Reid v. Donelan et al

Filing 416

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered. " Plaintiffs motions to amend the complaint (Docket No. 384) and modify the class definition (Docket No. 378) are ALLOWED. The Governments motion to decertify the class (Docket No. 37 7) is DENIED. The Court thus certifies the following class: All individuals who are or will be detained within the Commonwealth of Massachusetts or the State of New Hampshire pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond or reasonableness hearing. " (Coppola, Katelyn)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
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)
)
)
)
Plaintiff/Petitioner,
)
)
v.
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CHRISTOPHER DONELAN, Sheriff,
)
Franklin County, et al.,
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Defendants/Respondents. )
___________________________________)
MARK ANTHONY REID, on behalf of
himself and others similarly
situated,

Civil Action
No. 13-30125-PBS

MEMORANDUM AND ORDER
October 23, 2018
Saris, C.J.
INTRODUCTION
In this class action, Plaintiffs challenge the mandatory
detention of certain criminal aliens for more than six months
without the opportunity for a bond hearing during removal
proceedings pursuant to 8 U.S.C. § 1226(c) under the Fifth
Amendment Due Process Clause and the Eighth Amendment Excessive
Bail Clause. In 2014, the court (Ponsor, J.) certified a class
of “[a]ll individuals who are or will be detained within the
Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c) for
over six months and have not been afforded an individualized
bond hearing.” Reid v. Donelan, 297 F.R.D. 185, 194 (D. Mass.
1

2014). The Government has filed a motion asking the Court to
decertify this class, citing Jennings v. Rodriguez, 138 S. Ct.
830 (2018), and Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016),
withdrawn, No. 14-1270, 2018 WL 40000993 (1st Cir. May 11,
2018). Plaintiffs oppose decertification. They have also moved
to amend the complaint and modify the class.
After hearing, the Court ALLOWS Plaintiffs’ motions to
amend the complaint (Docket No. 384) and modify the class
definition (Docket No. 378) and DENIES the Government’s motion
to decertify the class (Docket No. 377).
PROCEDURAL HISTORY
I.

Commencement of Action and Individual Habeas Petition
On July 1, 2013, Plaintiff Mark Anthony Reid filed a

petition for writ of habeas corpus and a complaint for
injunctive relief. He brought statutory and constitutional
claims challenging mandatory detention under § 1226(c) on behalf
of a class.1 On January 9, 2014, the court (Ponsor, J.) granted
Reid’s individual habeas petition. Reid v. Donelan, 991 F. Supp.
2d 275, 276 (D. Mass. 2014), aff’d, No. 14-1270, 2018 WL
40000993 (1st Cir. May 11, 2018). Following its earlier decision
in Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass.

1

Reid also brought an individual claim alleging that the
Government’s shackling policy violated due process. The court
(Ponsor, J.) disposed of this claim on March 6, 2014. See
Reid v. Donelan, 2 F. Supp. 3d 38 (D. Mass. 2014).
2

2009), the court determined that § 1226(c) “include[d] a
‘reasonableness’ limit on the length of time an individual can
be detained without an individualized bond hearing” to avoid due
process concerns with indefinite detention. Reid, 991 F. Supp.
2d at 278-79. The court then evaluated two approaches to
implementing this reasonableness requirement: an automatic bond
hearing once detention exceeds six months (six-month rule) or a
bond hearing only when detention has become unreasonable as
analyzed on a case-by-case basis (individualized reasonableness
rule). See id. at 279-82. The court held that Reid was entitled
to a bond hearing under either approach but suggested it would
adopt the six-month rule in the future. See id. at 279.
II.

