FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAYLA WILLIS; REAVY

WASHINGTON; LISA HOOPER;

BRANDIE OSBORNE, individually and

on behalf of a class of similarly

situated individuals; THE EPISCOPAL

DIOCESE OF OLYMPIA; TRINITY

PARISH OF SEATTLE; REAL CHANGE,

Plaintiffs-Appellants,

v.

CITY OF SEATTLE; WASHINGTON

STATE DEPARTMENT OF

TRANSPORTATION; ROGAR MILLAR,

Secretary of Transportation for

WSDOT, in his official capacity,

Defendants-Appellees.

No. 18-35053

D.C. No.

2:17-cv-00077-

RSM

OPINION

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, Chief District Judge, Presiding

Argued and Submitted February 4, 2019

Seattle, Washington

Filed November 29, 2019
2 WILLIS V. CITY OF SEATTLE

Before: Sandra S. Ikuta and Morgan Christen, Circuit

Judges, and Jennifer Choe-Groves,* Judge.

Opinion by Judge Choe-Groves;

Partial Concurrence and Partial Dissent by Judge Christen

SUMMARY**

Civil Rights

The panel affirmed the district court’s denial of class

certification in an action challenging the procedures by which

the City of Seattle and the Washington State Department of

Transportation remove unauthorized encampments, camping

equipment, and personal property left on city-owned

property.

Appellants asserted in their motion for class certification

that the City and the Department of Transportation engaged

in an alleged policy and practice of “sweeps” that destroyed

property, violating the unreasonable seizure and due process

clauses under both the U.S. Constitution and the Washington

State Constitution. 

The panel held that Appellants failed to proffer sufficient

evidence and articulate a practice that was common to the

* The Honorable Jennifer Choe-Groves, Judge for the United States

Court of International Trade, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
WILLIS V. CITY OF SEATTLE 3

claims of the proposed class in their motion for class

certification. The panel concluded that it was not an abuse of

discretion for the district court to hold that an alleged practice

affecting each of the Appellants was not discernable from the

record and to deny Appellants’ class action certification

accordingly. The panel disagreed with the dissent’s assertion

that Appellants’ motion for class certification raised a facial

challenge to defendants’ policies as a basis for establishing

commonality for purposes of Fed. R. Civ. P. 23(a). 

Concurring in part and dissenting in part, Judge Christen

agreed, under the circumstances of this case, that plaintiffs

failed to show that their as-applied claims posed common

questions for purposes of Fed. R. Civ. P. 23(a). Judge

Christen stated, however, that plaintiffs also presented

distinct facial challenges to defendants’ camp cleanup

policies and the order denying class certification did not

address these policies. Because the order denying class

certification made no mention of plaintiffs’ facial claims,

Judge Christen would remand for the district court to consider

this issue in the first instance.
4 WILLIS V. CITY OF SEATTLE

COUNSEL

Toby J. Marshall (argued), Terrell Marshall Law Group

PLLC, Seattle, Washington; Emily Chiang, Nancy Talner,

and Breanne Schuster, ACLU of Washington Foundation,

Seattle, Washington; Eric A. Lindberg, Kristina Markosova,

and Todd T. Williams, Corr Cronin Michelson Baumgardner

Fogg & Moore, Seattle, Washington; for PlaintiffsAppellants.

Matthew J. Segal (argued), Taki V. Flevaris, and Athanasios

P. Papailiou, Pacific Law Group LLP, Seattle, Washington;

Patrick Downs, Gregory Narver, Carlton Seu, and Gary

Smith, Seattle City Attorney’s Office, Seattle, Washington;

for Defendant-Appellee City of Seattle.

Alicia O. Young (argued) and Matthew D. Huot, Assistant

Attorneys General; Robert W. Ferguson, Attorney General;

Office of the Attorney General, Olympia, Washington; for

Defendants-Appellees Washington State Department of

Transportation and Rogar Millar.

J. Dino Vasquez and Joshua Howard, Karr Tuttle Campbell,

Seattle, Washington; Eric Tars, National Law Center on

Homelessness & Poverty, Washington, D.C.; for Amici

Curiae Disability Rights of Washington, et al.

Shenoa Payne and Zachariah Allen, Richardson Wright LLP,

Portland, Oregon, for Amici Curiae Civil Procedure

Professors.
WILLIS V. CITY OF SEATTLE 5

OPINION

CHOE-GROVES, Judge:

Multi-DepartmentalAdministrativeRules 08-01 (“MDAR

08-01”), enacted by the City of Seattle in 2008, establish, in

part, standard procedures for the removal of unauthorized

encampments, camping equipment, and personal property left

on city-owned property. The City of Seattle amended its

encampment rules in 2017 by promulgating MultiDepartmental Administrative Rules 17-01 (“MDAR 17-01”). 

