Ahilan Arulanantham, 2016 MacArthur Fellow, ACLU Southern California Offices.

A federal appeals court heard oral arguments this week in a case that challenges the use of class actions in civil rights lawsuits alleging procedural due process violations.

The class action, which the American Civil Liberties Union of Southern California brought 11 years ago, alleges that immigrant detainees have been deprived of their constitutional right to a bond hearing. But much of the arguments on Monday before the U.S. Court of Appeals for the Ninth Circuit focused on whether the Federal Rule 23 of Civil Procedure, which governs class actions, could be applied when the alleged due process violations may be too varied as to each detainee in order to establish commonality.

That question came from the U.S. Supreme Court in a Feb. 27 order remanding the case back to the Ninth Circuit.

Ahilan Arulanantham, senior counsel at the ACLU of Southern California, who argued for the detainee plaintiffs on Monday, said there was no a “plausible argument” against the use of class actions. But if the Ninth Circuit disagrees, it could have “massive implications” on civil rights class actions.

“It is a very big generalization,” he said. “If true, it would also be true of so many contexts in which due process cases have traditionally been resolved on a class basis.”

Steve Stafford, a spokesman for the U.S. Department of Justice, which represented several immigration officials named as defendants in the case, declined to comment.

At oral arguments, and in court documents, Assistant U.S. Attorney Sarah Stevens Wilson told the appeals panel that the various detainees in the case were far too dissimilar to pursue their claims as a class.

“The individual characteristics of the members of the subclass and the varied procedural protections available to them make it impossible for the court to answer the due process question the same way for each of them,” she wrote in an Aug. 8 supplemental memo. “These factual differences prevent deciding or remedying the due process claim in a common manner.”

The case, Rodriguez v. Marin, delves into a lesser-known provision of Rule 23 used in civil rights cases, often to seek injunctive or declaratory relief rather than monetary damages. Rule 23(b)(2) allows class actions if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that the final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

The ACLU's case, which is limited to immigrant detainees in the Central District of California, used that provision of Rule 23 to pursue four subclasses of detainees based on the statutes under which immigration officials detained them. Those included noncitizens convicted of certain crimes and those seeking asylum. The case brought claims under both the Fifth Amendment's due process provision and U.S. immigration law.

Monday's argument is the fourth time the Ninth Circuit has heard the case. In 2009, the Ninth Circuit reversed denial of class certification in the case and, in 2013, affirmed a preliminary injunction. In 2015, the Ninth Circuit granted an injunction that forced immigration officials to provide a bond hearing to detainees incarcerated for six months or more in three of the four subclasses; the DOJ petitioned the U.S. Supreme Court to reverse that holding.

The Supreme Court declined to rule on the constitutional claims. But it reversed as to the claims under U.S. immigration law, leaving the survival of the class in doubt. In particular, the Supreme Court ordered the Ninth Circuit to address several questions focused on whether the case could remain as a class action.

One question focused on the language of an immigration statute, and, if the panel struck the injunctive relief, whether the class action could remain for declaratory relief. But the DOJ chose not to challenge that idea.

“After our decision in the Supreme Court came down, a lot of civil rights and class action practitioners were very concerned about that suggestion, because it could revolutionize a lot of class action law,” Arulanantham said. “The fact that the government is in agreement with us on that had people breathing somewhat easier. But obviously, we're waiting for the court to rule.”

But two other questions asked whether class actions were appropriate given the case was limited now to procedural due process violations and in light of the Supreme Court's Wal-Mart Stores v. Dukes decision in 2011. Those painted a broader brush of concerns.

On July 27, 19 law professors filed an amicus brief insisting that class actions were more than appropriate.

“That struck us as deeply inconsistent with 50 years of civil rights class actions,” one of the professors, David Marcus, at the University of California, Los Angeles, School of Law, told Law.com. The Ninth Circuit, along with several other circuit courts, have not found that Wal-Mart created “steep barriers to civil rights class actions,” he said.

Representing the law professors, Elizabeth Cabraser, of San Francisco's Lieff Cabraser Heimann & Bernstein, wrote in the amicus brief: “Due process challenges, in particular, lend themselves to class certification because they often raise generic questions about how system-wide hearing procedures impact a group of people who depend on them for relief.”

A ruling against the detainees on those grounds could affect other civil rights cases involving government procedures and hearings, such as those surrounding disability or Social Security benefit payments, and “cast aside 40 years of due process class action doctrine,” Arulanantham said. And, even if the Ninth Circuit sides with the detainees, the case is likely to end up back before the Supreme Court.

“The Supreme Court has wanted to limit class actions pretty clearly,” Arulanantham said. “Whether they would be interested in moving the law in this direction by cutting off a procedural vehicle that's been available for a long period of time—that's a different question.”