FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

K A YLA W I L L I S ; REA

V Y WA S H I N G T ON ; L I S A H O O P E R ; B R A ND I E O S B O R

NE , individually and on behalf of a class of sim ilarly situated individuals; T HE E P I S C O P AL D I O C E S E O F O LYMP I A ; T R I N I T Y P AR I S H O F S EA T T L E ; REAL C H A N GE , Plaintiffs-Appellants
,

v

.

C I T Y O F S EAT T L E ; WA S H I N G T ON S TA T E D E P A

R T ME N T O F T R A N S P O R TAT I ON ; R O G

AR M I L LAR , Secretary of Transportation for W S DOT, 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 W estern District of W ashington Ricardo S. Martinez, Chief District Judge, Presiding

Argued and Subm itted February 4, 2019

Seattle, W ashington

Filed Novem

ber 29, 2019W I L L I S V

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Before: Sandra S. Ikuta and Morgan Christen, Circuit Judges, and Jennifer Choe-Groves, * Judge.

O pinion by Judge Choe-Groves; P artial Concurrence and Partial Dissent by Judge Christen

SUMMARY * *

C ivil Rights

Th e panel affirm ed the district court’s denial of cla s s certification in an action challenging the procedures by which the City of Seattle and the W ashington S tate Departm ent of Transportation rem ove unauthorized encam pm ents, cam

ping equipm ent, and personal p roperty left on city-owned property.

Appellants asserted in their m o tion for class certification that the City and the Departm ent of Transport a tion 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 W ashington State Constitution.

The panel held that Appellants failed to proffer sufficient evidence a n d a rticulate a practice that was comm on to the

* The Hono rab l e J ennifer Choe-Groves, Judge for t he United States Court of International Trade, sitting by designation.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.W I L L I S V

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cla i ms o f the proposed class in their m otion for class certification. The panel concluded that it was not an abuse o f discretion f

or the district court to hold that an alleged practice affecting each of the Appellants was n ot discernable from the record and to deny Appellants’ class action cert ifi cation accordingly. The panel disagreed with the dissent’s assertion that Appellants’ m otion for class certification raised a facial challenge to defe n d a n ts’ policies as a basis for establishing

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

Concurring in p art and dissenting in part, Judge Christen agreed, under the circ u m stances of this case, that plaintiffs failed to show that their as-applied clai ms posed comm on questions for purposes of Fed. R. Ci v

. P. 23(a). Judge Ch risten stated, however, that plaintiffs also presen t e d d istinct facial challenges to d efendants’ cam p clea nup policies and the order d en y i n g class certification did not address these p o l ic i e s. Because the order denying class certification m ade n o m e nt i o n of plaintiffs’ facial claim s, Judge Christen would rem and for the district court to consider this issue in the first instance.W I L L I S V

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C OUNSEL

Toby J. Marshall (argued), Terr e l l Marshall Law Group PLLC, Seattle, W ashington; Em ily Chiang, Nanc y Talner, and Breanne Schuster, ACLU o f W ashington Foundation, Seattle, W ashington; Eric A. L indberg, Kristina Markosova, and Todd T. W illiam s, Corr Cronin Michelson Baum gardner Fogg & Moore, Seattle, W ashington; for Plai ntiffsAppellants.

Matthew J. Segal (argued), Taki V. Flevaris, and A thanasios P. Papailiou, Pacific Law Group LLP, Seattle, W ashington; Patrick Downs, Gregory Narver, Carlton Seu, a n d Gary Sm ith, S eattle City Attorney’s Office, Seattle, W ashin g to n ; for Defendant-Appellee City of Seattle.

Alicia O. Young (argued) and Matthew D. Huot, Assistant Attorneys Gener a l ; Robert W

. F erguson, Attorney G eneral; Office of the Attorne y General, Olym p ia, W ashington; for Defendants-Appellees W ashington State Departm ent o f Transportation and Rogar Millar.

J. Dino Vasquez and Joshua Howard, Karr Tuttle Cam pbell, Se at t le, W ashington; Eric Tars, N ational Law Center on Hom elessness & Poverty, W ashington, D.C.; for Ami ci Curiae Disability Rights of W ashington, et al.

