Reid v. Donelan et al

Filing 92

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered: As follows: For the reasons set forth in the attached memo and order, Plaintiffs Motion for ClassCertification under Fed. R. Civ. P. 23 (Dkt. No. 33 ) is hereby ALLOWED. The court certifies the following class: All 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. Plaintiff Reid is appointed class representative, and Nicole Hallet, Muneer Ahmad, Michael J. Wishnie, and the Law Student Interns of the Jerome N. Frank Legal Services Organization at Yale Law School are appointed class counsel pursuant to Fed. R. Civ. P. 23(g). The parties shall submit a joint proposal setting forth a briefing schedule for the filing of dispositive motions no later than February 25, 2014. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
MARK ANTHONY REID, on
behalf of himself and others
similarly situated,
Plaintiff/Petitioner

v.
CHRISTOPHER DONELAN, Sheriff
of Franklin County, et al.
Defendants/Respondents

)
)
)
)
)
)
) C.A. NO. 13-cv-30125-MAP
)
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MEMORANDUM AND ORDER REGARDING
PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
(Dkt. No. 33)
February 10, 2014
PONSOR, U.S.D.J.
I.

INTRODUCTION

Plaintiff, a lawful permanent resident, has been held
in immigration detention pursuant to 8 U.S.C. § 1226(c)
without an opportunity for release on bail.

He has brought

a motion seeking to certify a class of all individuals who
are or will be detained within the Commonwealth of
Massachusetts pursuant to § 1226(c) for over six months and
are not provided an individualized bond hearing.

(Dkt. No.

33.)

Defendants, a number of state and federal government

agents, oppose the motion.

Because the four requirements of

Fed. R. Civ. P. 23(a) are satisfied, and because the
proposed class falls squarely into Rule 23(b)(2), the court
will allow Plaintiff’s motion.
II.

BACKGROUND

The detailed facts underlying this litigation are well
documented in the court’s recent Memorandum and Order
Regarding Plaintiff’s Petition for Habeas Corpus and
Plaintiff’s Motion for Order to Show Cause.

Reid v.

Donelan, –-F. Supp. 2d--, 2014 WL 105026 (D. Mass. Jan. 9,
2014).
To briefly summarize, in November 2012, the state of
Connecticut released Plaintiff from criminal custody, and
Immigrations and Customs Enforcement (ICE) immediately
detained him.

The government invoked § 1226(c), a statute

that permits the detention of certain aliens without an
opportunity for release on bail, to justify Plaintiff’s
fourteen-month detention.
Plaintiff brought this case, relying on Bourguignon v.
MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009), to argue
-2-

that Defendants may only detain an individual without an
individualized bond hearing for a “reasonable” period of
time.

Once that threshold is crossed, the government must

provide the detainee with an opportunity to argue for his or
her release.

This opportunity, of course, will not make

actual release inevitable, or even necessarily likely.
On August 15, 2013, Plaintiff filed the pending Motion
for Class Certification.

Counsel argued the class issue in

tandem with Plaintiff’s habeas petition on December 12,
2013, and the court took both matters under advisement.
On January 9, 2014, the court granted Plaintiff’s
individual Petition for Habeas Corpus. (Dkt. No. 80.)1
Relying on the Supreme Court’s decisions in Zadvydas v.
Davis, 533 U.S. 678 (2001), and Demore v. Kim, 538 U.S. 510
(2003), the Ninth Circuit’s opinion in Rodriguez v. Robbins,
715 F.3d 1127 (9th Cir. 2013), and its prior decision in
Bourguignon, the court concluded that a “reasonableness”
limit does exist in the statute.

Furthermore, it determined

that six months is the ceiling for detention absent
1

Plaintiff’s bond hearing, pursuant to the order, occurred
on February 3, 2014. (Dkt. No. 91.) The Immigration Judge
granted Plaintiff’s request for bond and set a number of
conditions of release.
-3-

individualized consideration, since any holding beyond that
time would be “presumptively unreasonable.”
The court is now tasked with determining whether class
treatment is appropriate.
III.