Class Certification
On February 10, 2014, the court (Ponsor, J.) certified the

class. Reid, 297 F.R.D. at 194. It determined that the class was
sufficiently numerous because Plaintiffs identified between 39
and 42 class members during the course of a one-year period in
2011 and the transient nature of the class made it difficult to
identify members at any particular time. See id. at 188-89. The
court recognized that the common legal question of “whether
§ 1226(c) requires a bond hearing after an unreasonable period
of detention” governed the entire case. See id. at 189. The
court found that Reid’s claims were typical of those of the
class because all class members presented the same common
3

question of law and sought the same remedy. See id. at 191. It
held that Reid was an adequate class representative, even though
it had already granted his individual habeas petition, because
the inherently transitory nature of the class meant that it was
possible that no individual would be a member long enough to
reach certification. See id. at 191-92. The court found the
attorneys at the Jerome N. Frank Legal Services Organization at
Yale Law School adequate and appointed them class counsel under
Rule 23(g). See id. at 192, 194. It certified the class under
Rule 23(b)(2), noting that the Government refused to provide
bond hearings to any class member under its § 1226(c) detention
authority and that the class members all sought an order that
§ 1226(c) must be read as requiring bond hearings after six
months of detention. See id. at 192-93. The Government did not
appeal the class certification order.
III. Permanent Injunction and First Circuit Appeal
On May 27, 2014, the court (Ponsor, J.) awarded summary
judgment and a permanent injunction to the class on the basis of
its holding that § 1226(c) included a requirement for a bond
hearing after six months of detention. See Reid v. Donelan, 22
F. Supp. 3d 84, 88-89, 93-94 (D. Mass 2014), vacated, No. 141270, 2018 WL 40000993 (1st Cir. May 11, 2018). The Government
appealed the classwide injunction and the earlier grant of
habeas corpus for Reid.
4

In its initial decision on April 13, 2016, the First
Circuit agreed that “categorical, mandatory, and indeterminate
detention raises severe constitutional concerns” and that the
canon of constitutional avoidance required reading a bond
hearing requirement into § 1226(c). Reid, 819 F.3d at 494.
Disagreeing with the district court, however, the First Circuit
held that Supreme Court precedent required it to adopt the
individualized reasonableness rule. See id. at 495-98. It
instructed courts evaluating the reasonableness of § 1226(c)
detention without a bond hearing to “examine the presumptions
upon which [mandatory detention] was based (such as brevity and
removability)” and consider “the total length of detention; the
foreseeability of proceedings concluding in the near
future . . .; the period of the detention compared to the
criminal sentence; the promptness (or delay) of the immigration
authorities or the detainee; and the likelihood that the
proceedings will culminate in a final removal order.” Id. at
500.
Applying these factors, the First Circuit affirmed the
decision to grant Reid a bond hearing on the grounds that he had
been detained for fourteen months, he had a colorable argument
against removal, and the end of his removal proceedings was not
imminent. See id. at 501. It also vacated the grant of summary
judgment on the class claims. Id. As “the district court’s
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adoption of the [six-month] rule was an essential predicate to
class certification,” the First Circuit’s adoption of the
individualized reasonableness approach eliminated that predicate
and rendered the class overbroad. Id. To avoid potentially
“premature adjudication of constitutional questions,” the First
Circuit remanded the case to reconsider class certification. Id.
at 502.
IV.

Jennings and Withdrawal of First Circuit Opinion

Two months later, the Supreme Court granted certiorari in
Jennings v. Rodriguez, involving a class action in the Ninth
Circuit also challenging mandatory detention under § 1226(c).
See 136 S. Ct. 2489 (2016). The First Circuit stayed this
lawsuit pending resolution of Jennings.2 On February 27, 2018,
the Supreme Court held that the explicit language in § 1226(c)
requiring mandatory detention pending removal proceedings barred
courts from invoking the canon of constitutional avoidance to
read into the statute an implicit requirement for bond hearings.
Jennings, 138 S. Ct. at 846-47. Instead, the Court determined
that Ҥ 1226(c) mandates detention of any alien falling within
its scope and that detention may end prior to the conclusion of

2

Plaintiffs filed a petition for writ of certiorari while
Jennings was pending, arguing that, because Justice Kagan
recused herself in Jennings, this lawsuit presented a better
vehicle to resolve questions concerning mandatory detention
under § 1226(c). The Supreme Court denied the petition after
deciding Jennings. See Reid v. Donelan, 138 S. Ct. 1547 (2018).
6

removal proceedings ‘only if’ the alien is released for witnessprotection purposes.” Id. at 847. Since the Ninth Circuit did
not decide if this mandatory detention is constitutional, the
Court declined to rule on that question. See id. at 851.
Shortly thereafter, the First Circuit withdrew its opinion
and vacated its judgment. See Reid, 2018 WL 40000993, at *1. In
a summary decision, it affirmed the district court’s judgment
for Reid individually, vacated the judgment for the class, and
remanded the case for reconsideration of the certification
order. Id.
DISCUSSION
I.

