule 23(a) Commonality Issue

Warrants Certiorari............................................18

A. The Circuits Are Split On The

Standard For Proving That A

Defendant’s “Policy” Presents A

Common Issue .............................................19

B. The Decision Below Is Wrong .....................29

C. The

Commonality

Issue

Exceptionally Important, Especially

In The Ninth Circuit....................................32

CONCLUSION ..........................................................35

APPENDIX

Opinion of the United States Court of Appeals

for the Ninth Circuit, Owino v. CoreCivic,

Inc., No. 21-55221, 60 F.4th 437 (9th Cir.

Dec. 20, 2022) ......................................................1a

Order of the United States District Court for

the Southern District of California

Denying Plaintiffs’ Motion for Partial

Judgment,

Defendant’s

Moton

for

Judgment on the Pleadings, Plaintiffs’

Motion to Exclude, and Granting in Part

and Denying in Part Plaintiffs’ Motion for

Class Certification, Owino v. CoreCivic,

Inc., No. 17-cv-1112, 2020 WL 1550218

(S.D. Cal. Apr. 1, 2020) .....................................41a

TABLE OF CONTENTS—Continued

Page

Declaration of Plaintiff Sylvester Owino in

Support of Plaintiffs’ Motion for Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. Apr. 15, 2019),

ECF No. 84-3...................................................121a

Declaration of Plaintiff Jonathan Gomez in

Support of Plaintiffs’ Motion for Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. Apr. 15, 2019),

ECF No. 84-4...................................................134a

Declaration of Nehemias Emmanuel Nunez

Carrillo, Owino v. CoreCivic, Inc., No. 17cv-1112 (S.D. Cal. Apr. 15, 2019), ECF No.

84-5 ..................................................................145a

Declaration of Jonathan Ortiz Dubon, Owino

v. CoreCivic, Inc., No. 17-cv-1112 (S.D.

Cal. Apr. 15, 2019), ECF No. 84-6 ..................149a

Otay Mesa Detention Center Policy 12-100

(effective Sept. 1, 2015), Exhibit 12 to

Declaration of Eileen R. Ridley in Support

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. June 27, 2019),

ECF No. 111-6.................................................153a

Declaration of Michael Donahue in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................161a

TABLE OF CONTENTS—Continued

Page

Declaration of F. Hood in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2 (redacted version) ..................170a

Declaration of Chuck Keeton in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................182a

Declaration of Kris Kline in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................189a

Declaration of Robert Lacy, Jr. in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................196a

Declaration of A. Meyers in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................204a

vii

TABLE OF CONTENTS—Continued

Page

Declaration of D. Minehart in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................211a

Declaration of Orlando Perez in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................217a

Declaration of Stacey Stone in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................226a

Declaration of D. Topasna in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................233a

viii

TABLE OF AUTHORITIES

Page(s)

CASES

Allen v. Ollie’s Bargain Outlet, Inc.,

37 F.4th 890 (3d Cir. 2022)............................21, 22

Associated Press v. United States,

326 U.S. 1 (1945) ..................................................16

B.K. ex rel. Tinsley v. Snyder,

922 F.3d 957 (9th Cir. 2019), cert. denied,

140 S. Ct. 2509 (2020)....................................28, 29

Barrows v. Becerra,

24 F.4th 116 (2d Cir. 2022)............................12, 14

Bridging Communities Inc. v. Top Flite

Financial Inc.,

843 F.3d 1119 (6th Cir. 2016), cert. denied,

138 S. Ct. 80 (2017)..............................................13

Brown v. Nucor Corp.,

785 F.3d 895 (4th Cir. 2015)................................21

Comcast Corp. v. Behrend,

569 U.S. 27 (2013) ..........................................14, 15

Cordoba v. DIRECTV, LLC,

942 F.3d 1259 (11th Cir. 2019)............................13

East Texas Motor Freight System Inc. v.

Rodriguez,

431 U.S. 395 (1977) ..............................................20

General Electric Co. v. Joiner,

522 U.S. 136 (1997) ..............................................17

Haley v. Teachers Insurance & Annuity

Association of America,

54 F.4th 115 (2d Cir. 2022)............................12, 14

TABLE OF AUTHORITIES—Continued

Page(s)

Highmark Inc. v. Allcare Health Management

System, Inc.,

572 U.S. 559 (2014) ..............................................17

Icicle Seafoods, Inc. v. Worthington,

475 U.S. 709 (1986) ..............................................17

Jimenez v. Allstate Insurance Co.,

765 F.3d 1161 (9th Cir. 2014), cert. denied,

576 U.S. 1028 (2015) ......................................26, 27

Levitt v. J.P. Morgan Securities, Inc.,

710 F.3d 454 (2d Cir. 2013) .................................12

Lundquist v. Security Pacific Automotive

Financial Services Corp.,

993 F.2d 11 (2d Cir.), cert. denied, 510

U.S. 959 (1993).....................................................12

Matamoros v. Starbucks Corp.,

699 F.3d 129 (1st Cir. 2012) ................................12

Millowitz v. Citigroup Global Markets, Inc.

(In re Salomon Analyst Metromedia

Litigation),

544 F.3d 474 (2d Cir. 2008) ...........................12, 14

Newton v. Merrill Lynch, Pierce, Fenner &

Smith, Inc.,

259 F.3d 154 (3d Cir. 2001) .................................12

Parent/Professional Advocacy League v. City

of Springfield,

934 F.3d 13 (1st Cir. 2019) ............ 3, 19, 21, 24, 29

Parsons v. Ryan,

754 F.3d 657 (9th Cir. 2014).................... 27, 28, 29

TABLE OF AUTHORITIES—Continued

Page(s)

Parsons v. Ryan,

784 F.3d 571 (9th Cir. 2015).................... 27, 28, 32

Roach v. T.L. Cannon Corp.,

778 F.3d 401 (2d Cir. 2015) .................................12

Ross v. Gossett,

33 F.4th 433 (7th Cir. 2022) ..........................22, 23

Salatino v. Chase,

939 A.2d 482 (Vt. 2007) .......................................14

Senne v. Kansas City Royals Baseball Corp.,

934 F.3d 918 (9th Cir. 2019)................................12

Teva Pharmaceuticals USA, Inc. v. Sandoz,

Inc.,

574 U.S. 318 (2015) ..............................................17

U.S. Bank National Association ex rel.

CWCapital Asset Management LLC v.

Village at Lakeridge, LLC,

138 S. Ct. 960 (2018)............................................16

Universities Superannuation Scheme Ltd. v.

Petróleo Brasileiro S.A. (In re Petrobras

Securities),

862 F.3d 250 (2d Cir. 2017) ..................... 12, 14, 15

Van v. LLR, Inc.,

61 F.4th 1053 (9th Cir. 2023) ..............................12

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338

(2011) ................ 2-3, 14-15, 19-20, 26-27, 29-31, 34

TABLE OF AUTHORITIES—Continued

Page(s)

Wolin v. Jaguar Land Rover North America,

LLC,

617 F.3d 1168 (9th Cir. 2010).................... 9, 11, 14

Yates v. Collier,

868 F.3d 354 (5th Cir. 2017)..........................23, 24

STATUTES

8 U.S.C. § 1231(g)(1) ...................................................4

28 U.S.C. § 1254(1)......................................................1

OTHER AUTHORITIES

Samuel L. Bray, Multiple Chancellors:

Reforming the National Injunction,

131 Harv. L. Rev. 417 (2017) ...............................33

Zechariah Chafee, Jr., Some Problems of

Equity, Thomas M. Cooley Lectures 2d

(1950) ....................................................................15

Duane Morris LLP, Class Action Review—

2023 (2023), https://www.duanemorris

classactionreview.com .........................................17

Fed. R. Civ. P. 23(a)(2) ..........................................1, 20

Fed. R. Civ. P. 23(f) .....................................................1

Robert H. Klonoff, The Decline of Class

Actions, 90 Wash. U. L. Rev. 729 (2013) .............14

Bryan Lammon, An Empirical Study of ClassAction Appeals, 22 J. App. Prac. & Process

283 (2022) .......................................................16, 17

2 Joseph M. McLaughlin, McLaughlin on

Class Actions (19th ed. 2022) ........................13, 16

xii

TABLE OF AUTHORITIES—Continued

Page(s)

David C. Miller, Abuse of Discretion and the

Sliding Scale of Deference: Restoring the

Balance of Power Between Circuit Courts

and District Courts for Rule 23 Class

Certification Decisions in Oil and Gas

Royalty Litigation, 103 Iowa L. Rev. 1811

(2018) ..............................................................13, 15

5 James Wm. Moore et al., Moore’s Federal

Practice – Civil (2023) ..........................................13

Richard A. Nagareda, Class Certification in the

Age of Aggregate Proof, 85 N.Y.U. L. Rev. 97

(2009) ....................................................................30

3 William Rubenstein, Newberg & Rubenstein

on Class Actions (6th ed. 2022) ...........................13

U.S. Immigration and Customs Enforcement,

Performance-Based National Detention

Standards 2011(revised Dec. 2016),

https://www.ice.gov/doclib/detentionstandards/2011/pbnds2011r2016.pdf ....................5

Tobias Barrington Wolff, Discretion in Class

Certification, 162 U. Pa. L. Rev. 1897

(2014) ..............................................................13, 16

PETITION FOR A WRIT OF CERTIORARI

Petitioner CoreCivic, Inc. respectfully petitions

this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS BELOW

The amended opinion of the court of appeals on

rehearing (App. 1a-40a) is reported at 60 F.4th 437.

The order of the court of appeals denying rehearing

(App. 2a) is available at 60 F.4th 437. The opinion of

the district court granting class certification (App.

41a-120a) is available at 2020 WL 1550218. The

opinion of the district court denying reconsideration

is available at 2021 WL 120874.

JURISDICTION

The court of appeals entered its judgment on June

3, 2022 (App. 1a-2a) and issued its amended opinion

and denied rehearing on December 20, 2022 (App. 2a).

On February 24, 2023, Justice Kagan extended the

time to file this petition through April 19, 2023. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Federal Rule of Civil Procedure 23(a) provides that

“[o]ne or more members of a class may sue or be sued

as representative parties on behalf of all class

members only if,” among other things, “there are

questions of law or fact common to the class.” Fed. R.