DISCUSSION

In order to sustain a suit under Fed. R. Civ. P. 23,
Plaintiff must satisfy the four requirements of Rule 23(a)
and show that the proposed class falls into a Rule 23(b)
category.

Plaintiff’s attorneys also request certification

as class counsel and thus must meet the demands of Rule
23(g).2
A.

Rule 23(a)
Plaintiff’s first obstacle, Rule 23(a), is composed of

four elements.

The rule requires that: (1) the class is so

numerous that joinder of all members is impracticable; (2)
questions of law or fact common to the class exist; (3) the
2

Plaintiff also believes that the class can be certified as
a “representative habeas action” pursuant to U.S. ex rel.
Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974). Since the
Rule 23 requirements are satisfied, only limited discussion
on this point is required. The keys to the Sero analysis
are, in essence, commonality, numerosity, and considerations
of judicial economy. The Rule 23 analysis overlaps
significantly with Sero, and therefore the reasons
justifying class treatment in this decision are equally
applicable to that analysis.
-4-

claims or defenses of the representative parties are typical
of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect
the interests of the class.

Rule 23(a).

Plaintiff bears

the burden of establishing each requirement, In re Eaton
Vance Corp. Sec. Litig., 219 F.R.D. 38, 43 (D. Mass. 2003),
and the court must engage in a “rigorous analysis” to
discern whether that burden is met.

Wal-Mart Stores v.

Dukes, 131 S.Ct. 2541, 2551 (2011).

Each factor will be

addressed independently below.
1.

Numerosity

Initially, class certification must be “so numerous
that joinder of all its members is impracticable.”
23(a)(1).

Rule

Numerosity involves a class-specific inquiry,

Gen. Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980), and
requires more than mere speculation.

See Marcus v. BMW of

No. Am., LLC, 687 F.3d 583, 596-97 (3d Cir. 2012).

Although

no specific threshold exists, a class size of forty or more
will generally suffice in the First Circuit.

See George v.

Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 173 (D. Mass.
2012).

A plaintiff need not provide a precise number, as a
-5-

court may draw “reasonable inferences from the facts
presented to find the requisite numersoity.”

McCuin v.

Sec’y of Health & Human Servs., 817 F.2d 161, 167 (1st Cir.
1987).

Moreover, the threshold may be relaxed when a party

seeks only declaratory or injunctive relief, since the
inclusion of future members increases the impracticability
of joinder.

Id.

Here, Plaintiff successfully demonstrates that the
proposed class meets the forty-person threshold and, more
importantly, that joinder is impracticable.

Plaintiff

presents data provided by ICE listing the individuals held
in Massachusetts for over six months pursuant to § 1226(c).
(List of Individuals Detained, Dkt. No. 34, Ex. 3)

At any

given time in the year provided, January 2011 to January
2012, there were between 39 and 42 members of the proposed
class.

Although Defendants believe that this estimate is

outdated and over-inclusive, two factors suggest that the
precise number is actually higher.
First, an influx of future members will continue to
populate the class.

Despite numerous court decisions ruling

against Defendants, see, e.g., Ortega v. Hodgson, No. 11-cv-6-

10358-MBB, 2011 WL 4103138 (D. Mass. Sept. 13, 2011);
Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455 (D. Mass.
2010); Sengkeo v. Horgan, 670 F. Supp. 2d 116 (D. Mass.
2009), the government has remained steadfast to its dubious
interpretation of § 1226(c).

This has coincided with the

government’s expanded focus on detaining criminal-aliens and
prolonged delays in immigration litigation.

See

Transactional Records Access Clearinghouse (TRAC), Average
Time Pending Cases Have Been Waiting in Immigration Courts
as of December 2013, Syracuse University (Dec. 2013),
http://trac.syr.edu/phptools/immigration/court_backlog/
apprep_backlog_avgdays.php.