Shenoa Payne and Zachariah Allen, Richardson Wright LLP, Portland, Oregon, f

or Am ici C uriae Civil Procedure Professors.W I L L I S V

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OPINION

CHOE-GROVES, Judge:

Mu l t i

- D e p a

r t m e nt a l A d

m i n i s t r a t i v e R u l e s 0 8

- 0 1 ( “ M D A R 08-01”), enacted by the City of Seattle in 2008, establish, in part, standard procedures for the rem oval of unauth o r ized

en cam p m ents, cam

ping equipm ent, and perso n a l p ro p erty lef t

on city-owned pro p e rty

. The C ity of Seattle am ended its

encam p m ent rules in 2017 by prom ulgati ng MultiDepartm ental A dm inistrative R ules 17-01 (“MDAR 17-01”). The W ashington State Departm ent of Transportation (“W SDOT”) has adopted guidelines instituting sim ilar

rem oval procedures for unauthorized encam pm ents o n state property, titled “W SDOT’s Guidelines to Address Illegal Encam pm ents within State Right of W ay” (“W S DOT Guidelines”). Kayla W illis, Lisa Hooper, Brandie Osborne, and Reavy W ashington (collectively, “Appellants”) are four individuals who live outside on public p roperty and seek to represent a class of approxim ately 2 ,000 other people sim ilarly si tuated. They appeal the district court’s order denying a m o tion for class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure.

Referencing the MDARs and the W SDOT Guide l i nes (coll ectively, “Defendants’ written policies”), Appellants asserted in their m otion for class certification that the City o f Seattle and W SDOT engaged in an alleged pol i cy and practice of “sweeps” that d estroyed property, violating the unreasonable seizure and due process clauses under both the U.S. C onstitution and the W ashington State Constitution. By bring i n g this action on behalf of them selves and all others sim ilarly situated, Appellants sought dec laratory and injunctive relief from the “sweeps.” The district court f oundW I L L I S V

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that Appellan ts satisfied the num erosity requirem ent o f Rule 23, but concluded that Appellants failed to establish sufficiently the existence of a practice that applied uniform ly
to all proposed class m em bers and was subject to resolu t i on i n a single action. The district court denied the m otion fo r class certification for failure to satisfy all the requirem ents o f Rule 23(a).

W e have jurisdiction p ursuant to 28 U.S.C. § 1292(e) and Rule 23(f) of the Federal Rules of Civil Procedu r e , a n d review a district court’s order on c l a s s c e rtification f or an abuse of d i s c r etion. Pa rra v. Bashas’, Inc.
, 536 F.3d 975, 977 (9th Cir. 2 008) (citing Molski v. Gleich
, 318 F.3d 937, 946 (9th Cir. 2003)).

To receive class action treatm ent, the proposed lead plaintiffs m

ust m eet the four requirem ents of Rule 23(a) and
at least o n e requirem ent of Rule 23(b). Un d er Rule 23(a), a party m ust show: “(1) the class is so num erous that joinder o f all m em bers is im practi cable; (2) there are questions of law

or fact comm on to the class; (3) the claim s or defenses of the representative parties are typical of the claim s or defenses o f the class; and (4) the representative parties will fa ir l y and adequately protect the interests of th e cl a s s .” Fed. R. Civ. P. 23(a). To m eet the second p r ong, comm onality, a party

m ust dem onstrate that they and the proposed class m em bers have suffered the sam e injury and have claim s that d epend on

a comm on contention capable of class-wide resolution. WalMart Stores, Inc. v. D ukes , 5 6 4 U .S. 338, 349–50 (2011). Capable of class-wide resolution “m eans that determ ination of its truth or falsity will resolve an issue that is central to the validity of each one of the claim s in one stroke.” Id. at 350. The comm onality elem ent m ay b e fulfilled if th e court can determ ine “in one stroke” whether a single policy or practiceW I L L I S V

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which the proposed class m em bers are all subject to “expose them to a substan t i al risk of harm .” Parsons v. Ryan
, 754 F.3d 6 57, 678 (9th C ir. 2014)