The Washington State Department of Transportation

(“WSDOT”) has adopted guidelines instituting similar

removal procedures for unauthorized encampments on state

property, titled “WSDOT’s Guidelines to Address Illegal

Encampments within State Right of Way” (“WSDOT

Guidelines”). Kayla Willis, Lisa Hooper, Brandie Osborne,

and Reavy Washington (collectively, “Appellants”) are four

individuals who live outside on public property and seek to

represent a class of approximately 2,000 other people

similarly situated. They appeal the district court’s order

denying a motion for class certification under Rule 23(b)(2)

of the Federal Rules of Civil Procedure.

Referencing the MDARs and the WSDOT Guidelines

(collectively, “Defendants’ written policies”), Appellants

asserted in their motion for class certification that the City of

Seattle and WSDOT engaged in an alleged policy and

practice of “sweeps” that destroyed property, violating the

unreasonable seizure and due process clauses under both the

U.S. Constitution and the Washington State Constitution. By

bringing this action on behalf of themselves and all others

similarly situated, Appellants sought declaratory and

injunctive relief from the “sweeps.” The district court found
6 WILLIS V. CITY OF SEATTLE

that Appellants satisfied the numerosity requirement of

Rule 23, but concluded that Appellants failed to establish

sufficiently the existence of a practice that applied uniformly

to all proposed class members and was subject to resolution

in a single action. The district court denied the motion for

class certification for failure to satisfy all the requirements of

Rule 23(a).

We have jurisdiction pursuant to 28 U.S.C. § 1292(e) and

Rule 23(f) of the Federal Rules of Civil Procedure, and

review a district court’s order on class certification for an

abuse of discretion. Parra v. Bashas’, Inc., 536 F.3d 975,

977 (9th Cir. 2008) (citing Molski v. Gleich, 318 F.3d 937,

946 (9th Cir. 2003)).

To receive class action treatment, the proposed lead

plaintiffs must meet the four requirements of Rule 23(a) and

at least one requirement of Rule 23(b). Under Rule 23(a), a

party must show: “(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). To meet the second prong, commonality, a party

must demonstrate that they and the proposed class members

have suffered the same injury and have claims that depend on

a common contention capable of class-wide resolution. WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). 

Capable of class-wide resolution “means that determination

of its truth or falsity will resolve an issue that is central to the

validity of each one of the claims in one stroke.” Id. at 350. 

The commonality element may be fulfilled if the court can

determine “in one stroke” whether a single policy or practice
WILLIS V. CITY OF SEATTLE 7

which the proposed class members are all subject to “expose

them to a substantial risk of harm.” Parsons v. Ryan,

754 F.3d 657, 678 (9th Cir. 2014). “These policies and

practices are the ‘glue’ that holds together the putative class

. . . either each of the policies and practices is unlawful as to

every [proposed member] or it is not.” Id. Allegations of

individual instances of mistreatment, without sufficient

evidence, do not constitute a systemic deficiency or

overarching policy of wrongdoing. See id. at 683–84 & n.28

(stating that “precedent does not hold that utterly threadbare

allegations that a group is exposed to illegal policies and

practices are enough to confer commonality,” and concluding

that inmates provided “sufficient evidence of systemic and

centralized policies or practices in a prison system that

allegedly expose all inmates in that system to a substantial

risk of serious future harm” to meet the requirements of

Rule 23(a)).

Here, Appellants failed to proffer sufficient evidence and

articulate a practice that was common to the claims of the

proposed class in their motion for class certification. 

Appellants presented five bases for commonality before the

district court in their motion, and each basis relates to

whether Defendants’ course of conduct, such as failing to

provide adequate notice and removing or destroying personal

property, raises a common question. Although the record

contains voluminous declarations, photographs, and videos in

support of a broad description of “sweeps,” Appellants

notably do not point to a specific practice that applies

uniformly to all proposed class members. Despite the broad

allegations in their complaint, there is no evidence that every

Appellant has experienced the same challenged practice or

suffered the same injury due to the implementation of the

MDARs or the WSDOT Guidelines. In fact, Appellants
8 WILLIS V. CITY OF SEATTLE

themselves acknowledged that “each sweep is different.” We

conclude that it was not an abuse of discretion for the district

court to hold that an alleged practice affecting each of the

Appellants was not discernable from the record and to deny

Appellants’ class action certification accordingly.