As a result, increasing numbers

of individuals are held pursuant to this statute beyond six
months, but are not provided an individualized bond hearing.
The potential inclusion of these currently uncountable,
future class members not only increases the number beyond
forty, but also illustrates the transient nature of the
proposed class.

Unforeseen members will join the class at

indeterminate points in the future, making joinder
impossible.

See William B. Rubenstein, Newberg on Class

Actions § 3.15 (5th ed. 2013)(noting that the inclusion of
-7-

future members “may make class certification more, not less,
likely”).

The estimate of 39 to 42 is merely the floor for

this numerosity inquiry when inevitable future members are
taken into consideration.
Plaintiff’s estimate is also conservative since the
class members in this case, including those currently in
detention, are not easily identifiable.

Members are located

in four facilities across the Commonwealth and are housed
among individuals held under a variety of statutory
provisions, for distinct periods of time.

As the court

noted previously, many do not speak English, a majority do
not have counsel, and most are unlikely even to know that
they are members of the proposed class.
105026, at *5.

See Reid, 2014 WL

To expect Plaintiff to find every class

member across Massachusetts and join each one in this suit
is unreasonable under such circumstances.
Thus, since the number of current and future class
members is beyond the forty-person threshold, and because
joinder is impracticable in this case, the proposed class
meets the first Rule 23(a) requirement.
2.

Commonality
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The second element of Rule 23(a) is the existence of a
question of law or fact common to the class.

Rule 23(a)(2).

The key to commonality is that the truth or falsity of a
question “will resolve an issue that is central to the
validity of each one of the claims in one stroke.”
Stores, 131 S.Ct. at 2551.

Wal-Mart

A plaintiff need only establish

“a single common question” to satisfy this requirement.

Id.

at 2256.
Although Plaintiff presents a single question of law
that hovers over the entire case -- namely, whether §
1226(c) requires a bond hearing after an unreasonable period
of detention -- Defendants argue that commonality is lacking
for two reasons.

First, § 1226(c) permits detention for a

variety of legal and factual reasons.

Members of the

proposed class have committed significantly different
crimes, ranging from those involving moral turpitude to acts
of terrorism.

Moreover, the dispositions of the potential

class members’ criminal cases may vary: some may be
convicted of the crime charged, while others may be subject
to detention absent any conviction.

This variety, in

Defendants’ view, undermines any finding of commonality.
-9-

Second, Defendants say, even if a reasonableness
requirement is embedded in the statute, it necessarily
requires a fact-specific inquiry as to whether an
individual’s detention is “unreasonable.”

See Diop v.

ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011); Ly v.
Hansen, 351 F.3d 263, 273 (6th Cir. 2003).

The question of

whether a reasonableness limit exists is only part of the
analysis and, therefore, fails to resolve the claims of the
entire class.
These arguments cannot withstand scrutiny.

The

distinctions Defendants highlight, particularly the varied
criminal histories across the class, are irrelevant to the
court’s ruling on the issue of class certification.

The

question raised by this litigation is not whether any
individual detainee is entitled to release on bail –- a
question that is certainly impacted by the factual
differences asserted.

Instead, the sole question here is

whether an individual detainee has a due process right to
argue for such release.

That question is one purely of law,

resolvable irrespective of the distinctions identified by
Defendants.
-10-

Defendants’ second contention, though ultimately
flawed, strikes at the heart of the commonality analysis:
does the inclusion of a “reasonableness” limit in § 1226(c)
ensure class-wide relief, or does a remedy hinge on
individual considerations?

Given the prior order on

Plaintiff’s individual habeas petition, which addressed that
very question, it would be artificial for the court to
approach this inquiry as though it were writing on a clean
slate.

Indeed, the Supreme Court has opined on the

permissibility of courts’ examining the merits of a case, if
necessary, at this stage of the analysis.