. “These policies and practices are the ‘glue’ that holds together the putative class

. . . either each of the policies and p ractices is unlawful as to every [proposed m em

ber] or it is n ot.” Id. Al l egations o f indiv i du al instances of m istreatm ent, without sufficient evidence, do not constitute a system ic d e ficiency o r overarching policy of wrongdoing. See id. at 683–84 & n.28 (stating that “precedent does n ot h old that utterly threadbare allegations th at a group is exposed to illegal p olicies and practices are enough to confer comm onality,” and concluding that inm ates p rovided “sufficie n t e vidence of system ic and centrali ze d p olicies or p ractices in a prison system that allegedly exp o s e all inm ates in that system to a substantial ris k o f serious future harm ” to m eet the requirem ents o f Rule 23(a)).

Here, Appellants failed to proffer sufficient evidence and articulate a prac ti c e that was comm on to the claim s of the proposed class in their m otion for class certifi c a ti o n. Appellants pr e s e n ted five bases for comm onality before the district court in their m ot i o n , a nd each basis relates to whether Defendants’ course o f c o n duct, such as failing to provide adequate notice and rem oving o r destroying personal propert y , raises a comm o n q uestion. Although the record contains volum in o u s d e claration s, p hotographs, and videos in
sup port of a broad description of “sweeps,” Appellants notably do not point to a s p e cific practice that applies uniform ly to all proposed class m em bers. Despite the broad allegations in their com

plaint, there is no evidence that every Appellant has experienced the sam e challenge d practice o r suffered the sam e injury due to the im p lem enta t i o n o f the MDARs or the W SDOT Guidelin e s

. In fact, AppellantsW I L L I S V

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them selves acknowledged that “each sweep is different.” W e 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 d iscernable f rom the record an d t o deny Appellants’ class action certification accordingly.

W e cannot agr ee w ith o ur dissenting colleague that Appellants’ m otion for class certificatio n raises a facial challenge to the MDARs or the W S DOT Guid e l in e s as a bas i s for establishing comm o nality for purposes o f Rule 23(a). “A facial challenge is an attack on a law itself as opposed to a particula r ap p l ication.” City of Los Angeles v. Patel
, ___U.S. ___, ___, 135 S. Ct. 2443, 2449 (2015). Such challenges are co nsidered the m ost difficult to m ount successfully. S

ee 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 m eets this standard in the context of a Fourth Am endm ent challenge, a
court considers only those applications of the law in which it actually authorizes conduct. See id.

Appellants articulated only the followi n g five questions of fact and law in support of their com m onality argum ent in their m otion for class certification:

(1) whether Defendants have a pract i ce and policy of seizing and destroying the personal
p r o perty of p eople living outside without a warrant, prob able cause, adequate notice, an opportunity to have a m eaningful pre- or postdeprivation h e aring, o r an o pportunity to retrieve vital personal property b efore its

s e i z u r e o r d e s t r u c t i o n ; ( 2 ) w h e t h e r Defendants’ policy and practice violatesW I L L I S V

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P l a i n t i f f s ’ c o n s t i tu t i o n a l r i g h t s a g a i n s t unreasonable search and seizures under the U.S. Constitution ; ([3]) whether Defendants’
custom , policy, or practice violates class

m em be r s’ right to privacy under Article I, S e c t i o n 7 o f t h e Wa s h i n g t o n S t a t e Constitution; and ([4]) whe th er Defendants’
custom , policy, or prac tice violates class

m em bers’ constitutional rights to due process under the U .S. C onstitution; and ([5]) whether Defendants’ custom , policy, o r practice violates class m em

b ers’ cons t i tutional rights
to due process under Article I, Section 3 of the W ashington State Constitution.

Non e o f these five questions of fact or law challenges a written law or policy as unconstitutional. The “practice and policy” to which th ese q

u estio n s allu d e is D ef

endants’ alleged pattern of destroying personal property “with utter d isregard of even their own regulations.” 1 Appellants have not suggested tha t a n attack on the regulations them selves supplies a comm o n question of fact or law.