Motion to Amend Complaint and to Modify Class
Plaintiffs move to amend the complaint primarily in three

respects. First, they seek to add new class representatives.
Second, they seek to add an alternative request for relief in
light of the First Circuit’s vacated decision. Finally, they
seek to expand the geographic scope of the class to include New
Hampshire.
A party seeking to amend a pleading at this stage of the
litigation requires either “the opposing party’s written consent
or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court
should freely give leave when justice so requires.” Id. Reasons
to deny leave to amend include undue delay, bad faith, futility
of amendment, and undue prejudice to the opposing party.
7

Kader v. Sarepta Therapeutics, Inc., 887 F.3d 48, 60 (1st Cir.
2018). To show prejudice, the defendant must demonstrate “a
grave injustice” or “undue difficulty in prosecuting the lawsuit
as a result of the change in tactics or theories.” O’Leary v.
N.H. Boring, Inc., 323 F.R.D. 122, 128 (D. Mass. 2018). When the
plaintiff delays significantly in seeking leave to amend, he
must show “some valid reason for his neglect and delay,” Hagerty
ex rel. United States v. Cyberonics, Inc., 844 F.3d 26, 34 (1st
Cir. 2016) (quoting Perez v. Hosp. Damas, Inc., 769 F.3d 800,
802 (1st Cir. 2014)), such as “new allegations coming to light”
or “previously unearthed evidence surfacing,” Villanueva v.
United States, 662 F.3d 124, 127 (1st Cir. 2011).
Plaintiffs have also moved to modify the class definition
to reflect the expanded geographic scope. Courts may alter or
amend a certification order before final judgment. Fed. R. Civ.
P. 23(c)(1)(C). In determining whether to do so, courts consider
“the criteria of Rule 23(a) and (b) in light of factual and
legal developments” and if “the parties or the class would be
unfairly prejudiced by a change in proceedings.” In re Harcourt
Brace Jovanovich, Inc. Sec. Litig., 838 F. Supp. 109, 115
(S.D.N.Y. 1993) (quoting Manual for Complex Litigation § 30.1.8,
at 30-15 (Draft Feb. 1985)).

8

A.

Class Representatives

After Reid spent fourteen months in detention, the district
court granted him a bond hearing, and he has been released from
detention. See Reid, 819 F.3d at 492. Plaintiffs therefore seek
to add two new class representatives who have criminal
convictions qualifying them for mandatory detention under
§ 1226(c) and have been detained for six months after completing
their prison sentences.
The addition of new class representatives does not
prejudice the Government, as Reid and the new class
representatives raise the same common legal question concerning
the constitutionality of mandatory detention without an
individualized hearing under § 1226(c). Nor can the Government
allege surprise at this amendment, which the First Circuit
specifically suggested in its withdrawn 2016 opinion. See Reid,
819 F.3d at 502. Furthermore, the addition of new class
representatives eliminates the Government’s concern that Reid is
an inadequate class representative because his claims are moot.3

3

Plaintiffs argue that the “inherently transitory” exception
to the mootness doctrine renders Reid an adequate class
representative. See Gerstein v. Pugh, 420 U.S. 103, 110 n.11
(1975). I agree. See Reid, 297 F.R.D. at 192 (“[I]t is not clear
how long any given individual will be held and, therefore,
whether anyone would be subject to detention long enough for the
court to certify a class.”). Additionally, because “a class
action is not rendered moot when the named plaintiff’s
individual claim becomes moot after the class has been duly
certified,” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74
9

B.