As the Court

said,
Repeatedly, we have emphasized that it may be
necessary for the court to probe behind the
pleadings before coming to rest on the
certification question, and that certification is
proper only if the trial court is satisfied, after
a rigorous analysis, that the prerequisites of
Rule 23(a) have been satisfied. Such an analysis
will frequently entail overlap with the merits of
the plaintiff’s underlying claims. That is so
because the class determination generally involves
considerations that are enmeshed in the factual
and legal issues comprising the plaintiff’s cause
of action.
Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013)
(internal citations and quotations omitted).
-11-

In analyzing Plaintiff’s individual petition, this
court deemed the Ninth Circuit’s six-month approach as most
compatible with Supreme Court precedent, due process
considerations, and administrative constraints.
WL 105026, at *4-6.

Reid, 2014

Thus, in interpreting § 1226(c), the

court not only found a reasonableness limit in the statute,
but determined that the limit resided at the six-month date.
Id.

Since that interpretation, if applied to the entire

class, resolves the claim of every member, the commonality
metric is certainly met.
Even if the commonality query presented itself in a
vacuum, one where the individual habeas petition was still
pending, the court need only re-frame the question to
illustrate the clarity of commonality.

As the Ninth Circuit

said, the question is simply: “May an individual be detained
for over six months without a bond hearing under a statute
that does not explicitly authorize detention for longer than
that time without generating serious constitutional
concerns?”
Cir. 2009).

Rodriguez v. Hayes, 591 F.3d 1105, 1123 (9th
Accordingly, were the court to answer

affirmatively and, therefore, agree with Defendants that
-12-

individual determinations were required, that answer would
still resolve the entire case.

That is, even if Defendants

offered the correct interpretation of the statute, they
would still be providing an answer to a common question of
law.
Therefore, since the answer to a single, legal question
disposes of the claims of the entire class, Plaintiff
satisfies the commonality metric.
3.

Typicality

The third requirement under Rule 23(a) is that the
claims of the class representative must be typical of the
other class members.

Rule 23(a)(3).

“[A] class

representative must be part of the class and possess the
same interest and suffer the same injury as the class
members.”

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156

(1982)(citations and internal quotation marks omitted).
Although the analysis of commonality and typicality “tend to
merge,” id. at 157 n.13, they are different concepts
warranting distinct examinations.

See Connor B. ex rel.

Vigurs v. Patrick, 272 F.R.D. 288, 293 (D. Mass. 2011).
“[C]ommonality evaluates the sufficiency of the class itself
-13-

while typicality evaluates the sufficiency of the named
plaintiff.”

Id. (internal quotations omitted), quoting

Hassine v. Jeffes, 846 F.2d 169, 177 n.4 (3d Cir. 1988).
Defendants, recognizing this overlap, simply apply
their commonality discussion to the typicality analysis.
For the same reasons those arguments were rejected before,
they are unavailing in this context.

Simply put, no

possibility exists that an individual claim or factual
difference will “consume the merits” of this class action.
Durmic v. J.P. Morgan Chase Bank, 10-cv-10380-RGS, 2010 WL
5141359, at *4 (D. Mass. Dec. 10, 2010).
Plaintiff presents the same, single question of law as
his fellow class members.

He seeks the same remedy –- an

individualized bond hearing -- as everyone else.

No serious

objection to typicality can be offered under these
circumstances.
4.

Adequacy

The final Rule 23(a) requirement is that the class
representative must be one who will “fairly and adequately
protect the interests of the class.”

Rule 23(a)(4).

This

requires the party to show “first that the interests of the
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representative party will not conflict with the interests of
any of the class members, and second, that counsel chosen by
the representative party is qualified, experienced, and able
to vigorously conduct the proposed litigation.”

Andrews v.

Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985).
Defendants provide two arguments to attack Plaintiff’s
status as an adequate representative.

First, the list of

potential class members presented by Plaintiff includes
detainees with final orders of removal.