In m aking their comm onality argum ent, Ap p ellants also did not claim that D efendants’ policies are unconstitutional in

1 In their m otion for class certification, Appellants claim ed t hat “Defendants have conducted these sweeps sporadically, unpre d i ctably, and with utter disregard of even their o wn regulations

. . . . De fe nd a n ts have f ailed to follow any consiste n t p ro c edure

. . . . Rather, Defendants frequently intent i o n a l ly and sum m arily seize and/or destroy personal
p ro perty and possessions within a targeted area, without a warrant o r probable cause, w ithout providing adequate and effective notice, without affording an opportunity to be heard, and without providing a m eaningful opportunity for people to retrieve their belongings.”W I L L I S V

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all relevant applications, which is requ i r ed for a facial challenge. S

ee Patel
, ___ U.S. at ___, 135 S. Ct. at 2451. On the contrary, Appellants acknowl ed g e that Defendants’ allegedly unconstitutional “pattern or practice i s a usual

course o f conduct, and the fact that Defendants may have occasionally deviat e d from that course does not defeat certification.”

Appellants them selves have dism issed the relevance of a facial challenge as a basis for comm onality, stating that “[t]he City’s argum ent that Plaintiffs have not facially cha l l e nged Defendants’ p olicies or practices is irrelevant to class certification because Plaintiffs h ave shown that Defendants’ conduct places all unhoused persons in Seattle at risk.”

Because Appellants ’ comm onality argum ent b efore the district co urt rested u

p o n extra-reg

u lato ry co n d

u c t, w e decline
to read Appellants’ argume n t as prem ised upon a facial challenge. W e also dec l in e to rewrite Appellants’

comm onality argum ent for them to include a facial challenge. See Just Film, I

n c. v. Buono
, 847 F.3d 1 108, 1 1 15 (9th Cir. 2017) (“The party seeking class certification b ears the burden of dem onstrating that the c l as s m eets the requirem ents o f Federal Rule of Civil Procedure 23.”). D oing so w ould run

c ontrary to the f

undam ental principle that courts should neither anticipate a question of constitutional law in advance

o f the necessity of deciding it nor form ulate a rule of

con stitutional law broader than is required by the precise facts
to which it is to be applied. See Washington S tate Grange v. Was h ington State Republican Party
, 552 U .S. 442, 450 (2008).

The dissent cobbles together statem ents from th e “Factual Background” section of Appe l l a n ts’ m otion for classW I L L I S V

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certification to argue that Appellants adequately presented a facial challenge t o th e MDAR and W S DOT Guidelines as a basis for establishing comm o n ality. W e disagree. Appellants

m ention in p a s s i n g in their m otion that sweeps were

c o n ducted “pursuant to official policies,” and later that th e policies “fail on their face to provide requ i site procedural safeguards.” The Appellants’ Sec ond Am ended Com plaint also m akes general and conclusory statem ents ab o ut the Guidelines’ deficiencies, without arguing that a single policy would be unconstitutional in a l l its applications. 2 B ut when Appellants actually provide their a rgum ent to the district
court regarding why class m em bers share comm on questions of law and fact, Appellants d o not explain how any alleged facial deficiencies in the Guidelines raise such comm on questions, o r how any such deficienci e s caused class

m em bers to suffer the “sam e injury.” Wal-Mart Stores, Inc.

v. Dukes
, 5 6 4 U.S. 338, 350 (2011). Because it was not presented w ith a d is ti nct argum ent regarding how facial deficiencies in the Guidelines raise questions o f law or fact

comm on to the class, the district court did not err in d eclining
to rule on this issue when decidi n g the m otion for class certif icatio n

. In stead
, it p rop e r ly ad d ressed argum ents relating to facial challenges only when ruling on the Appellants’

m otion for prelim inary inju n c tion, where such facial challenges were raised.

Even if the isolated statem ents that the d i ssent has plucked from the Appellants’ m otion had been argued in the

m otion as a b asis for comm onality, Appellants’ claim would

2 The dissent claim s that the Appel l a n ts argue that “the policy allowing the d estruction of property v alued at l ess than $ 1 00 c annot be carried out in a constitutional m anner. ” No such cognizable argum ent appears in the operative complaint.W I L L I S V

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not present a cognizable facial challenge. Appellants’
argum ents p ri m arily f

ocus on how the Guidelines give

em ployees too m

uch d iscretion, rather than identify how any alleged deficiency resulted in a comm on injury to the constitutional or statutory rights of all class m em bers. Under Dukes
, such challenges do not “provide the comm onality needed for a class action.” Id. at 355.