Civ. P. 23(a)(2). Rule 23(f) provides that “[a] court of

appeals may permit an appeal from an order granting

or denying class-action certification under this rule.”

Fed. R. Civ. P. 23(f).

INTRODUCTION

In recent years, this Court has emphasized that

certification of a class action is an “exception to the

usual rule” of individual adjudication and must rest

on “rigorous analysis.” Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 348, 350-51 (2011) (citations

omitted). This petition addresses the Ninth Circuit’s

disregard of those admonitions. On two legal issues

at the heart of class-action practice, the decision

below follows distorted Ninth Circuit precedent that

conflicts with the decisions of other courts of appeals

and eases certification of dubious classes. Certiorari

is warranted to ensure that requests for class

certification are analyzed under the same legal rules

across the country.

First, the decision below implicates a circuit split

as to the proper standard of appellate review for classcertification rulings. For over a decade, the Ninth and

Second Circuits have applied an unabashedly onesided version of abuse-of-discretion review expressly

granting “noticeably more deference” to district court

rulings granting class certification than to decisions

denying class certification. App. 7a (emphasis added)

(citation omitted). That results-oriented standard

directly conflicts with the evenhanded approach

applied by all other courts of appeals. And it is plainly

wrong. Neither the Ninth nor Second Circuit has ever

offered a reasoned justification for giving more

deference to pro-certification decisions, and none

exists. Easing the standard of review where the

district court grants class certification treats

certification as the rule rather than the exception. It

has no basis in Rule 23 or this Court’s precedent, and

it raises serious due-process and fairness concerns.

Second, the decision below is the latest in a series

of exceptionally lax Ninth Circuit commonality

determinations under Rule 23(a). In Wal-Mart, this

Court emphasized that a class action resting on

allegations of the defendant’s alleged “policy” must be

backed by “‘[s]ignificant proof’” that the policy

actually “ties all [of the class members’] claims

together.” 564 U.S. at 353, 357 (alteration in original)

(citation omitted). Most circuits therefore require

significant proof that an alleged policy is “consistently

and uniformly applied” to the members of the

proposed class. Parent/Professional Advocacy League

v. City of Springfield, 934 F.3d 13, 29 (1st Cir. 2019).

The Ninth Circuit has repeatedly flouted Wal-Mart’s

commonality test by certifying classes based on an

alleged “policy” without any proof that the policy is

uniformly applied to putative class members.

Here, the Ninth Circuit’s flawed Rule 23

jurisprudence led it to affirm multiple classes that

never should have been certified. Respondents allege

that CoreCivic maintains an unlawful policy of

requiring immigration detainees to clean the common

spaces of detention facilities.

They sought

certification of multiple classes, including a

nationwide class of detainees held in 24 different

facilities across the country. The district court found

that CoreCivic’s written policies were ambiguous at

best, and respondents’ only additional evidence

supporting commonality was the testimony of four

detainees about how those policies were applied at a

single facility.

Such evidence of a purportedly

common “policy” is far less weighty than the proof this

Court rejected as insufficient in Wal-Mart. As Judge

VanDyke and five of his colleagues noted in their

dissent from denial of rehearing en banc, the Ninth

Circuit “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.” App. 34a.

The Ninth Circuit affirmed the district court’s

class certification ruling only by applying its “highly

deferential” pro-certification standard of review

(which the court invoked three times) and declining to

require significant proof that the policies in dispute

were uniformly applied to all class members. App.

10a. That decision implicates two circuit splits and

embraces a mode of class-certification analysis that

defies Wal-Mart. Certiorari is warranted.

STATEMENT OF THE CASE

A. CoreCivic’s Detention

Sanitation Policy

Facilities

And

The immigration laws sometimes require the

federal government to detain people who have

entered the country unlawfully. To discharge that

obligation,

U.S.

Immigration

and

Customs

Enforcement (ICE) often relies on private companies

to provide “appropriate places of detention for aliens

detained pending removal or a decision on removal.”

8 U.S.C. § 1231(g)(1). During the class period,

CoreCivic operated 24 such facilities, located in 11

states, including two different facilities in California.

App. 3a.

ICE has promulgated mandatory detention

standards,

including

the

Performance-Based

National Detention Standards, that prescribe

“personal housekeeping” requirements for detainees

as to their “immediate living areas,” as well

as disciplinary standards for refusals to comply

with personal housekeeping requirements. U.S.

Immigration

and

Customs

Enforcement,

Performance-Based National Detention Standards

2011, at 406 (revised Dec. 2016), https://www.ice.gov/

doclib/detention-standards/2011/pbnds2011r2016.pdf

(emphasis omitted). And they require that detention

facilities offer voluntary work programs to detainees.

Id. at 405.

Consistent with those standards, CoreCivic

maintains a Sanitation and Hygiene Policy that

requires all detainees to “perform a daily cleaning

routine of their cells” (their “assigned living area”).

App. 156a-57a. A detainee can be disciplined if they

refuse to clean their assigned living areas. Id. at 96a.

Detainees must also help “maintain[]” common living

areas “in a clean and sanitary manner” by not leaving

trash, “[t]owels, blankets, clothing, or any personal

belongings” in common areas, and by keeping “walls

in the common area . . . free of writing.” Id. at 154a.

As ICE requires, CoreCivic also operates a

voluntary work program through which detainees can

earn an allowance by volunteering to, for example,

work in the kitchen or laundry room, or as a cleaning

porter. Id. at 128a-29a. Participants are called

“[d]etainee/inmate workers.” Id. at 154a (emphasis

added). They “perform the daily cleaning routine of

the common area” by removing trash, sweeping and

mopping floors, and cleaning and scrubbing bathroom

fixtures. Id. at 154a-55a.

CoreCivic’s Sanitation and Hygiene Policy thus

imposes different duties on detainees depending on

whether they volunteer for the work program. As

CoreCivic’s managing director of operations and nine

supervisory officials at various CoreCivic detention

facilities averred below, the policy “does not . . .

require” non-participating detainees “to clean up

after other detainees in the common living areas,” but

“only requires detainees to clean up after themselves

in the common living areas.” Id. at 163a. And even if

a detainee creates a mess in the common living area,

“[d]etainees participating in the [Volunteer Work

Program] will clean up the mess if a detainee refuses

to do so.” Id.; see also, e.g., id. at 172a, 184a.

B. Respondents’ Claims And Motion For

Class Certification

Respondents are two former ICE detainees at

CoreCivic’s Otay Mesa Detention Center in San

Diego, California. In 2017 they sued CoreCivic,

asserting that CoreCivic had a “uniform policy” of

requiring “ICE detainees to clean areas of CoreCivic

facilities beyond their immediate living area under

threat of discipline” in violation of the federal

Trafficking Victims Protection Act (TVPA) and the

California Trafficking Victims Protection Act

(CTVPA). 7-ER-1551.

Based on that allegedly nationwide policy,

respondents later moved to certify two classes of

detainees who had allegedly been forced to “clean[ ]

areas of the [CoreCivic] facilities above and beyond

the personal housekeeping tasks enumerated in the

ICE PBNDS [Performance-Based National Detention

Standards].” 7-ER-1557. This included a “National

Forced Labor Class” composed of all ICE detainees

who had been detained at a CoreCivic facility in the

United States between 2008 and the present; and a

“CA Forced Labor Class” composed of all ICE

detainees who had been detained at CoreCivic’s

California facilities. Id. Respondents also sought

certification of a “CA Labor Law Class” comprising all

ICE detainees who participated in voluntary work

programs at CoreCivic’s California facilities. Id.

Respondents sought restitution, treble damages, and

punitive damages. 12-ER-2973.

In advance of their class-certification motion,

respondents received extensive class discovery,

including the names and last known addresses of over

470,000 ICE detainees who had been housed at

CoreCivic facilities nationwide between 2013 and

2018. Dkt. 68 at 12, No. 17-01112 (S.D. Cal.). Yet, in

support of class certification, respondents presented

only four declarations from ICE detainees who had

been housed at the same Otay Mesa facility where

respondents had been housed—two of which came

from respondents themselves.

Using identical language, respondents asserted

that while Otay Mesa detainees are “required to keep

their immediate living areas clean,” there were also

“many instances of when detainees . . . would have to

work to clean the common areas in the living pod

beyond just maintaining their own living area” under

threat of punishment. App. 128a, 138a. The two

other declarants asserted—in identical language, and

without elaboration—that during their detention at

Otay Mesa, they were likewise coerced to “perform[ ]

cleaning tasks [of] communal and private areas

without payment.” Id. at 146a, 150a. Respondents

did not present any testimonial or documentary

evidence regarding the application of CoreCivic’s

sanitation or disciplinary policies in this way at any

CoreCivic facility other than Otay Mesa.

CoreCivic opposed certification on multiple

grounds, including the failure to satisfy Rule 23(a)’s

commonality requirement and Rule 23(b)(3)’s

predominance requirement.

As to the former,

CoreCivic argued that respondents failed to establish

“that all members of th[e] Class are subject to the

same sanitation and disciplinary policies.” 3-ER-453.

As CoreCivic noted, “the only evidence [respondents]

have to support their claim that detainees are

actually forced to clean common areas . . . are the

declarations of four detainees [at the single Otay

Mesa facility].” 3-ER-454. CoreCivic explained that

those four declarations do not constitute significant

proof of such a policy as to more than a million

detainees scattered across “24 [different] facilities”

nationwide, or even as to the thousands of detainees

in CoreCivic facilities in California. 3-ER-454-55.

That evidentiary defect meant that respondents’

nationwide forced-labor class and California forcedlabor class flunked Rule 23(a). Id.

The district court nonetheless certified a

nationwide forced-labor class, a California forcedlabor class, and a California labor-law class. As to

commonality and predominance, the district court

acknowledged that the content of CoreCivic’s

sanitation policies was “not clear from the face of the

policies.” App. 94a. It further noted that there was a

“dispute of fact” regarding the content and application

of CoreCivic’s policies, given that the declarations of

CoreCivic officials at several facilities established

that “the sanitation policies did not require detainees

to clean up after others,” but that “several detainees”

at Otay Mesa “testified that they were required . . . to

clean common areas.” Id. at 95a. Yet the district

court held that it “cannot resolve factual disputes of

this nature at this stage,” so it concluded that, “for

purposes of class certification, Plaintiffs sufficiently

have established that [CoreCivic] instituted uniform

sanitation and disciplinary policies that were applied

class-wide.” Id. at 95a-97a. It further held that

individual questions of causation did not predominate

over that common question. Id. at 111a-14a.

