ALEJANDRO MENOCAL, MARCOS BRAMBILA, GRISEL XAHUENTITLA, HUGO HERNANDEZ, LOURDES ARGUETA, JESUS GAYTAN, OLGA ALEXAKLINA, DAGOBERTO VIZGUERRA, and DEMETRIO VALEGRA, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Appellees,
THE GEO GROUP, INC., Defendant-Appellant, and NATIONAL ADVOCACY CENTER OF THE SISTERS OF THE GOOD SHEPHERD; NATIONAL EMPLOYMENT LAW PROJECT; NATIONAL GUESTWORKER ALLIANCE; NATIONAL IMMIGRANT JUSTICE CENTER; NATIONAL IMMIGRATION LAW CENTER; PANGEA LEGAL SERVICES; PUBLIC CITIZEN; SANCTUARY FOR FAMILIES; SOUTHERN POVERTY LAW CENTER; AMERICAN IMMIGRANTS FOR JUSTICE; ASIAN AMERICANS ADVANCING JUSTICE; DETENTION WATCH NETWORK; HUMAN RIGHTS DEFENSE CENTER; ILLINOIS COALITION FOR IMMIGRANT AND REFUGEE RIGHTS; JUSTICE STRATEGIES; LEGAL AID AT WORK; HUMAN TRAFFICKING PRO BONO LEGAL CENTER; TAHIRIH JUSTICE CENTER; ASISTA IMMIGRATION ASSISTANCE; FREEDOM NETWORK USA, Amici Curiae.
from the United States District Court for the District of
Colorado (D.C. No. 1:14-CV-02887-JLK)
Emery, Norton Rose Fulbright U.S. LLP, Washington, D.C.
(Charles A. Deacon Norton Rose Fulbright U.S. LLP, San
Antonio, Texas; and Dana Eismeier, Burns, Figa & Will,
Greenwood Village, Colorado, with him on the brief), for
Lopez, Outten & Golden LLP, Washington, D.C. (Juno Turner
and Elizabeth V. Stork, Outten & Golden LLP, New York,
New York; R. Andrew Free, Law Office of R. Andrew Free,
Nashville, Tennessee; Alexander Hood, David Seligman, and
Andrew Schmidt, Towards Justice, Denver, Colorado; Brandt
Milstein, Milstein Law Office, Boulder, Colorado; Andrew H.
Turner, The Kelman Beuscher Firm, Denver, Colorado; and Hans
Meyer, Meyer Law Office, P.C., Denver, Colorado, with him on
the brief), for Plaintiffs-Appellees.
D. McCoy and Shalini Agarwal, Southern Poverty Law Center,
Tallahassee, Florida, Alia Al-Khatib, Southern Poverty Law
Center, Miami, Florida, and Lisa Graybill, Southern Poverty
Law Center, New Orleans, Louisiana, filed a brief for the
Southern Poverty Law Center as Amicus Curiae, in support of
H. Rosenbaum and Scott L. Nelson, Public Citizen Litigation
Group, Washington, D.C., filed a brief for Public Citizen,
Inc., and The National Employment Law Project, as Amici
Curiae, in support of Appellees.
Katherine E. Melloy Goettel, Mark Fleming, Claudia
Valenzuela, and Keren Zwick, National Immigration Justice
Center, Chicago, Illinois, filed a brief for National
Immigrant Justice Center, et al., as Amici Curiae, in support
C. Lillie, Nathaniel H. Nesbitt, and Ann C. Stanton, Hogan
Lovells U.S. LLP, Denver, Colorado, filed a brief for Human
Trafficking Pro Bono Legal Center, Tahirih Justice Center,
Asista Immigration Assistance, Freedom Network USA, and
Sancuary for Families, as Amici Curiae, in support of
MATHESON, BACHARACH, and McHUGH, Circuit Judges.
MATHESON, Circuit Judge.
appeal addresses whether immigration detainees housed in a
private contract detention facility in Aurora, Colorado (the
"Aurora Facility") may bring claims as a class
under (1) 18 U.S.C. § 1589, a provision of the
Trafficking Victims Protection Act (the "TVPA")
that prohibits forced labor; and (2) Colorado unjust
Group, Inc. ("GEO") owns and operates the Aurora
Facility under government contract. While there, the
plaintiff detainees (the "Appellees") rendered
mandatory and voluntary services to GEO. Under GEO's
mandatory policies, they cleaned their housing units'
common areas. They also performed various jobs through a
voluntary work program, which paid them $1 a day.
district court certified two separate classes: (1) all
detainees housed at the Aurora Facility in the past ten years
(the "TVPA class"), and (2) all detainees who
participated in the Aurora Facility's voluntary work
program in the past three years (the "unjust enrichment
interlocutory appeal, GEO argues that the district court
abused its discretion in certifying each class under Rule
23(b)(3) of the Federal Rules of Civil Procedure. It
primarily contends that the Appellees' TVPA and Colorado
unjust enrichment claims both require predominantly
individualized determinations, making class treatment
inappropriate. Exercising jurisdiction under 28 U.S.C. §
1292, we affirm.
times relevant to this appeal, GEO owned and operated the
Aurora Facility under contract with the U.S. Immigration and
Customs Enforcement ("ICE"). In operating this
facility, GEO implemented two programs that form the basis
for this case: (1) the Housing Unit Sanitation Policy, which
required all detainees to clean their common living areas;
and (2) the Voluntary Work Program, which compensated
detainees $1 a day for performing various jobs.