Based u po n Appellants’ failure to proffer sufficient evidence of a practice that was comm on to the claim s of the proposed class me mbers or lodge a facial challenge in satisfaction of the Rule 2 3(a) comm onality requirem ent, we readily conclude that the district court’s refusal to g rant class certification was not an abuse of discretion.

AFFIRMED.

CHRISTEN, Circuit Judge, concurring in part and d issenting in part:

Under the circum stances o f this case, I agree that plaintiffs failed to show their as-applied claim s pose comm on questions f

or purposes of Fed. R. C iv. P. 23(a), but plaintiffs also presented distinct facial challenges to defendants’ cam p 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. Th en, they pivot and acknowledge plaintiffs raised f acial argum ents but decide that the district court was not required to rul e o n them

. Because the record plainly shows that plaintiffs b rought facial challe n g e s, and becauseW I L L I S V

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I know of no authority allowing the claim s to be overlooked, I respectfully dissent.

* * *

Plaintiffs fi led a m o tion for class certification and a

m otion for prelim inary injunction. Plaintiffs based both

m otions on the allegations found in the Second Am ended Com plaint. The m otions were argued sim ultaneously and the district court issued one order. The transcript of the hearing,

as well as the district court’s o rde r , c o n firm that the court recognized plaintiffs presented facial challenges.

The written order denying plainti ffs’ m o tions discussed and summ arized plaintiffs’ facial constitutional claim s:

Plaintiffs contend they are likely to s u c c eed

on the m erits of their Fourth and Fo urteenth Am endm ent claim s f

o r tw o reasons. Plaintiffs first argue the City’s Updated Encam pm ent Rules are unconstitutional on their face

. T o support this argum ent, Plaintiffs contend the Updated Encamp ment Rules’ definitions o f “personal property,” and “hazardous item s,” violate the Fourth Am endm ent. Plaintiffs also contend the Updated Enc a m pm ent Rules are facially unconstitutional under the Fourteenth Am endm ent because their d efinitions o f “obstruction,” “imm edia t e hazard,” and the creation of “em

phasis a r eas,” essentially do
away with pre-seizure notice and provide City personnel with too much discretion.W I L L I S V

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( em phasis added). The district court inquired about th e s e claim s at the hearing on plaintiffs’ m otions. The district court stated, “plaintiffs’ concern is

. . . based o n 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 “comm o n to all the proposed c l a ss

m em bers here[.]” Leaving no doubt that f acial chal l e n ges

were on the t ab l e, the City conceded “a facial challenge would be comm on[, ]” b ut urged the d istrict court to deny pla i ntiffs’ m otion f

or class certification because there was “really essentially no m erit to the facial challenge” plaintiffs asserted. The City was right to concede the existence of the facial claim s, but it badly m issed the m ark when it conflated the m erits of the facial claim s w ith whether the claim s presented a comm on question. Whether a facial challenge is

m eritorious is the answer to a comm on ques t i on; it is not a

reason to den y class certification. See A mgen, Inc. v. Conn. Ret. Plans & Tr. Funds
, 568 U.S. 455, 466 (2013) (“Rule 23 grants courts no l i c en s e to engage in free-ranging m erits inquiries at the certification stage.”).