We cannot agree with our dissenting colleague that

Appellants’ motion for class certification raises a facial

challenge to the MDARs or the WSDOT Guidelines as a

basis for establishing commonality for purposes of

Rule 23(a). “A facial challenge is an attack on a law itself as

opposed to a particular application.” City of Los Angeles v.

Patel, ___U.S. ___, ___, 135 S. Ct. 2443, 2449 (2015). Such

challenges are considered the most difficult to mount

successfully. See id. A facial challenge is a claim that a law

or policy is unconstitutional in all of its applications. See id.

at 2451. When assessing whether a law or policy meets this

standard in the context of a Fourth Amendment challenge, a

court considers only those applications of the law in which it

actually authorizes conduct. See id.

Appellants articulated only the following five questions

of fact and law in support of their commonality argument in

their motion for class certification:

(1) whether Defendants have a practice and

policy of seizing and destroying the personal

property of people living outside without a

warrant, probable cause, adequate notice, an

opportunity to have a meaningful pre- or postdeprivation hearing, or an opportunity to

retrieve vital personal property before its

seizure or destruction; (2) whether

Defendants’ policy and practice violates
WILLIS V. CITY OF SEATTLE 9

Plaintiffs’ constitutional rights against

unreasonable search and seizures under the

U.S. Constitution; ([3]) whether Defendants’

custom, policy, or practice violates class

members’ right to privacy under Article I,

Section 7 of the Washington State

Constitution; and ([4]) whether Defendants’

custom, policy, or practice violates class

members’ constitutional rights to due process

under the U.S. Constitution; and ([5]) whether

Defendants’ custom, policy, or practice

violates class members’ constitutional rights

to due process under Article I, Section 3 of the

Washington State Constitution.

None of these five questions of fact or law challenges a

written law or policy as unconstitutional. The “practice and

policy” to which these questions allude is Defendants’ alleged

pattern of destroying personal property “with utter disregard

of even their own regulations.”1 Appellants have not

suggested that an attack on the regulations themselves

supplies a common question of fact or law.

In making their commonality argument, Appellants also

did not claimthat Defendants’ policies are unconstitutional in

1

In their motion for class certification, Appellants claimed that

“Defendants have conducted these sweeps sporadically, unpredictably,

and with utter disregard of even their own regulations . . . . Defendants

have failed to follow any consistent procedure . . . . Rather, Defendants

frequently intentionally and summarily seize and/or destroy personal

property and possessions within a targeted area, without a warrant or

probable cause, without providing adequate and effective notice, without

affording an opportunity to be heard, and without providing a meaningful

opportunity for people to retrieve their belongings.”
10 WILLIS V. CITY OF SEATTLE

all relevant applications, which is required for a facial

challenge. See Patel, ___ U.S. at ___, 135 S. Ct. at 2451. On

the contrary, Appellants acknowledge that Defendants’

allegedly unconstitutional “pattern or practice is a usual

course of conduct, and the fact that Defendants may have

occasionally deviated from that course does not defeat

certification.”

Appellants themselves have dismissed the relevance of a

facial challenge as a basis for commonality, stating that “[t]he

City’s argument that Plaintiffs have not facially challenged

Defendants’ policies or practices is irrelevant to class

certification because Plaintiffs have shown that Defendants’

conduct places all unhoused persons in Seattle at risk.”

Because Appellants’ commonality argument before the

district court rested upon extra-regulatory conduct,we decline

to read Appellants’ argument as premised upon a facial

challenge. We also decline to rewrite Appellants’

commonality argument for themto include a facial challenge. 

See Just Film, Inc. v. Buono, 847 F.3d 1108, 1115 (9th Cir.

2017) (“The party seeking class certification bears the burden

of demonstrating that the class meets the requirements of

Federal Rule of Civil Procedure 23.”). Doing so would run

contrary to the fundamental principle that courts should

neither anticipate a question of constitutional law in advance

of the necessity of deciding it nor formulate a rule of

constitutional law broader than is required by the precise facts

to which it is to be applied. See Washington State Grange v.

Washington State Republican Party, 552 U.S. 442, 450

(2008).