Housing Unit Sanitation Policy ("Sanitation
Aurora Facility's Sanitation Policy had two components:
(1) a mandatory housing unit sanitation program, and (2) a
general disciplinary system for detainees who engaged in
"prohibited acts, " including refusal to
participate in the housing unit sanitation program.
the mandatory housing unit sanitation program, GEO staff
generated daily lists of detainees from each housing unit who
were assigned to clean common areas after meal service. Upon
arriving at the Aurora Facility, every detainee received a
handbook (the "Aurora Facility Supplement")
notifying them of their obligation to participate in this
program. Dawn Ceja, the Aurora Facility's Assistant
Warden for Operations, confirmed at her deposition that
"all of the detainees will have a turn on [the common
area cleaning assignments]." App., Vol. II at 483.
the disciplinary system, detainees who refused to perform
their cleaning assignments faced a range of possible
sanctions, including: (1) the initiation of criminal
proceedings, (2) disciplinary segregation-or solitary
confinement-up to 72 hours, (3) loss of commissary, (4) loss
of job, (5) restriction to housing unit, (6) reprimand, or
(7) warning. The Aurora Facility Supplement included an
explanation of the disciplinary system and the possible
sanctions for refusing to clean.
Appellees alleged that the TVPA class members were all
"forced . . . to clean the [housing units] for no pay
and under threat of solitary confinement as punishment for
any refusal to work." App., Vol. I at 19. Five of the
nine named plaintiffs and three other detainees filed
declarations further explaining that they had fulfilled their
cleaning assignments because of the Sanitation Policy's
threat of solitary confinement.
Voluntary Work Program ("VWP")
the Aurora Facility's VWP, participating detainees
received $1 a day in compensation for voluntarily performing
jobs such as painting, food services, laundry services,
barbershop, and sanitation. Detainees who wished to
participate in the VWP had to sign the "Detainee
Voluntary Work Program Agreement, " which specified that
"[c]ompensation shall be $1.00 per day." App., Vol.
V at 779. The Aurora Facility Supplement also specified that
detainees would "be paid $1.00 per day worked (not per
work assignment)" under the VWP. App., Vol. V at 761.
Detainees had the additional option of working without pay if
no paid positions were available.
complaint alleged that the VWP class members were all
"paid . . . one dollar ($1) per day for their [VWP]
labor." App., Vol. I at 19. Five of the nine named
plaintiffs and three other detainees who had participated in
the VWP filed declarations further describing their work.
Their jobs had included serving food, cleaning the
facilities, doing laundry, and stripping and waxing floors.
Their hours had ranged from two to eight hours a day, and
they had all received $1 a day in compensation.
Procedural History The Appellees filed a class
action complaint against GEO in the U.S. District Court for
the District of Colorado on behalf of current and former ICE
detainees housed at the Aurora Facility. The complaint
alleged: (1) a TVPA forced labor claim based on the
Sanitation Policy, and (2) an unjust enrichment claim under
Colorado law based on the VWP.
GEO's Motion to Dismiss
moved to dismiss the complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a
claim. Regarding the TVPA claim, GEO argued that the
Thirteenth Amendment's civic duty exception to the
prohibition on involuntary servitude should also apply to the
TVPA's ban on forced labor. It further contended that such an
exception would extend to government contractors in addition
to the federal government. Regarding the unjust enrichment
claim, GEO asserted sovereign immunity as a government
contractor because ICE "specifically directed [it] to .
. . establish a voluntary detainee work program, and pay the
detainees who volunteer for that program $1.00 per day."
App., Vol. I at 198-99.
district court rejected these arguments and denied GEO's
motion to dismiss the TVPA and unjust enrichment claims.
See Menocal v. GEO Grp., Inc., 113 F.Supp.3d 1125
(D. Colo. 2015). GEO moved for reconsideration of the
court's rulings. The court denied the motion, finding
that GEO "d[id] not identify any intervening change in
controlling law or new evidence previously unavailable"
to warrant reconsideration. Menocal v. GEO Grp.,
Inc., No. 14-cv-02887-JLK, 2015 WL 13614120, at *1 (D.