CoreCivic sought and obtained interlocutory

review pursuant to Rule 23(f).

C. The Ninth Circuit’s Decision

The Ninth Circuit affirmed in an opinion that

repeatedly stressed the “significant deference” owed

to the district court. App. 2a; see also id. at 7a, 10a.

As the panel explained, Ninth Circuit precedent

prescribes that class-certification determinations are

reviewed for abuse of discretion, and that in

“reviewing a grant of class certification, we accord the

district court noticeably more deference than when we

review a denial of class certification.” Id. at 7a

(emphasis added) (quoting Wolin v. Jaguar Land

Rover N. Am., LLC, 617 F.3d 1168, 1171 (9th Cir.

2010)). The panel offered no justification for placing

its thumb on the scale in favor of class certification.

The panel then turned to commonality for the

California forced-labor class. Whereas the district

court had found that the meaning of CoreCivic’s

written policies was not “clear,” the Ninth Circuit

reasoned that the “policies appear to go beyond those

minimal tidying responsibilities laid out in the ICE

Standards.” Id. at 9a. It then noted that the

“persuasive weight of the text of these policies is

augmented by the statements of ICE detainees

themselves,” and that a CoreCivic manager had

testified that CoreCivic facilities cannot opt out of

CoreCivic policies. Id.

The panel recognized that the written policies

themselves did not establish commonality. Id. at 9a-

10a. But it observed that respondents had adduced

“the written policies as well as the testimony of [the

four] former ICE detainees,” and it concluded that in

light of “the highly deferential” standard applied to

the district court’s determination, respondents had

provided “significant proof of [a] class-wide policy.”

Id. at 10a. Without further analysis, the Ninth

Circuit held that its decision on commonality for the

California forced-labor class also supported

certification for the nationwide class. Id. at 13a. It

then concluded that the district court did not abuse

its discretion in holding that common questions

predominate over individual questions, partly

because the TVPA does not require “a subjective,

individualized inquiry” as to causation, and partly

because CoreCivic’s common policies gave rise to a

class-wide inference of causation. Id. at 13a-14a. The

Ninth Circuit also affirmed the certification of the

California labor-law class. Id. at 15a-21a.

The Ninth Circuit denied rehearing en banc, with

Judges VanDyke, Ikuta, Callahan, Bennett, R.

Nelson, and Bumatay dissenting. Judge VanDyke’s

opinion noted that the panel erred with respect to

Rule 23(a)’s commonality requirement. Specifically,

the panel had “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.” Id. at 34a.

As Judge VanDyke explained, respondents’

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,” that is, at Otay Mesa.

Id. at 38a. But that hardly provides significant proof

of commonality as to the hundreds of thousands of

detainees spread “across all CoreCivic facilities,” and

the “panel could not properly assume that one

facility’s unwritten practice was adopted and applied

in every one of CoreCivic’s other facilities.” Id. Judge

VanDyke noted that he “would say that the panel here

repeated our error in [Wal-Mart v.] Dukes, but it did

worse. At least in Dukes, we had anecdotal evidence

from multiple locations nationwide.” Id. at 40a.

Judge VanDyke concluded that the panel “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.” Id. at 34a.1

REASONS FOR GRANTING THE PETITION

I. The Standard-Of-Review Issue Warrants

Certiorari

A. The Circuits Are Split Over The Standard

Of Review In Class-Certification Appeals

The Ninth Circuit expressly rested its decision

below on the court’s “highly deferential” version of

abuse-of-discretion review, App. 10a—under which

district court rulings granting class certification must

be given “noticeably more deference” than “denial[s]

of class certification.” Id. at 7a (quoting Wolin v.

Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1171

Judge VanDyke and four colleagues also dissented from

the panel’s conclusion on predominance. App. 32a-33a. The

dissent explained that the panel effectively “remov[ed] the

TVPA’s actual causation requirement” and replaced it with

“probable causation applied to an abstract reasonable person.”

Id. at 33a.

(9th Cir. 2010)). That one-sided standard of review is

a fixture of the Ninth Circuit’s Rule 23 case law. See,

e.g., id. at 7a-8a; Van v. LLR, Inc., 61 F.4th 1053, 1062

(9th Cir. 2023); Senne v. Kan. City Royals Baseball

Corp., 934 F.3d 918, 926 (9th Cir. 2019). It also

implicates an entrenched circuit split.

Like the Ninth Circuit, the Second Circuit

“accord[s] the district court noticeably more

deference” when reviewing a grant of class

certification than when reviewing a denial of class

certification. Levitt v. J.P. Morgan Sec., Inc., 710 F.3d

454, 464 (2d Cir. 2013) (quoting Millowitz v. Citigroup

Glob. Mkts., Inc. (In re Salomon Analyst Metromedia

Litig.), 544 F.3d 474, 480 (2d Cir. 2008)). This rule

has prevailed in the Second Circuit for thirty years,

since Lundquist v. Security Pacific Automotive

Financial Services Corp., 993 F.2d 11, 14 (2d Cir.) (per

curiam), cert. denied, 510 U.S. 959 (1993). See

Universities Superannuation Scheme Ltd. v. Petróleo

Brasileiro S.A. (In re Petrobras Sec.), 862 F.3d 250,

260 n.11 (2d Cir. 2017); see also, e.g., Haley v.

Teachers Ins. & Annuity Ass’n of Am., 54 F.4th 115,

120 (2d Cir. 2022) (applying the rule); Barrows v.

Becerra, 24 F.4th 116, 130 (2d Cir. 2022) (same);

Roach v. T.L. Cannon Corp., 778 F.3d 401, 405 (2d

Cir. 2015) (same).

No other circuit applies that one-sided standard.

Rather, every other circuit applies an evenhanded

abuse-of-discretion standard that does not vary

depending on whether the district court granted or

denied certification.

See, e.g., Matamoros v.

Starbucks Corp., 699 F.3d 129, 138 (1st Cir. 2012)

(“We review the grant or denial of class certification

for abuse of discretion.”); Newton v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 259 F.3d 154, 165 (3d

Cir. 2001) (same); Bridging Cmtys. Inc. v. Top Flite

Fin. Inc., 843 F.3d 1119, 1124 (6th Cir. 2016) (same),

cert. denied, 138 S. Ct. 80 (2017); Cordoba v.

DIRECTV, LLC, 942 F.3d 1259, 1267 (11th Cir. 2019)

(same).

This circuit split is widely recognized in the

leading class-action treatises.

See 3 William

Rubenstein, Newberg & Rubenstein on Class Actions

§ 7.53 & n.7 (6th ed. 2022) (“Two circuits (the Second

and the Ninth) show more deference to a grant of class

certification than a denial of class certification.”); 2

Joseph M. McLaughlin, McLaughlin on Class Actions

§ 7.15 & nn.29-31 (19th ed. 2022) (noting the Second

and Ninth Circuits’ rule and stating that “[o]ther

courts do not employ a less deferential standard to a

denial of certification”); see also 5 James Wm. Moore

et al., Moore’s Federal Practice – Civil § 23.88[5] &

n.43 (2023). Scholars have drawn attention to the

split as well. See Tobias Barrington Wolff, Discretion

in Class Certification, 162 U. Pa. L. Rev. 1897, 190304 (2014); David C. Miller, Abuse of Discretion and the

Sliding Scale of Deference: Restoring the Balance of

Power Between Circuit Courts and District Courts for

Rule 23 Class Certification Decisions in Oil and Gas

Royalty Litigation, 103 Iowa L. Rev. 1811, 1828

(2018).

Needless to say, there is no reason for federal

courts of appeals to apply different standards when

reviewing Rule 23 certification rulings. Only this

Court can resolve the split.

B. The Ninth Circuit’s Pro-Certification

Standard Of Review Is Wrong

Neither the Second nor the Ninth Circuit has ever

provided a reasoned explanation for their imbalanced

deference regime. Instead, as one Second Circuit

panel noted, the idea “apparently arose from a

misreading of earlier Second Circuit cases.”

Petrobras, 862 F.3d at 260 n.11. And “no Second

Circuit case provides any reasoning or justification for

the idea that we review denials of class certification

with more scrutiny than grants.” Id.; see also

Salatino v. Chase, 939 A.2d 482, 485 & n.2 (Vt. 2007)

(rejecting Second Circuit rule and noting that no

Second Circuit case offers “any reason that a denial of

class certification should be scrutinized more closely

than a grant”).

As the Petrobras panel also emphasized, a proplaintiff abuse-of-discretion standard “is out of step

with recent Supreme Court authority” emphasizing

“that courts must ‘conduct a rigorous analysis’ to

determine whether putative class plaintiffs meet Rule

23’s requirements.” 862 F.3d at 260 n.11 (quoting

Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013), and

citing Wal-Mart, 564 U.S. at 351). Indeed, the panel

went so far as to say that the distinction between

review of pro-plaintiff and pro-defendant certification

rulings is “one that need not and ought not be drawn.”

Id. Nonetheless, the Second Circuit has continued to

apply its unbalanced test. See Haley, 54 F.4th at 120;

Barrows, 24 F.4th at 130.

The Ninth Circuit uncritically adopted the Second

Circuit’s rule in Wolin, 617 F.3d at 1171 (quoting In

re Salomon, 544 F.3d at 480). But in the years since

then, it has never provided any justification for the

rule whatsoever. And none exists. Rule 23 is

“neutral” between the parties, granting plaintiffs and

defendants an equal opportunity to challenge a

district court’s certification order. See Robert H.

Klonoff, The Decline of Class Actions, 90 Wash. U. L.

Rev. 729, 740 (2013) (noting Rule 23(f)’s “neutral

language”); Miller, 103 Iowa L. Rev. at 1825, 1828-29.

There is no textual justification for systematically

favoring class representatives in class-certification

appeals.