A cursory revie w of plaintiffs’ m o tion for class certification shows that they did indeed articulate d is t inct facial challenges to defendants’ cl e a nup policies. Plaintiffs argued that the City’s “official policies fail on their face to provi d e r e quisite procedural safeguards to ensure that the rights of people living outside are not violated when a sweep is conducted[,]” and “Defendants’ p o l ic i es contemplate on their face arbitra ry e nforcem ent and unbridled em ployee discretion, and lack m eaningful oversigh t and enforcem ent

m echanism s.” (em

phasis added). T he m ajority initially
asserts that plaintiffs d id not raise a facial challenge at all.W I L L I S V

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Majority Opinion at 8 (“W e cannot agree

. . . that Appellants’

m otion f o r class certification raises a f acial challenge

. . . . ”). 1

After denying that plaintiffs raised facial challenges, the

m ajority retreats, acknowledges that plaintiffs did raise such claim s, but decides the court was n ot obliged to rule on them

. The m ajority contends that plaintiffs’ facial argum ents were

ma d e in the wrong section of plaintiffs’ m otions, or we r e

m ade on ly in passing. Majority Opinion at 10–11. The salient point is that the district court correctly recognized that plaintiffs raised f

ac i a l challenges in the operative com plaint and in connection with their m o tion for class certification. Despite the m ajority’s a t tem pts to wave these argum ents away, I know of no rule p erm itting them to be brushed aside without a ruling.

The m ajority cites City o

f Los A ngeles v. Patel
, 135 S

. Ct. 2443 (2015), and concludes that plaintiffs m ust n ot have raised facial challen g es b ecause they “did not claim Defendants’ policies a r e unconstitutional in all relevant applications, [as] required fo r a facial challenge.” Majority Opinio n at 9–10. B ut the com plaint alleged precisely that. Specifically, plaintiffs alleged “ [e] ven if Defendants’ sweeps

were conducted

fully in accordance with both the MDAR and the WSDOT G uidelines, they would still b e unconstitutional

. ” (em phasis added). There is n o way to read this allegation as anything o ther than a contention that defendants’ policies are unconstitutional no m atter how they are applied. In the

1 The m ajority also argues that “[n]one o f the[] five questions of f act

or l a w [presented by p laintiffs] challenges a written law or policy as unconstitutional.” Majority Opinion at 8–9. This is puzzling, as the

m ajority m akes thi s asser

t i on after enum erating several p ractices, policies, and custom s challenged by plaintiffs as unconstitutional.W I L L I S V

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language of Patel
, this w as an unam bigu o u s assertion that defendants’ policies ar e un constitutional “in all of [their] applications.” Patel
, 135 S. Ct. at 2451 (quotatio n marks

om itted). Plaintiffs were not required to incant m agic words, and the pleading undoubtedly gave defendants fair notice of plaintiffs’ facial claim s.

Plaintiffs’ facial challenges were not afterthoughts raised fo r the first tim e in their m otions for class certificati o n o r prelim inary injunct i o n ; they were included in the o perative

com plaint. See Updike v. Multnomah Cty.
, 8 70 F.3d 939, 952 (9th Cir. 201 7 ) (observing that Fed. R. Civ. P. 8(a)(2) requir e s only that “allegations in the com plaint give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests” (interna l quotation m arks

om itted)). Pl aintiffs’ Second Am ended Com plaint includes th e alleg atio n th at d ef

endants’ policy allowing the destruction of property valued at less than $100 cannot be carried out in

a constitutional m ann er—i. e. , th e p olicy 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 (1 9 7 6 ), and observing “due p rocess challenges to governm ent policies

. . . lend them selves to cla s s certification because they often raise generic questions about how system -wide procedures im

pact a group of people who depend on those
p rocedures f

or relief”). P laintiffs’ due process argum e n t i s certainly colorable. Whether plaint i ffs could ultim ately prevail is beside the point. Rule 23(a)’s comm onality inquiry is concerned with wh ether the facial validity of the policy raises a comm o n question that can b e resolved in one stroke, and this one plainly can.W I L L I S V