Alternative Relief

Plaintiffs also seek to add an alternative request for
relief that any alien detained under § 1226(c) beyond six months
receive a “reasonableness hearing” before an immigration judge
to determine whether his detention should be reviewed at a bond
hearing. This amended prayer for relief responds to the First
Circuit’s adoption of the individualized reasonableness rule in
its withdrawn opinion and its suggestion that it may make more
sense to conduct this reasonableness review before the agency
instead of through individual habeas petitions in federal court.
See Reid, 819 F.3d at 498, 502 n.5 (noting “the shortcomings of
case-by-case habeas review” of the reasonableness of § 1226(c)
detention and the familiarity of the immigration judge “with the
intricacies of the case and the particulars of the underlying
removal proceedings”). This amendment does not prejudice the
Government because the Government has been on notice of this
possible resolution since at least 2016.
C.

Expanded Class and New Defendants

Plaintiffs’ counsel recently learned that the ICE Boston
Field Office detains up to 130 aliens at a time at the Strafford
County House of Corrections in Dover, New Hampshire

(2013), Plaintiffs need not amend to add a new class
representative if an existing representative is removed or
released from detention.
10

(“Strafford”). Strafford transports these detainees to and from
the ICE office in Burlington, Massachusetts and the Boston
Immigration Court. The aliens detained at Strafford under
§ 1226(c) are similarly not provided bond hearings. Plaintiffs’
counsel is aware of at least one individual who has been
detained at Strafford under § 1226(c) beyond six months.
Plaintiffs therefore seek to amend the complaint and to modify
the class to include aliens detained in New Hampshire under
§ 1226(c) for more than six months without a bond hearing and to
add David Dubois and Christopher Brackett, the sheriff of
Strafford County and superintendent of Strafford, respectively,
as Defendants.
The Government’s only argument specifically against
geographic expansion of the class is that Plaintiffs have unduly
delayed for five years after initiating their lawsuit and ten
years after ICE started detaining aliens at Strafford in 2008.
Plaintiffs have provided sufficient justification for this
delay. They state they only became aware of the ICE Boston Field
Office’s use of the Strafford facility while this case was on
appeal when the number of detainees there increased
dramatically. Plaintiffs raised the motion to amend at the first
status conference after the First Circuit remanded the case to
the district court. Thus, they made diligent efforts to amend
after discovering relevant new information.
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The Government also opposes Plaintiffs’ motion to modify
the class definition and motion to amend on the grounds that the
motions are futile for reasons that apply equally to the
existing class. The Court addresses those arguments below in
connection with the Government’s motion for class
decertification.
II.

Class Decertification
A.

Legal Standard

“[A] district court may decertify a class if it appears
that the requirements of Rule 23 are not in fact met.” Mazzei v.
Money Store, 829 F.3d 260, 266 (2d Cir. 2016) (quoting Sirota v.
Solitron Devices, Inc., 673 F.2d 566, 572 (2d Cir. 1982)), cert.
denied, 137 S. Ct. 1332 (2017). The question of who bears the
burden on a motion to decertify is not settled. See Day v.
Celadon Trucking Servs., Inc., 827 F.3d 817, 831 n.5 (8th Cir.
2016) (collecting cases). The Court need not resolve this issue.
Plaintiffs have shown that continued certification is proper
even if they bear the burden.
B.

Analysis

The Government makes four arguments for why decertification
is required. The Court addresses each in turn.

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1.

Class Certification Was Based on an Incorrect
Construction of § 1226(c).

The Government first argues that the Court must decertify
the class because the original class certification order relied
on an incorrect reading of § 1226(c) to find commonality, namely
that the statute included an implicit six-month bond hearing
requirement. Jennings did resolve the common statutory question
on which Judge Ponsor relied. But the class has another common
question: whether the Constitution (either the Due Process
Clause or Excessive Bail Clause) requires an individualized
hearing for those detained under § 1226(c) beyond six months.
Plaintiffs have asserted these constitutional claims since the
start of the litigation. Jennings’ rejection of the statutory
claim therefore does not require decertification.
2.

The Class Lacks Commonality and Typicality
Because the Constitution Requires an
Individualized Analysis of Detention.