Such aliens,

Defendants posit, are clearly distinct.
Second, the legal and factual differences, discussed
previously, will require each party to present his or her
claim differently.

Each individual litigant will need to

make different strategic decisions respecting his or her
case.

Given this individualized need, any class member

would be an unsuitable representative for any other.
Defendants’ first concern is easily assuaged.

The

class requested, and being certified, only includes those
individuals held under § 1226(c) beyond the six-month mark.

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Any individual held under a different statute is simply not,
for the time being at least, part of this class.3
Defendants’ second contention suffers from the same
flaws as their commonality and typicality arguments.

The

differences they allege speak to the outcome of the bond
hearing -- release on bail -- and not whether a bond hearing
is required in the first place.

Factual differences may

indeed yield different outcomes at individual bond
determinations.

But, in this case, every member is seeking

the same remedy -- the hearing itself, whatever its outcome
-- based on an identical theory.

Plaintiff’s interests are

coextensive with the class, and he is therefore an adequate
class representative.
The fact that the court decided Plaintiff’s habeas
petition before the class certification motion does not pose
a problem in the adequacy analysis.

First, the “inherently

transitory” exception to the mootness doctrine was designed
for precisely this situation.

In Gerstein v. Pugh, 420 U.S.

3

Plaintiff does point out that an individual may be held
under one statute but, due to the nature of his or her
immigration litigation, later held under § 1226(c). At the
point such individuals have been held under § 1226(c) for
six months, they will become members of the class.
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103 (1975), the Supreme Court held that the decision
regarding a named representative’s pretrial detention before
the decision on the class certification motion did not moot
the entire case.

Id., at 110 n.11.

Instead, the court

said, “[I]t is by no means certain that any given
individual, named as plaintiff, would be in pretrial custody
long enough for a district judge to certify a class.”

Id.

Here, it 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.
This is particularly true since any potential class
representative would have the right to seek immediate relief
through an individual habeas petition.
Moreover, Plaintiff retains a continuing interest in
this case.

In filing an individual motion and a motion for

class certification, Plaintiff brings two separate claims: a
claim that he is entitled to relief and a claim that he is
entitled to represent a class.

See U.S. Parole Comm’n v.

Geraghty, 445 U.S. 388, 400 (1980)(finding that a class
representative can appeal the denial of class certification,
despite the fact that his individual petition became moot).
-17-

Although the First Circuit has not determined whether this
applies when an individual’s claim becomes moot before a
class is certified, the Third Circuit has allowed a
plaintiff to continue as a class representative in such a
context.
1987).

Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir.
It would be anomalous to remove a plaintiff from a

case where he files both motions within the same period of
time, simply because the court moves expeditiously to
provide individual relief.4
Plaintiff has also more than met his burden to
demonstrate the adequacy of class counsel.

Plaintiff’s

counsel -- supervising attorneys and law student interns of
the Jerome N. Frank Legal Services Organization at Yale Law
School -- have experience in immigration and constitutional
law, civil rights litigation, and habeas corpus actions.

In

fact, they have previously litigated similar § 1226(c)
challenges in the federal courts.

See, e.g., Bourguignon,

667 F. Supp. 2d 175; Hyppolite v. Enzer, 2007 WL 1794096 (D.
Conn. June 19, 2007).

Counsel also has experience managing

4

Although Plaintiff remains an adequate representative of
the class, the court will consider a motion to amend the
complaint to include additional class representatives.
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class actions.

See Brizuela v. Feliciano, No. 3:13-cv-226-

JBA (D. Conn. filed Feb. 13, 2012); Shepherd v. McHugh, No.
3:11-cv-641-AWT (D. Conn. filed Dec. 3, 2012).

The adequacy

of counsel is made even clearer when examining the Rule
23(g) requirements below.
Rule 23(a) is the essence of a class certification
analysis.

In satisfying the four requirements of Rule

23(a), Plaintiff has successfully cleared the first and most
important hurdle.
B.