The notion that a district court decision certifying

a class should categorically receive less scrutiny on

appeal than a decision denying class certification

turns Rule 23 on its head. Class adjudication is the

“exception,” not the rule, in an adversarial system

built around individual litigants. Wal-Mart, 564 U.S.

at 348 (citation omitted). Yet by specifically easing

the standard of review where the district court grants

class certification, the Ninth and Second Circuits

treat class certification as the rule rather than the

exception. As the Petrobras panel recognized, 862

F.3d at 260 n.11, giving extra deference to a grant of

class certification flouts this Court’s repeated

instruction that courts must conduct “a rigorous

analysis” to determine whether “the prerequisites of

Rule 23(a) have been satisfied.” Comcast, 569 U.S. at

33 (quoting Wal-Mart, 564 U.S. at 350-51). Reviewing

courts must verify that the trial court did so, not

rubber-stamp the certification of a class while more

closely scrutinizing the denial of class certification.

A biased standard of review that categorically

favors representative parties raises serious dueprocess concerns. As to absent class members, class

actions abridge the “requirement that a man ought to

have his day in court” with respect to his individual

claims, Zechariah Chafee, Jr., Some Problems of

Equity, Thomas M. Cooley Lectures 2d, at 203 (1950),

and certification of a class action is appropriate only

where reviewing courts have applied exacting

scrutiny to the case for certification presented by

putative class representatives.

More generally,

“equal—not unequal—justice under law is the goal of

our society.” Associated Press v. United States, 326

U.S. 1, 6 (1945). The Second and Ninth Circuit’s procertification standard, by contrast, systematically

disadvantages both class-action defendants and

absent class members.2

Unsurprisingly, commentators have widely

panned the Ninth and Second Circuits’ approach. As

one scholar noted, the standard of review applied in

the Ninth and Second Circuits is “strange[ ],” and has

“no[ ] apparent” justification. Wolff, 162 U. Pa. L.

Rev. at 1903-04. A treatise has described the rule as

“a vestige of [a] certification-friendly approach” that

“must be considered obsolete under the Supreme

Court’s recent pronouncements requiring denial of

certification unless a specific showing has been made

demonstrating compliance with each of the

requirements of Rule 23.” 2 McLaughlin on Class

Actions § 7:15. This unbalanced approach should fall.

C. This Issue Is Important, And This Case Is

The Right Vehicle To Address It

Standards of review are implicated in every case;

they are the lens through which the court of appeals

analyzes the district court’s decision. For that reason,

this Court regularly grants certiorari to resolve

questions about the appropriate standard of review in

various contexts. See, e.g., U.S. Bank Nat’l Ass’n ex

rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge,

The one-sided standard of review is especially

concerning given that the Ninth Circuit is less likely than any

other circuit to grant Rule 23(f) petitions submitted by a

defendant. See Bryan Lammon, An Empirical Study of ClassAction Appeals, 22 J. App. Prac. & Process 283, 310 tbl. 5 (2022).

LLC, 138 S. Ct. 960, 963 (2018) (status as bankruptcy

“insider”); Teva Pharms. USA, Inc. v. Sandoz, Inc.,

574 U.S. 318, 322 (2015) (factfinding in connection

with patent claim construction); Highmark Inc. v.

Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 560-61

(2014) (determination that patent litigation is

“objectively baseless” for purpose of attorneys’ fees);

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997)

(Daubert rulings); Icicle Seafoods, Inc. v. Worthington,

475 U.S. 709, 710 (1986) (status as a “seaman” under

the Fair Labor Standards Act).

Resolving this particular circuit conflict is

especially important because the two courts on the

short side of the split—the Ninth and Second

Circuits—are the federal judiciary’s leading classaction appellate courts. In recent years, those circuits

have decided over 46% of all Rule 23(f) petitions. See

Bryan Lammon, An Empirical Study of Class-Action

Appeals, 22 J. App. Prac. & Process 283, 303, 310 tbl.5

(2022). Last year, they issued more decisions in class

action and collective litigation cases—110 and 62

decisions in the Ninth and Second Circuits,

respectively—than any other circuit. See Duane

Morris LLP, Class Action Review—2023, at 422-48

(2023), https://www.duanemorrisclassactionreview.com.

The standard of review for class-certification

decisions carries special weight in those circuits, and

it is vital that those circuits should apply the correct

standard of review.

This case is also the ideal vehicle for resolving this

question. It is not always clear whether the standard

of review affected the outcome of a case. But here it

is clear: The Ninth Circuit panel invoked its biased

deference rule sua sponte, and it repeatedly relied on

that rule in multiple places in its opinion. App. 2a, 7a,

10a. Throughout, the panel made absolutely clear

that it was affirming the district court’s finding of

commonality “[i]n view of the highly deferential”

standard of review. Id. at 10a. And it twice

emphasized the standard of review in affirming the

district

court’s

erroneous

predominance

determination. Id. at 13a-14a.

In short, the standard-of-review question

implicates a clear and recognized circuit split; it is

important for class-action jurisprudence in the

circuits, especially in view of the central role played

by the Ninth and Second Circuits with respect to

class-action litigation; and it is squarely presented in

this case. This Court should grant certiorari to

resolve it.

II. The Rule 23(a) Commonality Issue Warrants

Certiorari

Beyond embracing a one-sided standard of review,

the Ninth Circuit endorsed a deeply flawed approach

The one-sided abuse-of-discretion standard of review

appears to have led the Ninth Circuit to uphold, as part of its

predominance analysis, the district court’s plainly erroneous

holding that the the TVPA does not require “a subjective,

individualized inquiry” as to causation. App. 13a; see also id. at

111a. As Judge VanDyke’s dissent pointed out, the panel and

the district court reached this flawed conclusion by conflating

the TVPA’s objective “serious harm” requirement set forth in 18

U.S.C. § 1589(c)(2) with its “separate”—and inherently

individualized—“requirement [in 18 U.S.C. § 1589(a)] that such

harms actually cause a victim to labor or provide services.” Id.

at 28a; see also id. at 30a-34a (noting that this holding creates a

circuit split). The Ninth Circuit likewise relied on the standard

of review in upholding the district court’s erroneous application

of a “class-wide causation inference” that CoreCivic’s policies

were the reason every single class member cleaned common

areas outside their own immediate living space. Id. at 13a-14a.

to commonality under Rule 23(a). Specifically, the

court found that CoreCivic’s policies presented a

common issue for both of the forced labor classes, even

without significant proof that those policies are

uniformly applied as alleged by respondents, either

nationwide or across California. As the six dissenting

judges recognized, this decision is the latest in a long

line of Ninth Circuit cases refusing to take seriously

this Court’s seminal decision in Wal-Mart. And it

cleaves the Ninth Circuit from other courts of appeals

that faithfully apply Wal-Mart’s significant-proof

requirement to ensure that a policy is uniformly

applied and causes “the same injury” to class

members. 564 U.S. at 349-50 (citation omitted).

A. The Circuits Are Split On The Standard

For Proving That A Defendant’s “Policy”

Presents A Common Issue

Class actions often challenge a defendant’s

purported policy or practice across multiple facilities

and jurisdictions.

At the certification stage,

commonality under Rule 23(a) requires that the policy

or practice actually exist and that it be applied to

class members the same way across the board: If so,

the case presents a common issue potentially

susceptible to class-wide resolution; but if not, a class

action will devolve into a multiplicity of mini-trials.

At the class-certification stage, most circuits

require the representative plaintiff to adduce

significant proof that the policy or practice is

“uniformly applied” in a way that imposes similar

harms on each individual class member.

Parent/Professional Advocacy League v. City of

Springfield, 934 F.3d 13, 29 (1st Cir. 2019). But the

Ninth Circuit has persistently failed to require

significant proof of uniform application, and did not

purport to assess uniformity here. Instead, as Judge

VanDyke noted, the Ninth Circuit held that evidence

of “written policies,” coupled with “anecdotal

evidence” as to the application of such policies with

respect to “a small fraction of the class,” suffices for

purposes of Rule 23(a). App. 34a. That approach is

an outlier that warrants certiorari.

1. In Wal-Mart, this Court reiterated that class

adjudication is proper only when the class

representative has “‘the same interest and suffer[s]

the same injury” as the class members.’” 564 U.S. at

348-49 (quoting E. Tex. Motor Freight Sys. Inc. v.

Rodriguez, 431 U.S. 395, 403 (1977)). To that end,

Rule 23(a) requires a showing of commonality—that

there are “questions of law or fact common to the

class,” Fed. R. Civ. P. 23(a)(2)—in order for a class to

be certified. A class action must rest on a “common

contention” that is “capable of classwide resolution,”

meaning that “determination of its truth or falsity

will resolve an issue that is central to the validity of

each one of the claims in one stroke.” Wal-Mart, 564

U.S. at 350.

Wal-Mart further emphasized that Rule 23 is not

a “mere pleading standard.” Id. It requires the

representative plaintiff “to prove that there are in fact

. . . common questions of law or fact.” Id. And,

crucially, where a representative plaintiff seeks to

hold a defendant liable for a “general policy” on behalf

of a class, the plaintiff must adduce “[s]ignificant

proof” of a policy that “ties all [the class members’] . . .

claims together.” Id. at 353, 357 (alteration in

original) (citation omitted).

In the wake of Wal-Mart, federal courts of appeals

across the country came to recognize its core

principle: A representative plaintiff for a putative

class cannot obtain class certification merely by

alleging that the defendant has a policy or practice

that affects all of the members of the class. Rather,

as the First Circuit has noted, the plaintiff must

adduce significant proof that the defendant has a

“uniformly applied, official policy,” or a “well-defined

practice (or set of practices) that is consistently and

uniformly applied,” and that “drives” the class

members’ causes of action in unison because it causes

“similar . . . effects . . . across the class.”

Parent/Professional Advocacy League, 934 F.3d at 29

(emphasis added). The Fourth Circuit has likewise

recognized that it is the “uniformity of shared

injuries” caused by a defendant’s policy that makes

such a policy a proper basis for a finding of

commonality. Brown v. Nucor Corp., 785 F.3d 895,

910 (4th Cir. 2015).

The Third Circuit’s recent decision in Allen v.

Ollie’s Bargain Outlet, Inc., provides a good example

of this rule in operation. 37 F.4th 890 (3d Cir. 2022).