The dissent cobbles together statements fromthe “Factual

Background” section of Appellants’ motion for class
WILLIS V. CITY OF SEATTLE 11

certification to argue that Appellants adequately presented a

facial challenge to the MDAR and WSDOT Guidelines as a

basis for establishing commonality. We disagree. Appellants

mention in passing in their motion that sweeps were

conducted “pursuant to official policies,” and later that the

policies “fail on their face to provide requisite procedural

safeguards.” The Appellants’ Second Amended Complaint

also makes general and conclusory statements about the

Guidelines’ deficiencies, without arguing that a single policy

would be unconstitutional in all its applications.2 But when

Appellants actually provide their argument to the district

court regarding why class members share common questions

of law and fact, Appellants do not explain how any alleged

facial deficiencies in the Guidelines raise such common

questions, or how any such deficiencies caused class

members to suffer the “same injury.” Wal-Mart Stores, Inc.

v. Dukes, 564 U.S. 338, 350 (2011). Because it was not

presented with a distinct argument regarding how facial

deficiencies in the Guidelines raise questions of law or fact

common to the class, the district court did not err in declining

to rule on this issue when deciding the motion for class

certification.Instead, it properly addressed arguments relating

to facial challenges only when ruling on the Appellants’

motion for preliminary injunction, where such facial

challenges were raised.

Even if the isolated statements that the dissent has

plucked from the Appellants’ motion had been argued in the

motion as a basis for commonality, Appellants’ claim would

2 The dissent claims that the Appellants argue that “the policy

allowing the destruction of property valued at less than $100 cannot be

carried out in a constitutional manner.” No such cognizable argument

appears in the operative complaint.
12 WILLIS V. CITY OF SEATTLE

not present a cognizable facial challenge. Appellants’

arguments primarily focus on how the Guidelines give

employees too much discretion, rather than identify how any

alleged deficiency resulted in a common injury to the

constitutional or statutory rights of all class members. Under

Dukes, such challenges do not “provide the commonality

needed for a class action.” Id. at 355.

Based upon Appellants’ failure to proffer sufficient

evidence of a practice that was common to the claims of the

proposed class members or lodge a facial challenge in

satisfaction of the Rule 23(a) commonality requirement, we

readily conclude that the district court’s refusal to grant class

certification was not an abuse of discretion.

AFFIRMED.

CHRISTEN, Circuit Judge, concurring in part and dissenting

in part:

Under the circumstances of this case, I agree that

plaintiffs failed to show their as-applied claims pose common

questions for purposes of Fed. R. Civ. P. 23(a), but plaintiffs

also presented distinct facial challenges to defendants’ camp

cleanup policies and the order denying class certification did

not address them. My colleagues respond to plaintiffs’ facial

challenges in two ways. First, they decide plaintiffs failed to

present any. Then, they pivot and acknowledge plaintiffs

raised facial arguments but decide that the district court was

not required to rule on them. Because the record plainly

shows that plaintiffs brought facial challenges, and because
WILLIS V. CITY OF SEATTLE 13

I know of no authority allowing the claims to be overlooked,

I respectfully dissent.

* * *

Plaintiffs filed a motion for class certification and a

motion for preliminary injunction. Plaintiffs based both

motions on the allegations found in the Second Amended

Complaint. The motions were argued simultaneously and the

district court issued one order. The transcript of the hearing,

as well as the district court’s order, confirm that the court

recognized plaintiffs presented facial challenges.

The written order denying plaintiffs’ motions discussed

and summarized plaintiffs’ facial constitutional claims:

Plaintiffs contend they are likely to succeed

on the merits of their Fourth and Fourteenth

Amendment claims for two reasons. Plaintiffs

first argue the City’s Updated Encampment

Rules are unconstitutional on their face. To

support this argument, Plaintiffs contend the

Updated Encampment Rules’ definitions of

“personal property,” and “hazardous items,”

violate the Fourth Amendment. Plaintiffs also

contend the Updated Encampment Rules are

facially unconstitutional under the Fourteenth

Amendment because their definitions of

“obstruction,” “immediate hazard,” and the

creation of “emphasis areas,” essentially do

away with pre-seizure notice and provide City

personnel with too much discretion.
14 WILLIS V. CITY OF SEATTLE

(emphasis added). The district court inquired about these

claims at the hearing on plaintiffs’ motions. The district court

stated, “plaintiffs’ concern is . . . based on the city’s policies,”

correctly observed that “Plaintiffs are basically raising an

official challenge to the MDARs,” and asked the City why

that claim was not “common to all the proposed class

members here[.]” Leaving no doubt that facial challenges

were on the table, the City conceded “a facial challenge

would be common[,]” but urged the district court to deny

plaintiffs’ motion for class certification because there was

“really essentially no merit to the facial challenge” plaintiffs

asserted. The City was right to concede the existence of the

facial claims, but it badly missed the mark when it conflated

the merits of the facial claims with whether the claims

presented a common question. Whether a facial challenge is

meritorious is the answer to a common question; it is not a

reason to deny class certification. See Amgen, Inc. v. Conn.

Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (“Rule 23

grants courts no license to engage in free-ranging merits

inquiries at the certification stage.”).

A cursory review of plaintiffs’ motion for class

certification shows that they did indeed articulate distinct

facial challenges to defendants’ cleanup policies. Plaintiffs

argued that the City’s “official policies fail on their face to

provide requisite procedural safeguards to ensure that the

rights of people living outside are not violated when a sweep

is conducted[,]” and “Defendants’ policies contemplate on

their face arbitrary enforcement and unbridled employee

discretion, and lack meaningful oversight and enforcement

mechanisms.” (emphasis added). The majority initially

asserts that plaintiffs did not raise a facial challenge at all. 
WILLIS V. CITY OF SEATTLE 15

Majority Opinion at 8 (“We cannot agree . . . that Appellants’

motion for class certification raises a facial challenge . . . .”).1

After denying that plaintiffs raised facial challenges, the

majority retreats, acknowledges that plaintiffs did raise such

claims, but decides the court was not obliged to rule on them. 

The majority contends that plaintiffs’ facial arguments were

made in the wrong section of plaintiffs’ motions, or were

made only in passing. Majority Opinion at 10–11. The

salient point is that the district court correctly recognized that

plaintiffs raised facial challenges in the operative complaint

and in connection with their motion for class certification. 

Despite the majority’s attempts to wave these arguments

away, I know of no rule permitting them to be brushed aside

without a ruling.

The majority cites City of Los Angeles v. Patel, 135 S. Ct.

2443 (2015), and concludes that plaintiffs must not have

raised facial challenges because they “did not claim

Defendants’ policies are unconstitutional in all relevant

applications, [as] required for a facial challenge.” Majority

Opinion at 9–10. But the complaint alleged precisely that. 

Specifically, plaintiffs alleged “[e]ven if Defendants’ sweeps

were conducted fully in accordance with both the MDAR and

the WSDOT Guidelines, they would still be unconstitutional.”

(emphasis added). There is no way to read this allegation as

anything other than a contention that defendants’ policies are

unconstitutional no matter how they are applied. In the

1 The majority also argues that “[n]one of the[] five questions of fact

or law [presented by plaintiffs] challenges a written law or policy as

unconstitutional.” Majority Opinion at 8–9. This is puzzling, as the

majority makes this assertion after enumerating several practices, policies,

and customs challenged by plaintiffs as unconstitutional.
16 WILLIS V. CITY OF SEATTLE

language of Patel, this was an unambiguous assertion that

defendants’ policies are unconstitutional “in all of [their]

applications.” Patel, 135 S. Ct. at 2451 (quotation marks

omitted). Plaintiffs were not required to incant magic words,

and the pleading undoubtedly gave defendants fair notice of

plaintiffs’ facial claims.

Plaintiffs’ facial challenges were not afterthoughts raised

for the first time in their motions for class certification or

preliminary injunction; they were included in the operative

complaint. See Updike v. Multnomah Cty., 870 F.3d 939, 952

(9th Cir. 2017) (observing that Fed. R. Civ. P. 8(a)(2)

requires only that “allegations in the complaint give the

defendant fair notice of what the plaintiff’s claim is and the

grounds upon which it rests” (internal quotation marks

omitted)). Plaintiffs’ Second Amended Complaint includes

the allegation that defendants’ policy allowing the destruction

of property valued at less than $100 cannot be carried out in

a constitutional manner—i.e., the policy is unconstitutional in

all relevant applications. See Brief of Civil Procedure

Professors as Amici Curiae In Support of PlaintiffsAppellants, at 7 (citing Mathews v. Eldridge, 424 U.S. 319

(1976), and observing “due process challenges to government

policies . . . lend themselves to class certification because

they often raise generic questions about how system-wide

procedures impact a group of people who depend on those

procedures for relief”). Plaintiffs’ due process argument is

certainly colorable. Whether plaintiffs could ultimately

prevail is beside the point. Rule 23(a)’s commonality inquiry

is concerned with whether the facial validity of the policy

raises a common question that can be resolved in one stroke,

and this one plainly can.
WILLIS V. CITY OF SEATTLE 17

The majority contends that “[n]o such cognizable

argument [concerning the $100 policy] appears in the

operative complaint.” Majority Opinion at 11 n.2.