The Government argues that the class does not present a
common question because a due process or excessive bail
challenge to detention under § 1226(c) post-Jennings requires a
fact-specific, individualized analysis. Without a bright-line
rule demarcating when detention becomes unreasonable, the
Government argues, every class member’s claim is completely
unique and the class representatives’ claims are not typical of
those of the class.

13

The common question here is not whether each alien is
entitled to release but whether the Due Process Clause or
Excessive Bail Clause requires that they at least have the
chance to plead their case after six months at an individualized
bond or reasonableness hearing. Because this common question is
a pure question of law, the Court need not consider the factual
differences among the class members that may be relevant in
determining whether they are ultimately released. See Reid, 297
F.R.D. at 190; cf. Califano v. Yamasaki, 442 U.S. 682, 701
(1979) (finding certification of a class “peculiarly
appropriate” where the plaintiffs were asserting a due process
right to a hearing before recoupment of Social Security
overpayments because the question at issue was the right to a
hearing, which did not involve “differences in the factual
background of each claim”).
The Government may ultimately prevail on its merits
argument that the Constitution requires an individualized
determination of whether an alien’s detention has become
unreasonable. However, the class still presents the common
threshold question of whether their detention after six months
without a bail hearing or reasonableness review violates the
Constitution. Even if the answer to that question is no, the
class still meets the commonality requirement. See Daffin v.
Ford Motor Co., 458 F.3d 549, 553 (6th Cir. 2006) (declining to
14

consider “whether the class members can win on the merits of the
issue common to the class” in determining whether the class
satisfies the requirements of Rule 23(a)). As the court (Ponsor,
J.) wrote when certifying the class on the statutory question,
“were the court to . . . agree with [the Government] that
individual determinations were required, that answer would still
resolve the entire case.” Reid, 297 F.R.D. at 190; see also WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (holding
that commonality requires that the class has “a common
contention” the adjudication of which “will resolve an issue
that is central to the validity of each one of the claims in one
stroke”).
This argument does not undermine typicality either. Even
if individual factors would be relevant at a reasonableness
hearing in determining whether an alien is entitled to a bond
hearing, the desire of each class member for a hearing arises
from the same factual scenario (mandatory detention under
§ 1226(c)) and raises the same legal question (whether that
detention comports with the Constitution). See Garcia-Rubiera v.
Calderon, 570 F.3d 443, 460 (1st Cir. 2009) (requiring for
typicality that the class representative’s claims “arise[] from
the same event or practice or course of conduct that gives rise
to the claims of the other class members” and “are based on the
same legal theory” (quoting In re Am. Med. Sys., Inc., 75 F.3d
15

1069, 1082 (6th Cir. 1996))). The interests of the class
representatives and members are all aligned in securing a right
to an individualized hearing. See Gen. Tele. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 n.13 (1982) (noting that typicality
helps determine whether “the named plaintiff’s claim and the
class claims are so interrelated that the interests of the class
members will be fairly and adequately protected in their
absence”). The same reasoning also undermines the Government’s
concern that the class representatives are inadequate because of
the factual differences among the class members. See Reid, 297
F.R.D. at 191.
The Government points to the withdrawn First Circuit
opinion in this case to argue that the individualized
determination required by due process mandates decertification,
specifically its statements that its holding “cast[s]
substantial doubt on the composition of the class” and that
“[i]t may well be that no suitable class can be formed.” Reid,
819 F.3d at 502. This read of Reid is too slim a reed to support
decertification. The withdrawn opinion may doom Plaintiffs’
argument on the merits. However, the class still presents the
common, unanswered question of whether the Due Process Clause or
the Excessive Bail Clause requires an individualized hearing
after six months of detention.

16

3.

The Court Cannot Provide Final Injunctive or
Declaratory Relief to the Class as a Whole.