Colo. Aug. 26, 2015).
then moved for an order certifying an interlocutory appeal
from the orders denying its motion to dismiss and its motion
for reconsideration. It requested that the district court
certify the following questions for interlocutory appeal:
(1) Whether civil detainees lawfully held in the custody of a
private detention facility under the authority of the United
States can state a claim for "forced labor" under
the TVPA, 18 U.S.C. § 1589, for allegedly being required
to perform housekeeping duties.
(2) Whether, under Colorado law, civil detainees may state a
claim for unjust enrichment based on work performed pursuant
to the Voluntary Work Program, absent any alleged reasonable
expectation of being paid more than $1 per day.
(3) Whether a state law claim for unjust enrichment brought
by civil detainees against a federal contractor is barred by
the "government contractor" defense, where such
claims would require that detainees receive additional
compensation even though the contract expressly requires that
compensation of more than $1 per day be approved by the
government's contracting officer.
App., Vol. II at 346. The district court denied GEO's
motion to certify an interlocutory appeal on all three of
these questions. Accordingly, the district court's
rulings on these questions are not properly before us in this
appeal. See 28 U.S.C. § 1292(b) (providing that
a court of appeals may only permit an interlocutory appeal to
be taken from most non-final decisions if the district judge
first certifies the interlocutory appeal).
Appellees' Motion for Class Certification
they prevailed on the motion to dismiss, the Appellees moved
for certification of a separate class for each claim under
Rules 23(a) and (b)(3) of the Federal Rules of Civil
Procedure. For the TVPA claim, the Appellees proposed a class
of "all persons detained in [GEO's] Aurora Detention
Facility in the ten years prior to the filing of this
action" (the "TVPA class"). App., Vol. II at
409. For the unjust enrichment claim, they proposed a class
of "all people who performed work [for the] Aurora
Detention Facility under [GEO's] VWP Policy in the three
years prior to the filing of this action" (the
"unjust enrichment class"). Id. at 418.
opposed the certification of both proposed classes. It argued
that neither class adequately satisfied the Rule 23
requirements. The district court rejected GEO's arguments
and certified both classes as proposed by the Appellees.
See Menocal v. GEO Grp., Inc., 320 F.R.D. 258 (D.
Colo. 2017). It also approved the nine named plaintiffs as
the representatives of both classes. Id. at 271.
petitioned this court for interlocutory review of the class
certifications. We granted GEO's petition for permission
to appeal under Rule 23(f). See Fed. R. Civ. Pro.
23(f) ("A court of appeals may permit an appeal from an
order granting or denying class- action certification . . .
."); 28 U.S.C § 1292(e) (authorizing the Supreme
Court to "prescribe rules . . . provid[ing] for an
appeal of an interlocutory decision to the courts of appeals
that is not otherwise provided for" by statute).
Accordingly, only the district court's order granting
class certification-and not its rulings on whether the
complaint stated TVPA and unjust enrichment claims-is before
begin with our standard of review. We then provide an
overview of the Rule 23 class certification requirements
relevant to this appeal, and additional background on the
TVPA and Colorado unjust enrichment law as needed. We
consider the TVPA and the unjust enrichment classes in turn,
and conclude that the district court did not abuse its
discretion in certifying each class under Rule 23.
Standard of Review
review the district court's decision to certify [a] class
for an abuse of discretion. The district court abuses its
discretion when it misapplies the Rule 23 factors-either
through a clearly erroneous finding of fact or an erroneous
conclusion of law-in deciding whether class certification is
appropriate. Our review is only de novo to the extent we must
determine whether the district court applied the correct
standard. In the end, as long as the district court applies
the proper Rule 23 standard, we will defer to its class
certification ruling provided that decision falls within the
bounds of rationally available choices given the facts and
law involved in the matter at hand." Soseeah v.
Sentry Ins., 808 F.3d 800, 808 (10th Cir. 2015)
(citations and quotations omitted).
Class Certification Requirements
of the Federal Rules of Civil Procedure provides the class
certification requirements. Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 345 (2011). Plaintiffs seeking
class certification must show that the underlying case (1)
satisfies each of Rule 23(a)'s prerequisites, and (2)
falls under at least one of Rule 23(b)'s categories of
class actions. See Soseeah, 808 F.3d at 808. The
district court must undertake a "rigorous analysis"
to satisfy itself that a putative class meets the applicable
Rule 23 requirements. CGC Holding Co. v. Broad &
Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014) (quotations
23(a) sets forth four threshold requirements:
(1) the class is so numerous that joinder of all members is
(2) there are questions of law or fact common to the class;
(3) the 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.
Fed. R. Civ. P. 23(a). Only requirements (2) (the
"commonality" requirement) and (3) (the
"typicality" requirement) are contested in ...