Unquestionably, it does. In a section of the complaint entitled

“Defendants’ Official Policies Governing Sweeps are

Unconstitutional,” the complaint identifies a laundry list of

policies that plaintiffs contend violate due process even if

“conducted fully in accordance with” defendants’ official

policies. In a subsection entitled “Defendants’ Official

Policies Fail to Provide for Adequate and Effective Notice,”

the complaint describes how the notice requirements of the

MDAR and WSDOT Guidelines were constitutionally

deficient. There, the complaint specifically identifies the

policy allowing for the destruction of property valued at less

than $100 as an exception to the guidelines’ notice

requirements that “on [its] face make[s] it impossible for

people living outside to safely live and store their belongings

without constant risk that everything will be taken from them

with no notice.”

The majority takes issue with plaintiffs’ contention that

defendants’ policies grant too much discretion to employees

tasked with clearing camps. But it does not adequately

explain why a facial challenge alleging that public officials

have been given too much discretion cannot supply a

common question for purposes of Rule 23(a). See Brief of

Civil Procedure Professors as Amici Curiae In Support of

Plaintiffs-Appellants, at 9 (observing that plaintiffs contend

defendants’ policies are impermissibly vague and opining that

this case “raises system-wide questions about the

constitutionality of a government policy, [and] is precisely

the kind of suit that will allow the court to answer . . . claims

‘in one stroke’”). The majority relies on a flawed extension

of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). 
18 WILLIS V. CITY OF SEATTLE

Majority Opinion at 11–12. In Dukes, the plaintiffs did not

allege the corporate policy granted managers too much

discretion; they alleged that store managers discriminated on

the basis of sex. 564 U.S. at 343–45. Their attempt to certify

a class failed because there was no common issue regarding

the managers’ individual decisions. Id. at 349–55. Here,

plaintiffs do not allege the discriminatory application of a

discretionary policy; they allege—among other things—that

defendants’ official policy fails to satisfy due process

regardless of how it is applied. Plaintiffs’ contentions were

not so indistinct that they did not warrant consideration.

Rule 23 provides a “means of vindicating the rights of

groups of people who individually would be without effective

strength to bring their opponents into court at all.” Benjamin

Kaplan, A Prefatory Note, 10 B.C. Indus. & Com. L. Rev.

497, 497 (1969). It provides a critical procedural device for

important cases like this one. Among other allegations,

plaintiffs argue their due process rights were violated by a

written policy providing that seized property did not need to

be stored if it was valued at less than $100. Plaintiffs’ asapplied challenges illustrated this policy’s real world

consequences, including examples in which putative class

members were left without their identification or

medication—including insulin. It is not hard to imagine the

Catch-22 nightmare of being denied life-sustaining benefits

for failure to show proof of identification, and being unable

to obtain replacement identification because all of one’s

worldly possessions were lost in a camp sweep.

In recent years, class action litigation has more often been

initiated to vindicate large numbers of small-dollar consumer

claims, but as the amici curiae civil procedure professors

explain, courts have long recognized that facial constitutional
WILLIS V. CITY OF SEATTLE 19

challenges present the archetypal common question for class

certification. See Brief of Civil Procedure Professors as

Amici Curiae In Support of Plaintiffs-Appellants, at 7–9. 

Where a proposed class faces substantial harm caused by a

governmental policy, Rule 23 can provide an effective

vehicle for determining whether the policy, on its face,

violates the federal Constitution. Such facts present issues

ripe for class action resolution because they can “resolve an

issue that is central to the validity of each one of the claims

in one stroke.” See Dukes, 564 U.S. at 350.

The district court concluded that plaintiffs were not likely

to succeed on the merits of their facial challenges and denied

plaintiffs’ motions in an order that focused entirely on their

failure to offer evidence of the common practices they

challenged on an as-applied basis. The court did not rule on

the antecedent question posed by plaintiffs’ motion to certify

the proposed class: whether plaintiffs’ facial claims presented

common questions for Rule 23(a) purposes. Because the

order denying class certification made no mention of

plaintiffs’ facial claims, I would remand for the district court

to consider this issue in the first instance. See Edwards v.

First Am. Corp., 798 F.3d 1172, 1177 (9th Cir. 2015) (legal

errors in class certification orders are “per se” abuses of

discretion).