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Menocal v. Geo Group, Inc.

United States Court of Appeals, Tenth Circuit

February 9, 2018

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,
v.
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.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:14-CV-02887-JLK)

          Mark 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 Defendant-Appellant.

          David 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.

          Scott 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 Appellees.

          Adina 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 of Appellees.

          Andrew 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 Appellees.

          Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.

          MATHESON, Circuit Judge.

         This 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 enrichment law.

         The GEO 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.

         The 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 class").

         On 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.

         I. BACKGROUND

         A. Factual History

         At all 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.

         1. Housing Unit Sanitation Policy ("Sanitation Policy")

         The 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.

         Under 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.

         Under 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.

         The 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.

         2. Voluntary Work Program ("VWP")

         Under 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.

         The 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.

         B. 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.[1]

         1. GEO's Motion to Dismiss

         GEO 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.[2] 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.

         The 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).

         GEO 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).

         2. The Appellees' Motion for Class Certification

         After 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.

         GEO 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.

         GEO 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 us.

         II. DISCUSSION

         We 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.

         A. Standard of Review

         "We 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).

         B. Class Certification Requirements

         Rule 23 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 omitted).

         Rule 23(a) sets forth four threshold requirements:

(1) the class is so numerous that joinder of all members is impracticable;
(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 ...


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