The Government argues that, because a constitutional
challenge to § 1226(c) requires an individualized analysis to
determine whether detention has become unreasonable, the Court
cannot issue an injunction or declaratory judgment that provides
relief for all class members. See Fed. R. Civ. P. 23(b)(2)
(permitting a class action when “the party opposing the class
has acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole”). Even if the Government is correct on this merits
question, the Government is acting on grounds that apply
generally to the class by failing to allow those detained under
§ 1226(c) to argue they are entitled to a bond hearing. A
holding that the Constitution provides a right to a
reasonableness hearing during a prolonged detention would
resolve all class members’ claims at once. See Dukes, 564 U.S.
at 360 (“Rule 23(b)(2) applies only when a single injunction or
declaratory judgment would provide relief to each member of the
class.”); see also Damus v. Nielsen, 313 F. Supp. 3d 317, 334-35
(D.D.C. 2018) (finding Rule 23(b)(2) satisfied because the class
of asylum seekers sought an order requiring ICE to provide

17

individualized parole determinations, not a remedy for “discrete
errors in their parole determinations”).
4.

8 U.S.C. § 1252(f)(1) Bars Classwide Injunctive
Relief.

The Government argues that the Court must decertify the
class because 8 U.S.C. § 1252(f)(1) prevents the Court from
granting the classwide injunction the class seeks and thus there
is no single remedy the Court can issue for the class as a whole
as required by Rule 23(b)(2). Under 8 U.S.C. § 1252(f)(1), “no
court (other than the Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of [8 U.S.C. §§
1221-1232] other than with respect to the application of such
provisions to an individual alien against whom proceedings . . .
have been initiated.” Earlier in this lawsuit, the court
(Ponsor, J.) determined that § 1252(f)(1) did not bar the
classwide injunction it granted on statutory grounds because the
injunction merely required the government to obey § 1226(c) (and
its implicit requirement for six-month bond hearings), instead
of enjoining the operation of the statute. See Reid, 22 F. Supp.
3d at 89-90. As the Supreme Court noted in Jennings, “[t]his
reasoning does not seem to apply to an order granting relief on
constitutional grounds.” 138 S. Ct. at 851.
Plaintiffs make a myriad of arguments for why § 1252(f)(1)
does not bar a classwide injunction here. The Court need not

18

address these because § 1252(f)(1) does not bar classwide
declaratory relief, which suffices to satisfy Rule 23(b)(2). See
Alli v. Decker, 650 F.3d 1007, 1012-16 (3d Cir. 2011);
Rodriguez v. Hayes, 591 F.3d 1105, 1118-21 (9th Cir. 2010).
Section 1252(f)(1) uses “enjoin” and “restrain” to describe
the relief that courts cannot provide except on an individual
basis. “Enjoin” plainly refers to injunctions, see Arevalo v.
Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003) (noting that “enjoin”
covers permanent injunctive relief), which are a different form
of relief from declaratory judgments, see, e.g., Steffel v.
Thompson, 415 U.S. 452, 471 (1974) (calling a declaratory
judgment “a much milder form of relief than an injunction”).
“Restrain” also appears to refer to injunctive relief. See
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 481
(1999) (stating that § 1252(f)(1) “is nothing more or less than
a limit on injunctive relief” and that it “prohibits federal
courts from granting classwide injunctive relief against the
operation of §§ 1221-1231”); Arevalo, 344 F.3d at 7 (noting that
“restrain” refers to temporary injunctive relief). The term
“restrain” means “to prevent from doing, exhibiting, or
expressing something” and “to limit, restrict, or keep under
control.” Restrain, Merriam Webster’s Collegiate Dictionary
(10th ed. 1993); cf. Restraint, Black’s Law Dictionary (10th ed.
2014) (defining “restraint” as “confinement, abridgment, or
19