. C I T Y O F S EAT T L E 17

The m ajority contends that “[n]o s uch cognizable
argum ent [c on cerning the $100 policy] appears in the operative com

plaint.” Majority Opinion at 11 n

. 2. Unquestionably, it does. In a section of the com p laint entitled “Defendants’ Official P olicies G overni ng Sweeps are Unconstitutional,” the com plaint identifies a laundry list o f policies that plaintiffs contend v i ol a te due process even if “conducted fully in accordance with” defendants’ offi c i al
p ol icies. In a subsection entitled “Defendants’ O ffici al Policies Fail to Provide for Adequate and Effective Notice,” the com plaint describes how the not i ce requirem ents of the MDAR and W SDOT Guidelines we r e constitutionally deficient. There, the com p laint s p e c ifically identifies the policy allowing f

or the destruction of p roperty valued at less than $100 as an exception to the guidelines ’ notice requirem ents that “on [ its] face m ake[s] it im possible 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 m ajority takes iss u e wi th plaintiffs’ contention that defendants’ policies g rant too m uch discretion to em

ployees tasked with c l e a ri ng cam ps. But it does not adequately explain why a facial challenge allegi ng that p u blic officials have been given too m uch discretion cannot supply a

comm on question for purposes of Ru l e 2 3(a). See Brief o f Civil Procedu r e Professors as A mici Curiae In Support o f Plaintiffs-Appellants, at 9 (observing that plaintiffs contend d ef en d ants’ policies are im

p ermissib ly v agu e an d o p in in g th at this case “raises system -wide q uestion s about the constitutionality of a g overnm ent policy, [and] is precisely the kind of suit that will allow the court to answer

. . . claim s ‘in one stroke’”). The m ajority relies on a flawed extension of Wal-Mart St ores, Inc. v. Dukes
, 564 U.S. 338 (2011).W I L L I S V

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Majority Opinion at 11–12. In Dukes
, the plaintiffs did not allege the co rp orate p o licy granted m anagers too m u ch discretion; they alleged that store m anagers discrim inated on the b asis of sex. 564 U.S. at 3 43–45. Their attem p t to certify a class failed because there was no comm on issue regarding the m anagers’ individual decisions. Id. at 3 49

– 5 5. H ere, plaintiffs do not allege the disc r imi n a tory application of a discretionary policy; they allege—am ong other things—that defendants’ o ffic i al 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 p r o v i des a “m eans of vindicating the rights o f
groups of people who individually would be without effective strength to b ring their opponents into court at all.” Benjam in Kap l an, A Prefatory N

ote , 10 B.C. Indus. & Com

. L. Re v

. 497, 497 (1969). It p rovides a critical procedural device for im portant cases l i ke this one. Am ong other allegations, plaintiffs argue their d

ue proces s r i gh ts were violated by a written p o licy providing that seized property did not need to be stored if it was v alued a t l es s than $100. Plaintiffs’ asapp l i e d challenges illustrated this policy’s real w orld
consequences, including exam ples in which putative class

m em bers were left without thei r identification o r

m edication—including insulin. It is not hard to im agine the Catch-22 nightm are of being denied life-s u s t aining benefits for failure to show proof of identification, and being un able
to obtain replacem ent identification b ecause all of one’s worldly possessions were lost in a cam p sweep.

In recent years, class action litigation has m ore o ften been initiated to vindicate large num bers of sm all-dollar consum er claim s, b ut as the am ici curiae civil p rocedure p r o fe ssors explain, courts have long recognized that facial constitutionalW I L L I S V

. C I T Y O F S EAT T L E 19

challenges present the archetypal comm on question f or class certification. See Brief o f Civil Procedure Professors as Amici Curiae In Support of Plaintiffs-Appel lants, at 7–9. Where a proposed class faces substantial harm caused by a governm ental p olicy, Rule 23 can provide an effective

v eh i c le for determ ining whether the policy, on its face
, violates the federal Constituti o n

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

The district court concluded that plaintiffs were n ot likely
to succeed on the m erits o f their facial challenges and denied plaintiffs’ m otions in an ord e r th a t focused entirely on their failure to offer evidence of the commo n p r a ctices they challenged o n an as-applied basis. The court did not rule on the antecedent question posed b y plaintiffs’ m otion to certify the proposed class: whether plaintiffs’ facial claim s presented

comm on questions for Rule 23(a) purpose s

. Because the order denying class certification m ade no me n tion o f plaintiffs’ facial claim s, I would rem and for the district court to consider this issue in the f irst instance. See Edwards v. Fi r st Am. Corp.
, 798 F.3d 1172, 1177 (9th Cir. 2015) (legal

errors in class certification orders are “per se” abu s e s o f discretion).