In that case, a defendant retailer operating “over four

hundred retail stores” across 29 states was sued by

two plaintiffs who use wheelchairs and who shopped

at two of the defendant’s stores in Pennsylvania. Id.

at 892-93. In those two stores, plaintiffs encountered

“an obstacle course” of “pillars, clothing racks, and

boxes” blocking the aisles. Id. at 892. The plaintiffs

sued under Title III of the Americans with

Disabilities Act, and sought certification of a

nationwide class of “every similarly disabled

individual who shops at any Ollie’s store in the United

States.” Id. Plaintiffs asserted that Ollie’s had

adopted nationwide “visual store standards” that

“emphasize placing as much stock as possible on the

sales floor,” and that this company-wide policy was

the cause of the inaccessible aisles that plaintiffs had

encountered. Id. at 902.

The Third Circuit held that plaintiffs had failed to

prove commonality for a nationwide class. Id. at 901.

As the court noted, “[i]t is not enough that Ollie’s has

corporate policies and that some or all stores in

Pennsylvania pay inadequate attention to aisle

accessibility. Stitching together a corporate-wide

class requires more.” Id. Specifically, it requires a

showing that the defendant’s policy is uniformly

applied such that it causes a common injury for all

class members—the imposition of inaccessible aisles

“across Ollie’s stores in the United States.” Id. at 902.

And in Ollie’s, the plaintiffs had not made that

showing because the only substantial “proof” that the

defendant’s policy “cause[d] inaccessible aisles” was

“limited to stores in Pennsylvania.” Id. The only

evidence the plaintiffs adduced “from outside

Pennsylvania” were a few “customer emails reporting

inaccessible aisles,” and the Third Circuit found that

those scattered “anecdotes” did not amount to proof of

a uniform policy at “over four hundred stores in

twenty-nine states.” Id. The Third Circuit therefore

rejected plaintiffs’ nationwide class. Id.

Two recent class actions arising in the prisonlitigation context illustrate the same principle. In

Ross v. Gossett, the Seventh Circuit approved

certification of a class of Illinois prisoners held at four

Illinois correctional facilities. 33 F.4th 433, 435, 442

(7th Cir. 2022). The district court recognized that

commonality was satisfied because each of the

defendant prison supervisors had “acted pursuant to

a common policy and implemented the same or

similar procedures at each of the four institutions,

and . . . the [plaintiffs’] challenge was to the

constitutionality of that common plan as enacted.” Id.

at 437. The Seventh Circuit affirmed because the

defendants had “concede[d] that the [challenged

practices] were conducted according to a uniform plan

created and implemented by the [defendants], and

that the plan was executed in a uniform manner

under their supervision.” Id. at 438. Thus, the

evidence that had been “lacking in Wal-Mart—that

the alleged discriminatory actions were undertaken

pursuant to a uniform policy—[wa]s not only present

in [Ross], it [was] undisputed.” Id.

A recent Fifth Circuit decision concerning a

certified class of prisoners in Texas undertook a

similar analysis. In Yates v. Collier, the district court

certified a class comprising all inmates at a 1,400inmate prison, the Wallace Pack Unit. 868 F.3d 354,

358 (5th Cir. 2017). Plaintiffs claimed that the

summer heat at the prison—where individual

prisoners’ cells were not air-conditioned—gave rise to

an Eighth Amendment violation. Id. In determining

whether the class met the Rule 23(a) commonality

standard, the Fifth Circuit recognized that the

“putative class members are all exposed to essentially

the same temperatures,” and that it was undisputed

that, “absent mitigation measures, every inmate in

the Pack Unit is at a substantial risk of serious harm

due to the heat.” Id. at 362. Defendants argued that

various heat-mitigation measures at the prison

destroyed commonality, because the efficacy of such

measures “will largely depend on the age and health

of each particular individual.” Id. In defendants’

view, class certification was appropriate only if the

plaintiffs proved “that even the youngest, healthiest,

and most acclimatized inmates face a substantial

threat of serious harm despite [defendants’] existing

heat-mitigation measures.” Id. at 363.

The Fifth Circuit did not disagree with defendants’

legal argument.

It held that certification was

appropriate because the policy did inflict uniform

harms across the proposed class: “[T]he district court

found, based on . . . expert testimony, that

[defendants’] heat-mitigation measures . . . were

ineffective to reduce the risk of serious harm to a

constitutionally permissible level for any inmate,

including the healthy inmates.” Id. As the Fifth

Circuit explained, those findings were based on highly

particularized and credible lay and expert witness

testimony, which had led the district court to conclude

that the defendants’ efforts “mitigated the risk of high

temperature for . . . none of” the class members, and

thus that the class members had all suffered the same

harm. Id. at 365.

That kind of detailed investigation into the

implementation of an alleged policy is necessary to

ensure that a defendant’s policy is uniform and has

generated “similar . . . effects . . . across the class,”

Parent/Professional Advocacy League, 934 F.3d at 29,

such that class adjudication is warranted.

2. The Ninth Circuit takes a different approach.

Even after Wal-Mart, the Ninth Circuit has continued

to authorize class certification on the basis of mere

allegations as to the existence of a policy that

purportedly applies uniformly to all members of the

class. It will sometimes treat the adjudication of

those allegations as a merits question, thus certifying

a class to determine whether there is a policy common

to the class—an inversion of the Rule 23 inquiry. And

even when the Ninth Circuit demands proof of a policy

that binds class members together at the class-

certification stage, the standard of proof it imposes is

so lax that it cannot be reconciled with the “significant

proof” standard prescribed by Wal-Mart and adhered

to in other circuits. Instead, the Ninth Circuit is

content—as it was in this case—to certify a class on

the basis of scattered evidence of a “policy” or

“policies” that purportedly govern the class as a

whole, without proof that those policies are uniformly

applied to the members of the class.

Here, for example, the Ninth Circuit held that a

“class-wide

policy”

necessarily

establishes

commonality. App. 8a. But it failed to ask whether

the policy asserted by respondents was uniformly

applied across the dozens of facilities operated by

CoreCivic. Instead, it simply noted that CoreCivic

has adopted written policies, that CoreCivic

managers testified that those policies are “standard

policies,” and that “former ICE detainees” had

testified as to the implementation of those policies.

Id. at 9a-10a. That should have been the beginning—

not the end—of the Ninth Circuit’s analysis.

Had the Ninth Circuit inquired into uniform

application, it would have had to reverse the district

court’s grant of class certification. As noted, the

district court itself recognized that there is varying

evidence regarding the application of CoreCivic’s

policies: On the one hand, CoreCivic officials at

facilities in Arizona, California, Georgia, Ohio, and

Texas averred that “the sanitation policies did not

require detainees to clean up after others.” App. 95a.

On the other hand, “several detainees” at a single

facility (Otay Mesa) “testified that they were required

. . . to clean common areas.” Id.

That is not “[s]ignificant proof” of uniform

application

across

CoreCivic’s

facilities

nationwide. Wal-Mart, 564 U.S. at 353 (alteration in

original) (citation omitted). To the contrary, the

evidentiary record here shows that CoreCivic’s

policies may have been implemented differently at

Otay Mesa than elsewhere. At the very least,

Plaintiffs introduced no proof establishing that the

policy was applied in the same fashion at Otay Mesa

as elsewhere. Yet the district court deferred that

analysis by concluding that it need not “resolve” those

factual questions “at this stage.” App. 95a. And the

Ninth Circuit embraced that determination by

applying its “highly deferential” review of decisions

granting class certification. Id. at 10a; see id. at 7a.

As the en banc dissenters explained, the panel’s

decision was “inconsistent with Rule 23 and [WalMart].” App. 34a.

The panel’s unwillingness to undertake a rigorous

inquiry into uniform application of purported classwide policies reflects a broader pattern in the Ninth

Circuit, even after Wal-Mart. Take, for example,

Jimenez v. Allstate Insurance Co., 765 F.3d 1161 (9th

Cir. 2014), cert. denied, 576 U.S. 1028 (2015). In that

case, the district court certified a class of California

employees who claimed that their employer, Allstate,

had “a practice or unofficial policy of requiring its

claims adjusters to work unpaid off-the-clock

overtime in violation of California law.” Id. at 116263. The Ninth Circuit affirmed on the basis of the

plaintiffs’ claim that Allstate had an “unofficial policy

of discouraging reporting of such overtime,” and that

“[p]roving at trial whether such informal or unofficial

policies existed will drive the resolution” of the class

members’ claims. Id. at 1165-66. The panel waved

away Allstate’s argument that there was no such

policy by reasoning that the argument “is

appropriately made at trial.” Id. at 1166 n.5. But

where an alleged policy of the defendant’s is supposed

to be the “glue” holding the class members’ claims

together, Wal-Mart, 564 U.S. at 352, that policy needs

to be established at the class-certification stage

through “[s]ignificant proof,” id. at 353 (alteration in

original) (citation omitted). To defer consideration of

that proof to the merits stage is to skip over the Rule

23(a) commonality inquiry entirely.

The Ninth Circuit applied the same hands-off

approach on a far larger scale in Parsons v. Ryan, 754

F.3d 657 (9th Cir. 2014), where it approved

certification of a statewide class comprising every

prisoner in the 33,000-prisoner Arizona state prison

system, spread across ten different facilities. It

reasoned that commonality was established because

the district court had “identified 10 statewide . . .

policies and practices to which all members of the

class are subjected.” Id. at 678.

But as Judge Ikuta and five other en banc

dissenters explained, that approach disregarded the

requirement that plaintiffs “share similar potentially

viable claims whose ‘truth or falsity’ can be resolved

one way or the other ‘in one stroke.’” Parsons v. Ryan,

784 F.3d 571, 575 (9th Cir. 2015) (Ikuta, J., dissenting

from denial of rehearing en banc). The plaintiffs in

Parsons had merely alleged the policies, and in the

most conclusory terms. See 754 F.3d at 664. When it

came to proving the existence and uniform

application of such policies, the plaintiffs introduced

evidence showing that the state prison system’s

healthcare practices were actually disuniform: The

expert witnesses on whom plaintiffs relied in securing

class certification testified that the relevant policies

were “centralized” through formal writings, but that

these “written policies and procedures are often

viewed by providers and their supervisors as setting

unrealistic requirements, and therefore are ignored.”

Id. at 669. Yet the Ninth Circuit affirmed class

certification on the basis of that expert testimony,

along with the declarations of the named plaintiffs,

who described their individual experiences with

inadequate prison healthcare. Id. at 683. Judge

Ikuta’s stinging dissent from denial of rehearing en

banc explained that while the record “reveal[ed]

serious systemwide problems with healthcare in the

Arizona prison system,” the certified class was

composed of “a diverse group of prisoners with

different health conditions and needs” who lacked “a

common claim.” Parsons, 784 F.3d at 573. As she

explained, the panel’s decision was “in defiance” of

this Court’s ruling in Wal-Mart. Id.