limitation” or “prohibition of action; holding back”). In
contrast, a declaratory judgment “establishes the rights and
other legal relations of the parties without providing for or
ordering enforcement,” Declaratory Judgment, Black’s Law
Dictionary (10th ed. 2014), and noncompliance does not trigger
contempt, Steffel, 415 U.S. at 471. A declaratory judgment thus
does not prevent or limit any action.
The statutory context bolsters this reading of
§ 1252(f)(1). The heading of subsection (f) of 8 U.S.C. § 1252
is “Limit on injunctive relief,” which supports a statutory
construction that its provisions only bar injunctive, not
declaratory, relief. See Alli, 650 F.3d at 1013; Rodriguez, 591
F.3d at 1119; see also Fla. Dep’t of Revenue v. Piccadilly
Cafeterias, Inc., 554 U.S. 33, 47 (2008) (permitting use of
statutory heading as a tool to resolve questions of statutory
interpretation). Plus, a neighboring provision, 8 U.S.C.
§ 1252(e)(1)(A), prevents courts from entering “declaratory,
injunctive, or other equitable relief” in cases involving aliens
excluded under 8 U.S.C. § 1225(b)(1). By expressly including
declaratory relief in § 1252(e)(1)(A) but not § 1252(f)(1),
Congress demonstrated an intent not to bar courts from issuing
classwide declaratory relief under the latter provision. See
Alli, 650 F.3d at 1012-13; Rodriguez, 591 F.3d at 1119; see
also Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (“Where
20

Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” (quoting
Bates v. United States, 522 U.S. 23, 29-30 (1997))).
Additionally, § 1252(f)(1) states that only the Supreme
Court can enjoin the operation of 8 U.S.C. §§ 1221-1232 on a
classwide basis. If no lower court could issue any classwide
relief, “it is difficult to see how the district court could
acquire jurisdiction over the class action in the first place.”
Gerald L. Neuman, Federal Courts Issues in Immigration Law, 78
Tex. L. Rev. 1661, 1686 (2000). Subsequently, “[t]here would be
no case or controversy in the lower court involving the unnamed
class members as parties . . . over which the Supreme Court
could exercise appellate jurisdiction.” Id. Reading § 1252(f)(1)
to bar classwide declaratory relief would thus render
superfluous the statute’s authorization of Supreme Court relief.
See Alli, 650 F.3d at 1016; see also Corley v. United States,
556 U.S. 303, 314 (2009) (“A statute should be construed so that
effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.” (quoting
Hibbs v. Winn, 542 U.S. 88, 101 (2004))).
The final issue is whether classwide declaratory relief in
this case “correspond[s]” to injunctive relief as Rule 23(b)(2)
21

requires. Fed. R. Civ. P. 23(b)(2) (requiring that “final
injunctive relief or corresponding declaratory relief [be]
appropriate respecting the class as a whole” (emphasis added)).
According to the advisory committee’s notes, “[d]eclaratory
relief ‘corresponds’ to injunctive relief when as a practical
matter it affords injunctive relief or serves as a basis for
later injunctive relief.” Id. advisory committee’s note to 1966
amendment. Thus, the main purpose of this requirement is to
avoid certifying class actions under Rule 23(b)(2) that
primarily seek monetary damages. See, e.g., Washington v. CSC
Credit Servs. Inc., 199 F.3d 263, 269-70 (5th Cir. 2000);
Lukenas v. Bryce’s Mountain Resort, Inc., 538 F.2d 594, 595-96
(4th Cir. 1976); Andrew Bradt, “Much to Gain and Nothing to
Lose”: Implications of the History of the Declaratory Judgment
for the (b)(2) Class Action, 58 Ark. L. Rev. 767, 798-99 (2006).
Here, the class does not seek monetary damages, and each
class member could use a declaratory judgment announcing a right
to an individualized hearing after prolonged detention to secure
an individual injunction requiring one. Thus, the available
declaratory judgment in this case corresponds to final
injunctive relief as required by Rule 23(b)(2).4

4

Since the Court declines to decertify the Rule 23 class, it
need not address Plaintiffs’ argument that the action could be
certified as a representative habeas action pursuant to United
States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974).
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ORDER
Plaintiffs’ motions to amend the complaint (Docket No. 384)
and modify the class definition (Docket No. 378) are ALLOWED.
The Government’s motion to decertify the class (Docket No. 377)
is DENIED.
The Court thus certifies the following class: “All
individuals who are or will be detained within the Commonwealth
of Massachusetts or the State of New Hampshire pursuant to 8
U.S.C. § 1226(c) for over six months and have not been afforded
an individualized bond or reasonableness hearing.”

SO ORDERED.

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

23