Rule 23(b)
In addition to meeting the four requirements of Rule

23(a), Plaintiff must show that the proposed class falls
into one of the three defined categories of Rule 23(b).

The

most applicable here is Rule 23(b)(2), which requires a
showing that “the party opposing the class has acted or
refused to act on grounds generally applicable to the class,
so that final injunctive relief or corresponding declaratory
relief is appropriate with respect to the class as a whole.”
Defendants again assert that individual differences
among the potential class members preclude their eligibility
under this rule.

The government, in its view, does not

treat all § 1226(c) detainees alike.
-19-

Instead, it makes

different determinations related to detention based on
individual factors.

Notably, the government does not

specify how it considers individual characteristics nor,
crucially, does it contend that it provides bond hearings to
any § 1226(c) detainees regardless of these characteristics.
Defendants also believe that 8 U.S.C. § 1252(f)(1) bars
this court from granting class-wide injunctive or
declaratory relief, thus making certification under Rule
23(b)(2) inappropriate.

That statute provides that no court

“shall have jurisdiction or authority to enjoin or restrain
the operation of the provisions of [8 U.S.C. §§ 1221-1231] .
. . other than with respect to the application of such
provisions to an individual alien against whom proceedings
under such part have been initiated.”

8 U.S.C. §

1252(f)(1).
Despite Defendants’ arguments, the proposed class fits
neatly into Rule 23(b)(2).

First, Defendants have acted, or

refused to act, on grounds generally applicable to all
members of the class.

In fact, civil rights actions like

this one, where a party charges that another has engaged in
unlawful behavior towards a defined group, are “prime

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examples” of Rule 23(b)(2) classes.

Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 614 (1997).
Here, it is undisputed that Defendants refuse to
provide any of the class members with an individualized bond
hearing.

Despite alleged differences, members of the class

have all been treated identically with respect to the
opportunity to argue for release on bail.

Defendants have

thus consistently and, in the court’s view, incorrectly
applied § 1226(c) to the entire class.
Second, Plaintiff seeks a single injunction or a single
declaratory judgment -- specifically, an order that §
1226(c) must be read as providing an individualized bond
hearing after six months of detention.

He does not request

any damages that have the potential to muddy the analysis.
As the Supreme Court has recently made clear,
Rule 23(b)(2) applies only when a single
injunction or declaratory judgment would provide
relief to each member of the class. It does not
authorize class certification when each individual
class member would be entitled to a different
injunction or declaratory judgment against the
defendant. Similarly, it does not authorize class
certification when each class member would be
entitled to an individualized award of monetary
damages.

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Wal-Mart, 131 S.Ct. at 2557.

Critically, the entire class

seeks the same remedy, placing it firmly in the Rule
23(b)(2) category.
Defendants’ final argument respecting § 1252(f)(1) is
also fruitless.

At a minimum, class-wide declaratory relief

is available.5 Equitable relief may only be restricted by
“clear and valid legislative command,” or “by a necessary
and inescapable inference.”
328 U.S. 395, 398 (1946).

Porter v. Warner Holding Co.,
Since injunctive and declaratory

relief are distinct, see Steffel v. Thompson, 415 U.S. 452,
471 (1974), the statute, by its own terms, does not
proscribe a class-wide declaratory remedy.
This conclusion is augmented by the First Circuit’s
interpretation of § 1252(f)(1).

In Arevalo v. Ashcroft, 344

F.3d 1 (1st Cir. 2003), the court probed the language of the
clause and gave meaning to both operative terms.
Specifically, it found that “restrain” meant something
different from “enjoin” –- the former referring to a
5

The court is confident, at this stage of the litigation,
to say that class-wide declaratory relief is permissible.
However, since that question also speaks to whether
Plaintiff can obtain a class-wide remedy, this conclusion is
subject to reconsideration at a later phase of the
proceedings.
-22-

temporary injunction and the latter indicating a permanent
injunction.

Id.

at 1013.