Things have not improved in the Ninth Circuit

since Parsons. Rather, Parsons has provided a

roadmap for continued evasion of the Rule 23(a)

commonality standard in that Circuit. In 2019, for

example, the Ninth Circuit again affirmed the

certification of a statewide class in Arizona on the

basis of broadly alleged “policies and practices,”

without any significant proof that such policies or

practices bound the plaintiffs together. See B.K. ex

rel. Tinsley v. Snyder, 922 F.3d 957, 968-69 (9th Cir.

2019), cert. denied, 140 S. Ct. 2509 (2020).

In B.K., the district court “certified a class of all

children who are or will be” in the Arizona foster-care

system, on the basis of alleged “state-wide policies

and practices depriv[ing] them of required medical

services, among other things.” Id. at 963. As in

Parsons, those supposed “policies” were simply

generalized allegations of harm: for example,

“excessive caseworker caseloads,” “failure to provide

timely access to healthcare,” “failure to investigate

reports of abuse timely,” and other unspecified

“investigation delays.” Id. at 969. Remarkably, the

district court held—and the Ninth Circuit agreed—

that those vague and disparate theories of harm

presented common issues that could be “litigated in

‘one stroke.’” Id. (quoting Wal-Mart, 564 U.S. at 350).

Under the commonality standard applied in Parsons

and B.K., the Ninth Circuit has endorsed a rule of

virtually automatic class certification in every case

seeking systemwide reform.

This case is the latest installment in that series.

Here, the Ninth Circuit relied repeatedly on Parsons,

see App. 10a-11a (citing Parsons, 754 F.3d at 678).

And—just like in Parsons and B.K.—the Ninth

Circuit failed to critically examine whether the case

involves an actual “class-wide policy.” Indeed, it

never asked or answered the questions that are

required under Rule 23(a), and which are asked in

other circuits:

whether the alleged policy “is

consistently and uniformly applied” class-wide and

“drives” the class members’ claims by causing “similar

. . . effects . . . across the class.” Parent/Professional

Advocacy League, 934 F.3d at 29. This Court should

resolve that divergence in approach.

B. The Decision Below Is Wrong

The Ninth Circuit’s commonality analysis is

indefensible. Under Rule 23(a), a representative

plaintiff must demonstrate that, for purposes of the

litigation, he stands in a similar position to that of the

class members he proposes to represent. The point of

class adjudication is that the claims of all class

members will “generate common answers apt to drive

the resolution of the litigation. Dissimilarities within

the proposed class are what have the potential to

impede the generation of common answers.” WalMart, 564 U.S. at 350 (quoting Richard A. Nagareda,

Class Certification in the Age of Aggregate Proof, 85

N.Y.U. L. Rev. 85, 132 (2009)).

That is why simply pointing to a defendant’s

“policy” does not suffice. A court must still assure

itself that litigation concerning that policy will

generate common answers in resolving the class

members’ claims. A court may gain that assurance

only where the putative class representative shows

that: (1) the policy is real; (2) it is uniformly applied

by the defendant to the members of the class; and

(3) it imposes similar effects on the members of the

class such that they are likely to share common

injuries resulting from that policy.

The alleged “policy” holding together the certified

class in this case clearly flunks that test. As the

district court itself recognized (before erroneously

certifying the class), there is a “dispute of fact” in this

case about the content and application of CoreCivic’s

policies. App. 95a. The district court concluded that

the written CoreCivic policies are “not clear.” Id. at

94a. The declarations of CoreCivic officials at various

facilities tend to establish that CoreCivic’s “policies

did not require detainees to clean up after others.” Id.

at 95a. On the other hand, four detainees at Otay

Mesa “testified that they were required . . . to clean

common areas.” Id. The time to sort through that

factual dispute is at class certification. Yet the

district court and Ninth Circuit utterly failed to

scrutinize respondents’ lack of significant proof that

the policy was uniformly applied throughout all

CoreCivic facilities, such that detainees at every

facility would have been “required . . . to clean

common areas.”4

The practical consequence of the erroneous classcertification here is that proceedings on the merits

will devolve into 24 mini-trials on the application of

CoreCivic’s sanitation policy at each of the facilities

where class members were detained. CoreCivic will

call as witnesses at least all of those officials who

submitted unrebutted declarations at the classcertification stage to prove that each of their facilities

required detainees to clean only their immediate

living areas, and will submit other proof as to the

implementation of its sanitation policies at all of its

facilities.

Rebutting that evidence will require

respondents to adduce facility-by-facility evidence; it

will not be possible for plaintiffs to establish their

class-wide subjection to a uniform policy “in one

stroke.” Wal-Mart, 564 U.S. at 350. There will be no

efficiency gains from litigating respondents’ claims in

a sweeping class action. Rule 23(a) exists precisely to

screen out such cases.

As Judge VanDyke and five of his colleagues

correctly recognized in their dissent from denial of

rehearing en banc, this is not a close case under WalMart. In Wal-Mart, there was “more proof of classwide conduct than the panel had here . . . [including]

[1] a company-wide policy giving managers discretion

in employment decisions, [2] expert testimony

suggesting that Wal-Mart’s culture prejudiced

The Ninth Circuit’s flawed commonality holding also

infected its predominance analysis, which relied on CoreCivic’s

purportedly common policies to draw a “class-wide causation

inference” obviating the need to show causation on an

individualized basis. App. 13a-14a.

women, [3] statistical disparities between promotions

of men and women, and [4] testimony from 120

employees located in different stores nationwide

saying they had experienced discrimination.” App.

39a-40a (VanDyke, J., dissenting from denial of

rehearing en banc).

In this case, by contrast, all the proof that

respondents could generate—after months of class

discovery, including production of the name and

address of every detainee in every CoreCivic facility

for a five-year period—was four declarations

containing “anecdotal evidence from one of dozens of

locations, and corporate policies that are at best

ambiguous.” Id. at 40a. Respondents failed to

marshal anything close to significant proof

establishing commonality under Rule 23(a).

C. The Commonality Issue Is Exceptionally

Important, Especially In The Ninth

Circuit

The decision below is just the latest example of a

Ninth Circuit class-action jurisprudence that has

departed from the core tenets of commonality under

Rule 23(a). Supra at 24-29. Notwithstanding the

objections of various members of the Ninth Circuit

over the years, see, e.g., App. 21a, 34a (VanDyke, J.,

dissenting from denial of rehearing en banc, joined by

five judges); Parsons, 784 F.3d at 572-73 (Ikuta, J.,

dissenting from denial of rehearing en banc, joined by

five judges), the Ninth Circuit has proven unable to

police itself on these matters. Only this Court can

bring the Ninth Circuit into line with this Court’s

precedents.

This Court’s intervention is warranted. As noted

above, by virtue of its sheer size as the most populous

circuit, much of the Nation’s class-action litigation

already flows through the Ninth Circuit. See supra at

17. But the Ninth Circuit’s recurring error as to Rule

23(a) greatly enhances the incentives for forumshopping among representative plaintiffs and

plaintiffs’ counsel, and will have nationwide

consequences if left unchecked. If, as here, plaintiffs

can obtain certification of nationwide classes through

scattered anecdotal evidence, the Ninth Circuit will

see an ever-increasing flow of class-action litigation

challenging all manner of alleged corporate and

governmental policies on a nationwide basis. The

proper application of the Rule 23(a) commonality

standard in most circuits will become meaningless in

the large number of cases in which plaintiffs can

target a national chain or business for its alleged

“policies.” Those cases will simply be brought in the

Ninth Circuit.

The commonality principles at stake in this case

matter not only in large damages actions like this one,

but also in actions for injunctive relief. As the Ninth

Circuit’s decisions in Parsons and B.K. make clear,

the Ninth Circuit’s lax commonality standard is a

windfall for plaintiffs engaged in litigation aimed at

changing public policy through judicial decree. Rule

23 provides the appropriate vehicle for “achieving

broad injunctive relief” for plaintiffs, but only where

its requirements are actually met. Samuel L. Bray,

Multiple Chancellors:

Reforming the National

Injunction, 131 Harv. L. Rev. 417, 475-76 (2017). The

Ninth Circuit’s standard vitiates those requirements,

encouraging ever more creative class definitions

geared at securing overbroad injunctive relief against

public officials and agencies. This case offers the

Court an opportunity to reiterate—and clarify—the

important limits of Rule 23(a).

This case is also the right vehicle for addressing

the Ninth Circuit’s recurring misapplication of Rule

23(a). As in Wal-Mart, which involved a sweeping

nationwide class composed of 1.5 million employees

scattered across Wal-Mart stores nationwide, see 564

U.S. at 357, this case involves a sweeping nationwide

class of more than a million immigration detainees

scattered across dozens of immigration facilities

around the country. And the proof of commonality

here was far weaker than it was in Wal-Mart. App.

39a-40a (VanDyke, J., dissenting from denial of

rehearing en banc).

Certification of a class action under Rule 23 is

supposed to be a significant event, not a routine

procedural step. This case illustrates how far the

Ninth Circuit has strayed from that understanding.

In approving certification of classes where there are

live factual disputes even as to the existence of

common questions—and in granting “noticeably more

deference” to decisions granting class certification—

the Ninth Circuit has abandoned the safeguards that

protect against class-action abuses, and has done so

in conflict with other circuits and this Court’s

precedent. Review is warranted to ensure that Rule

23 applies in the Ninth Circuit the same way it

applies everywhere else.

CONCLUSION

The petition should be granted.

Respectfully submitted,

DANIEL P. STRUCK

NICHOLAS D. ACEDO

STRUCK LOVE BOJANOWSKI

& ACEDO, PLC

3100 West Ray Road

Suite 300

Chandler, AZ 85226

ROMAN MARTINEZ

Counsel of Record

CHARLES S. DAMERON

ANTHONY J. JEFFRIES

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-3377

roman.martinez@lw.com

Counsel for Petitioner

April 18, 2023

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the Ninth Circuit, Owino v. CoreCivic,

Inc., No. 21-55221, 60 F.4th 437 (9th Cir.