In doing so, the First Circuit

defined each key term in § 1252(f)(1), yet did not construe
either as “declaratory relief.”
Finally, persuasive authority recognizing the utility
of class treatment in this circumstance further justifies
the court’s conclusion.

See Hayes, 591 F.3d at 1119; Alli

v. Decker, 650 F.3d 1007 (3d Cir. 2011).

As the Third

Circuit said, “[A]llowing class-wide declaratory relief
would facilitate the Supreme Court review that Congress
apparently intended.”

Alli, 650 F.3d at 1016 (internal

quotation marks omitted).

As a result, the class can, at a

minimum, seek declaratory relief, and therefore
certification as a Rule 23(b)(2) class is appropriate.6
Plaintiff has successfully shown that the class falls
squarely into Rule 23(b)(2) and that class treatment is
appropriate.
C.

Rule 23(g)

6

Whether the class can obtain injunctive, rather than
simply declarative, relief may require a more searching
analysis at some point in the future. However, since some
type of class relief is clearly available, that thornier
question need not be addressed at the current juncture.
-23-

The final consideration is whether class counsel can be
certified under Rule 23(g).

Here, four factors are

relevant:
(I) the work counsel has done in identifying or
investigating potential claims in the action; (ii)
counsel’s experience in handling class actions,
other complex litigation, and the types of claims
asserted in the action; (iii) counsel’s knowledge
of the applicable law; and (iv) the resources that
counsel will commit to representing the class.
Rule 23(g)(1)(A).

Counsel must also “fairly and adequately

represent the interests of the class.”

Rule 23(g)(4)

Plaintiff’s counsel easily meet these requirements.
Class counsel have done considerable work identifying and
investigating the potential claims in this action.
Furthermore, co-counsel Muneer Ahmad and Michael Wishnie
have litigated representative habeas actions before, and
they have experience in Rule 23 class actions.

See Shepherd

v. McHugh, No. 3:11-cv-641-AWT (D. Conn. filed Dec. 3,
2012); Brizuela v. Feliciano, No. 3:13-cv-226-JBA (D. Conn.
filed Feb. 13, 2012).

Counsel have also done extensive work

litigating complex federal civil rights and immigrant rights
cases.

See Doe v. United States, No. 13-cv-2802 (S.D.N.Y.

filed Apr. 26, 2013); Barrera v. Boughton, No. 3:07-cv-1436-24-

RNC, 2010 WL 1240904 (D. Conn. Mar. 19, 2010); Diaz-Bernal
v. Meyers, 758 F. Supp. 2d 106 (D. Conn. 2010); Families for
Freedom v. Napolitano, 628 F. Supp. 2d 535 (S.D.N.Y. 2009);
El Badrawi v. Dep’t of Homeland Sec., 579 F. Supp. 2d 249
(D. Conn. 2008).

Finally, counsel have already devoted

significant resources to this case, and no evidence suggests
that their level of commitment will diminish.

No cogent

argument can be made that Plaintiff’s counsel do not satisfy
the relevant requirements or, as discussed previously, that
counsel cannot adequately represent the interests of the
class.
Ultimately, Plaintiff has shown that this is precisely
the type of case that should move forward as a class action.
As a result, class certification is appropriate.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Class
Certification under Fed. R. Civ. P. 23 (Dkt. No. 33) is
hereby ALLOWED.
The court certifies the following class: “All
individuals who are or will be detained within the
Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c)
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for over six months and have not been afforded an
individualized bond hearing.”

Plaintiff Reid is appointed

class representative, and Nicole Hallet, Muneer Ahmad,
Michael J. Wishnie, and the Law Student Interns of the
Jerome N. Frank Legal Services Organization at Yale Law
School are appointed class counsel pursuant to Fed. R. Civ.
P. 23(g).
The parties shall submit a joint proposal setting forth
a briefing schedule for the filing of dispositive motions no
later than February 25, 2014.
It is So Ordered.

/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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