Dec. 20, 2022) ......................................................1a

Order of the United States District Court for

the Southern District of California

Denying Plaintiffs’ Motion for Partial

Judgment,

Defendant’s

Moton

for

Judgment on the Pleadings, Plaintiffs’

Motion to Exclude, and Granting in Part

and Denying in Part Plaintiffs’ Motion for

Class Certification, Owino v. CoreCivic,

Inc., No. 17-cv-1112, 2020 WL 1550218

(S.D. Cal. Apr. 1, 2020) .....................................41a

Declaration of Plaintiff Sylvester Owino in

Support of Plaintiffs’ Motion for Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. Apr. 15, 2019),

ECF No. 84-3...................................................121a

Declaration of Plaintiff Jonathan Gomez in

Support of Plaintiffs’ Motion for Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. Apr. 15, 2019),

ECF No. 84-4...................................................134a

Declaration of Nehemias Emmanuel Nunez

Carrillo, Owino v. CoreCivic, Inc., No. 17cv-1112 (S.D. Cal. Apr. 15, 2019), ECF No.

84-5 ..................................................................145a

TABLE OF CONTENTS—Continued

Page

Declaration of Jonathan Ortiz Dubon, Owino

v. CoreCivic, Inc., No. 17-cv-1112 (S.D.

Cal. Apr. 15, 2019), ECF No. 84-6 ..................149a

Otay Mesa Detention Center Policy 12-100

(effective Sept. 1, 2015), Exhibit 12 to

Declaration of Eileen R. Ridley in Support

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. June 27, 2019),

ECF No. 111-6.................................................153a

Declaration of Michael Donahue in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................161a

Declaration of F. Hood in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2 (redacted version) ..................170a

Declaration of Chuck Keeton in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................182a

iii

TABLE OF CONTENTS—Continued

Page

Declaration of Kris Kline in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................189a

Declaration of Robert Lacy, Jr. in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................196a

Declaration of A. Meyers in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................204a

Declaration of D. Minehart in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................211a

Declaration of Orlando Perez in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................217a

TABLE OF CONTENTS—Continued

Page

Declaration of Stacey Stone in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................226a

Declaration of D. Topasna in Support of

Defendant’s Memorandum in Opposition

Plaintiffs’

Motion

for

Class

Certification, Owino v. CoreCivic, Inc.,

No. 17-cv-1112 (S.D. Cal. July 11, 2019),

ECF No. 118-2.................................................233a

[60 F.4th 437]

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SYLVESTER OWINO;

JONATHAN GOMEZ, on

behalf of themselves, and all

others similarly situated,

Plaintiffs-Appellees,

CORECIVIC, INC., a

Maryland corporation,

Defendant-Appellant.

No. 21-55221

D.C. No.

3:17-cv-01112JLS-NLS

ORDER AND

AMENDED

OPINION

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

Before: M. Margaret McKeown and William A.

Fletcher, Circuit Judges, and Richard D. Bennett,*

District Judge.

The honorable Richard D. Bennett, United States

District Judge for the District of Maryland, sitting by

designation.

Order;

Opinion by Judge McKeown;

Dissent by Judge VanDyke

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.

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. (“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/

pbnds2011r2016.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 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 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.

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 “classwide 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 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 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 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

10a

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 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

11a

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).

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.

12a

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 sevenyear statute of limitations, no detainee who was

released before May 31, 2010, can bring a claim. See

Cal. 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

13a

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 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

14a

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 classwide 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 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

15a

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.

III. California Labor Law Class

A. Damages

Capable

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 classwide 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

16a

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 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

17a

“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 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

18a

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 waitingtime penalties under California Labor Code § 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.”

19a

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 posthearing 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 case.”).

C. Failure-to-pay and Waiting-time Claim

Finally, CoreCivic argues that because Owino and

Gomez “did not reference their failure-to-pay/waitingtime 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.

20a

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 § 203 provides

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 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]

21a

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.

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

22a

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 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.

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

23a

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 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.

24a

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 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

25a

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 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

26a

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

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 intracircuit conflict by eliminating the TVPA’s actual

causation requirement for civil forced labor claims;

and (2) it holds that much less evidence of a

27a

nationwide policy than was present in Dukes is

nonetheless “significant proof” of a nationwide policy,

and therefore sufficient to certify a class.

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 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 intracircuit 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

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).

28a

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

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

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.

29a

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] 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).

30a

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. 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

31a

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 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

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.

32a

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 the specific

plaintiff to labor. In its amended opinion, the panel

33a

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 classwide 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

34a

attempt to have it both ways, will 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 intraand 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.

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.

35a

Under Dukes, to prove commonality through a

policy, a plaintiff must offer “significant proof” that

the complained-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

36a

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 “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

37a

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.

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

38a

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 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

39a

“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 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 WalMart’s culture prejudiced women, statistical

disparities between promotions of men and women,

40a

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.” 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.

41a

[Filed April 1, 2020]

[2020 WL 1550218]

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF CALIFORNIA

SYLVESTER OWINO

and JONATHAN

GOMEZ, on behalf of

themselves and all

others similarly

situated,

Plaintiffs,

CORECIVIC, INC., a

Maryland corporation,

Defendant.

CORECIVIC, INC.,

Counter-Claimant,

SYLVESTER OWINO

and JONATHAN

GOMEZ, on behalf of

themselves and all

others similarly

situated,

Counter-Defendants.

Case No.: 17-CV-1112

JLS (NLS)

ORDER: (1) DENYING

WITHOUT

PREJUDICE

PLAINTIFFS’

MOTION FOR

PARTIAL SUMMARY

JUDGMENT,

(2) DENYING

DEFENDANT’S

MOTION FOR

JUDGMENT ON

THE PLEADINGS,

(3) DENYING AS

MOOT PLAINTIFFS’

MOTION TO

EXCLUDE, AND (4)

GRANTING IN PART

AND DENYING IN

PART PLAINTIFFS’

MOTION FOR CLASS

CERTIFICATION

(ECF Nos. 97, 117, 128,

155)

Presently before the Court are Plaintiffs and

Counter-Defendants Sylvester Owino and Jonathan

42a

Gomez’s Motion for Class Certification (“Cert. Mot.,”

ECF No. 84), Motion for Partial Summary Judgment

(“MPSJ,” ECF No. 97), and Motion to Exclude

Evidence from Class Certification Decision (“Mot. to

Exclude,” ECF No. 128), as well as Defendant and

Cross-Claimant CoreCivic, Inc.’s Motion for

Judgment on the Pleadings (“MJP,” ECF No. 117).

The Court held a hearing on December 19, 2019. See

ECF Nos. 154, 159 (“Tr.”).

Having carefully

considered the Parties’ arguments, the evidence, and

the law, the Court DENIES WITHOUT

PREJUDICE Plaintiffs’ Motion for Partial Summary

Judgment (ECF No. 97), DENIES Defendant’s

Motion for Judgment on the Pleadings (ECF No. 117),

DENIES AS MOOT Plaintiffs’ Motion to Exclude

(ECF No. 128), and GRANTS IN PART AND

DENIES IN PART Plaintiffs’ Motion for Class

Certification (ECF No. 84), as follows.

BACKGROUND

I. Factual Background1

Plaintiffs are civil immigration detainees who are

involuntary confined at Defendant’s detention

facilities under the custody of Immigration and

Customs Enforcement (“ICE”). See Pls.’ Stmt. of

Facts, ECF Nos. 97-2, 99-1 (sealed), ¶¶ 1, 37, 41.

Plaintiffs request the Court to exclude “attachment B to

Exhibit 1, and all attachments to Exhibits 4, 6, 7, 8, 11, and 13”

filed in support of Defendant’s opposition to their Motion for

Class Certification “on the grounds that they were not timely

produced” by the March 15, 2019 deadline to complete class

discovery imposed by Magistrate Judge Nita L. Stormes. See

ECF No. 128-1 at 1. Because the Court does not rely on any of

the attachments Plaintiffs have challenged in ruling on

Plaintiffs’ Certification Motion, the Court DENIES AS MOOT

Plaintiffs’ Motion to Exclude (ECF No. 128).

43a

During their period of detention, Plaintiffs and other

ICE detainees performed work for Defendant through

a Voluntary Work Program (“VWP”). Id. Defendant

paid those participating in the VWP between $0.75

and $1.50 per day, id. ¶ 18, which is less than

California’s minimum wage. See id. ¶ 35. Defendant

also coerced detainees to perform additional,

uncompensated work under threat of punishment.

See id. ¶¶ 11, 13, 16.

II. Procedural Background

Plaintiffs filed this putative class action on May 1,

2017, alleging seven causes of action for (1) forced

labor and violation of the Trafficking Victims

Protection Act (“TVPA”), 18 U.S.C. §§ 1589 et seq.;

(2) forced labor and violation of the California TVPA,

Cal. Civ. Code § 52.5; (3) unfair competition, Cal. Bus

& Prof. Code §§ 17200 et seq.; (4) violations of the

California Labor Code; (5) violation of California

Industrial Welfare Commission (“IWC”) Orders;

(6) negligence; and (7) unjust enrichment.

See

generally ECF No. 1. Plaintiffs alleged that the action

was being brought on behalf of three classes: (1) a

“Nationwide Forced Labor Class” comprised of “[a]ll

civil immigration detainees who performed Forced

Labor uncompensated work for CoreCivic at any

Detention Facility owned or operated by it between

November 2, 2004[,] to the applicable opt-out date,

inclusive”; (2) a “California Forced Labor Class”

comprised of “[a]ll civil immigration detainees who

performed Forced Labor uncompensated work for

CoreCivic at any Detention Facility located in

California owned or operated by it at [any] time

during the period from November 2, 2004[,] to the

applicable opt-out date, inclusive”; and (3) a

“California Labor Law Class” comprised of “[a]ll civil

44a

immigration detainees who performed Dollar-A-Day

Work for CoreCivic and were paid one dollar ($1) per

day at any Detention Facility located in California

owned or operated by it at any time between

November 2, 2004[,] to the applicable opt-out date,

inclusive.” Id. ¶ 30.

On August 11, 2017, Defendant moved to dismiss

for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6), see generally ECF No. 18, a motion

that the Court later granted in part and denied in

part. See generally ECF No. 38. Defendant then

answered Plaintiffs’ complaint, “admit[ting] that

jurisdiction is proper in this Court.” See ECF No. 44

¶¶ 2–3, 5.

Although Defendant raised several

affirmative defenses, it did not raise any

jurisdictional defenses. See id. at 21–27.

On September 11, 2018, Plaintiffs moved to file an

amended complaint “for the purpose of adding a claim

for violations of the Private Attorney General Act

(“PAGA”), Cal. Labor Code §§ 2698, et seq.,” ECF No.

64, a request Defendant did not oppose. See ECF No.

65. The Court therefore granted Plaintiffs’ motion,

see ECF No. 66, and Plaintiffs filed their First

Amended Complaint on October 12, 2018, see

generally ECF No. 67 (“FAC”), adding a new cause of

action for violation of PAGA “[o]n [b]ehalf of Plaintiffs

[i]ndividually and the Class.” See id. ¶¶ 129–38.

Again, Plaintiffs alleged three classes: a Nationwide

Forced Labor Class, a California Forced Labor Class,

and a California Labor Law Class. See id. ¶ 30.

Defendant answered Plaintiffs’ First Amended

Complaint on October 26, 2018. See generally ECF

No. 70. For the first time, Defendant “admit[ted] only

that this Court has specific personal jurisdiction over

CoreCivic as to the claims arising out of CoreCivic’s

45a

California facilities” and “denie[d] that this Court has

general personal jurisdiction over CoreCivic as to

claims arising out of CoreCivic’s non-California

facilities.” Id. ¶ 5; see also id. ¶ 31 (“CoreCivic further

affirmatively alleges that this Court lacks personal

jurisdiction over CoreCivic as to Plaintiffs’ claims

arising out of CoreCivic’s non-California facilities.”).

CoreCivic also raised a new affirmative defense in its

answer to Plaintiffs’ First Amended Complaint: “As a

separate defense, and in the alternative, CoreCivic

alleges that this Court lacks personal jurisdiction

over CoreCivic as to Plaintiffs’ claims arising out of

Plaintiffs’ non-California facilities.” Id. at 22 ¶ 8.

On April 15, 2019, Plaintiffs filed their

Certification Motion, seeking to certify five classes,

see generally ECF No. 84, and Plaintiffs filed their

Motion for Partial Summary Judgment, seeking

summary adjudication as to whether Plaintiffs are

employees under California law and on Plaintiffs’

claims for violation of California Labor Code sections

226 and 1194, on June 5, 2019. See generally ECF No.

97. On July 11, 2019, Defendant filed its Motion for

Judgment on the Pleadings, “mov[ing] this Court,

pursuant to Fed. R. Civ. P. 12(c) to grant judgment on

the pleadings and dismiss all putative class claims

that arose outside of California for lack of personal

jurisdiction.” See ECF No. 117 at 2. Plaintiffs moved

to exclude certain evidence Defendant introduced in

its opposition to their Certification Motion on August

1, 2019, “on the grounds that Defendant violated this

Court’s scheduling order regarding class discovery, as

well as two of the Court’s discovery orders,” by

producing documents “to Plaintiffs for the first time

months after the close of class discovery.” See ECF

No. 128 at 2.

46a

PLAINTIFFS’ MOTION FOR PARTIAL

SUMMARY JUDGMENT

I. Legal Standard

Under Federal Rule of Civil Procedure 56(a), a

party may move for summary judgment as to a claim

or defense or part of a claim or defense. Summary

judgment, or partial summary judgment, is

appropriate where the Court is satisfied that there is

“no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). Material facts are those that may

affect the outcome of the case. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine

dispute of material fact exists only if “the evidence is

such that a reasonable jury could return a verdict for

the nonmoving party.” Id. When the Court considers

the evidence presented by the parties, “[t]he evidence

of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Id. at 255.

The initial burden of establishing the absence of a

genuine issue of material fact falls on the moving

party. Celotex, 477 U.S. at 323. The moving party

may meet this burden by identifying the “portions of

‘the

pleadings,

depositions,

answers

interrogatories, and admissions on file, together with

the affidavits, if any,’” that show an absence of

dispute regarding a material fact. Id. When a

plaintiff seeks summary judgment as to an element

for which it bears the burden of proof, “it must come

forward with evidence which would entitle it to a

directed verdict if the evidence went uncontroverted

at trial.” C.A.R. Transp. Brokerage Co. v. Darden

Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (quoting

47a

Houghton v. South, 965 F.2d 1532, 1536 (9th Cir.

1992)).

Once the moving party satisfies this initial

burden, the nonmoving party must identify specific

facts showing that there is a genuine dispute for trial.

Celotex, 477 U.S. at 324. This requires “more than

simply show[ing] that there is some metaphysical

doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). Rather, to survive summary judgment, the

nonmoving party must “by her own affidavits, or by

the ‘depositions, answers to interrogatories, and

admissions on file,’ designate ‘specific facts’ “ that

would allow a reasonable fact finder to return a

verdict for the non-moving party. Celotex, 477 U.S. at

324, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106

S.Ct. 2505. The non-moving party cannot oppose a

properly supported summary judgment motion by

“rest[ing] on mere allegations or denials of his

pleadings.” Anderson, 477 U.S. at 256, 106 S.Ct.

2505.

II. Analysis

Plaintiffs seek summary adjudication as to

(1) their status as “employees” under California law,

and (2) Defendant’s liability to them under California

Labor Code sections 226 and 1194 and Industrial

Welfare Commission (“IWC”) Wage Order No.

5-2001. See ECF No. 97 at 2. Defendant contends

that Plaintiffs’ motion must be denied because the

“one-way intervention rule” precludes Plaintiffs

from seeking summary judgment before class

certification.2 ECF No. 133 at 3–4. Plaintiffs respond

Defendant also asks the Court to deny or defer ruling on

Plaintiffs’ Motion for Partial Summary Judgment until

48a

that “the ‘one-way intervention’ rule is a procedural

red herring.” ECF No. 141 at 9.

The one-way intervention rule is intended “to

protect

defendants

from

unfair

‘one-way

intervention,’ where the members of a class not yet

certified can wait for the court’s ruling on summary

judgment and either opt in to a favorable ruling or

avoid being bound by an unfavorable one.” Villa v.

San Francisco Forty-Niners, Ltd., 104 F. Supp. 3d

1017, 1021 (N.D. Cal. 2015) (citing Am. Pipe & Const.

Co. v. Utah, 414 U.S. 538, 547 (1974)). The one-way

intervention rule is supported by “[t]he purpose of

Rule 23(c)(2)[, which] is to ensure that the plaintiff

class receives notice of the action well before the

merits of the case are adjudicated.” Schwarzschild v.

Tse, 69 F.3d 293, 295 (9th Cir. 1995). This purpose is

the result of the “1966 amendments [that] were

designed, in part, specifically to mend this perceived

defect in the former Rule and to assure that members

of the class would be identified before trial on the

merits and would be bound by all subsequent orders

and judgments.” Am. Pipe & Const. Co., 414 U.S. at

547.

While the one-way intervention rule typically

precludes a court from ruling on a merits-based

motion before the class is certified and notified, see

Schwarzschild, 69 F.3d at 296, there is an exception

“when early resolution of a motion for summary

judgment seems likely to protect both the parties and

Defendant has had the opportunity to conduct “[e]ssential

[m]erits [d]iscovery.” ECF No. 133 at 6–10. Although the Court

tends to agree with Plaintiffs that Defendant has not made the

requisite showing under Federal Rule of Civil Procedure 56(d),

see ECF No. 141 at 2–8, the Court need not reach the issue

because the one-way intervention rule is dispositive.

49a

the court from needless and costly further litigation.”

Wright v. Schock, 742 F.2d 541, 544 (9th Cir. 1984).

However, “[d]efendants must consent to this

procedure, as the judgment against the individual

plaintiff ‘will not be res judicata as to other

individual plaintiffs or other members of any class

that may be certified.’”

Schwarz v. Meinberg,

No. CV1300356BROPLAX, 2016 WL 9115353, at *2

(C.D. Cal. July 15, 2016) (quoting Wright, 742 F.2d at

544); see also Flo & Eddie, Inc. v. Sirius XM Radio,

Inc., No. 13-5693 PSG (RZX), 2015 WL 4476932, at *4

(C.D. Cal. May 27, 2015).

The Court concludes that the one-way

intervention rule applies here. The class was neither

certified nor notified prior to Plaintiffs’ filing of

their Motion for Partial Summary Judgment;

consequently, a ruling on the merits is premature

because it has the potential to leave Defendant open

to “being pecked to death” by plaintiffs seeking an

alternative outcome. See Fireside Bank v. Super. Ct.,

40 Cal. 4th 1069, 1078 (2007) (quoting Premier Elec.

Constr. Co. v. Nat’l Elec. Contractors Ass’n, Inc., 814

F.2d 358, 363 (7th Cir. 1987)). Further, the exception

does not apply here because Defendant did not

consent to a pre-certification ruling on Plaintiffs’

Motion for Partial Summary Judgment. See ECF No.

133 at 4 (“CoreCivic has not consented—and does not

consent—to the adjudication of these merits issues

before a class-certification ruling.”) (citing Gessele v.

Jack in the Box, Inc., No. 3:10-cv-960-ST, 2012 WL

3686274, at *3 (D. Or. Aug. 24, 2012)).

Because “there is no reason the briefing on the

MPSJ could not have been completed already as

scheduled,” Plaintiffs suggest that the Court defer

ruling on its Motion, without allowing Defendant a

50a

second opportunity to brief the merits, until after the

class certification procedures have been completed.

ECF No. 141 at 9–10. But Plaintiffs do not cite, and

the Court has not found, any authority supporting

Plaintiffs’ request. See Gomez v. Rossi Concrete Inc.,

No. 08CV1442 BTM CAB, 2011 WL 666888, at *2

(S.D. Cal. Feb. 17, 2011) (denying pre-certification

motion for summary judgement without prejudice);

see also Villa, 104 F. Supp. 3d at 1023 (same).

Further, Defendant should not be penalized for

asserting its rights under the one-intervention rule.

Consequently, the Court DENIES WITHOUT

PREJUDICE Plaintiffs’ Motion for Partial Summary

Judgment. Should Plaintiffs elect to renew their

Motion for Partial Summary Judgment following the

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