Abby Porter

Parties or Not?: The Status of Absent Class Members in Rule 23 Class Actions

When should absent class members—individuals who are bound by and share in a class recovery but who are not active participants in the litigation—be treated as “parties” in Rule 23 class actions? This simple question has confused courts and litigants almost since the initial conception of the class action device. In 1983, then-Professor Diane Wood introduced the joinder and representational models to classify approaches to this question in her now-seminal article. The joinder model treats absent class members as parties to the litigation at all times, while the representational model presumes only the named plaintiffs are parties to the case itself. At various moments, the Supreme Court has expressed exclusive support for the representational approach, exclusive support for the joinder approach, and a preference for a balanced approach which treats absent class members as parties for some procedural issues if not for others. Through the lens of the joinder and representational models, this Note clarifies the decisions courts are making when assessing the procedural rights of absent class members, and ultimately suggests that the status of absent class members should depend on the procedural right being asserted.

Introduction

When a lawsuit proceeds as a class action, how should we think about the “absent” members of the class—people who might share in the relief that the court awards, and who are also at risk of being bound by an adverse judgment, but who are not named and are not actively participating in the suit? In a classic 1983 article, then-Professor (now Judge) Diane Wood argued that courts had unknowingly been using two different approaches, which she called the “joinder” model and the “representational” model.1 1.Diane Wood Hutchinson, Class Actions: Joinder or Representational Device?, 1983 Sup. Ct. Rev. 459, 459. Judge Wood now serves as a senior judge on the U.S. Court of Appeals for the Seventh Circuit.Show More Broadly, the joinder model treats all members of the class as full parties to the litigation, whether or not they are named and actively participating.2 2.Id.Show More On that view, the court would need to consider the absent members of the class when answering threshold questions about jurisdiction or venue, and the absent members of the class would also have all the rights and obligations of parties as the case proceeds.3 3.Id.Show More By contrast, the representational model treats only the named members of the class as parties to the litigation for procedural purposes; the named members are considered to be representing absent class members throughout the litigation, but the absent class members whom they represent are not actually parties to the case.4 4.Id.at 460.Show More

For a simplified example of the distinction, imagine a plaintiff class action in which the named plaintiffs are all citizens of State A, but some of the absent class members are citizens of State B. If the defendant is a citizen of State B, then whether the suit qualifies for diversity jurisdiction under 28 U.S.C. § 1332(a) depends on whether the absent class members are regarded as additional plaintiffs. The joinder model would deny diversity jurisdiction in this case because some of the plaintiffs are citizens of the same state as the defendant, while the representational model would grant diversity jurisdiction (assuming that the amount in controversy requirement is satisfied) because the representational model is only concerned with the named parties.

The models can produce equally stark differences on questions that might arise as the suit proceeds. For example, in a major consumer protection lawsuit against the at-home exercise company Peloton, the joinder model would permit the district court to allow all forms of discovery against its, at the time, estimated 3.1 million subscribers to the platform,5 5.Lauren Thomas, Peloton Thinks It Can Grow to 100 Million Subscribers. Here’s How, CNBC (Sept. 15, 2020, 2:29 PM), https://www.cnbc.com/2020/09/15/peloton-thinks-it-can-grow-to-100-million-subscribers-heres-how.html [https://perma.cc/D2VF-3FZ4].Show More while the representational model would only permit interrogatories or requests for admission to be levied against the named class members.6 6.Cf. Fishon v. Peloton Interactive, Inc., 336 F.R.D. 67, 74 (S.D.N.Y. 2020) (permitting limited deposition of absent putative class members). Some discovery devices, such as requests for admissions and interrogatories, can only be directed at parties to the lawsuit. See, e.g., Fed. R. Civ. P. 33 (interrogatories); Fed. R. Civ. P. 36 (requests for admissions). Parties can aim other discovery mechanisms, such as depositions or subpoenas at parties and non-parties alike. See, e.g., Fed. R. Civ. P. 30 (oral depositions); Fed. R. Civ. P. 45 (subpoenas).Show More Or, the joinder model would require all absent class members to consent to adjudication by a magistrate rather than a district court judge, while the representational model would only require the named plaintiffs to consent.7 7.See, e.g., Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 180–81 (3d Cir. 2012) (holding that unnamed class members are not parties for purposes of consenting to adjudication by a magistrate judge).Show More These different treatments for absent class members can have major practical impacts on class action litigation in whether suits can be brought in federal court and, when they are, what absent class members are required to do.

Judge Wood herself advocated for using the representational model. In her view, applying that model across the board would best promote two goals of class actions: to provide efficiency for litigants and to act as a “private attorney-general” enforcement mechanism.8 8.Wood Hutchinson, supranote 1, at 480.Show More Since the publication of her article, however, the Supreme Court has struck different notes.9 9.Even before Judge Wood’s article, Justice Stevens’s concurring opinion in Deposit Guaranty National Bank v. Roper noted that “[t]he status of unnamed members of an uncertified class has always been difficult to define accurately.” 445 U.S. 326, 343 n.3 (1980) (Stevens, J., concurring). In Roper, Justice Stevens suggested that absent parties be conceived of as parties for some procedural purposes even if they are not for others. Id. Justice Powell’s dissent strongly disagreed with this statement, arguing that Justice Stevens cited no authority to support his position and provided no explanation “as to how a court is to determine when these unidentified ‘parties’ are present.” Id.at 358 n.21 (Powell, J., dissenting). This Note attempts to propose a solution to Justice Powell’s concern.Show More For example, in Martin v. Wilks, the Supreme Court presumed the representational model applied, labeling the class action as a “certain limited circumstance[]” where “a person, although not a party, has his interests adequately represented by someone with the same interests who is a party.”10 10.490 U.S. 755, 762 n.2 (1989); see also Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (agreeing with this characterization of class actions).Show More By contrast, Justice Scalia’s plurality opinion in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. described the class action as a straightforward “joinder” device that “merely enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits.”11 11.559 U.S. 393, 408 (2010) (plurality opinion).Show More And, in 2002, Justice O’Connor’s majority opinion in Devlin v. Scardelletti asserted that “[n]onnamed class members . . . may be parties for some purposes and not for others.”12 12.536 U.S. 1, 9–10 (2002). One might find it curious that Justice Scalia wrote the dissent in Devlin arguing for a representational approach as he would later write the majority opinion in Shady Grove, which called a class action a species of “traditional joinder.” Shady Grove, 559 U.S. at 408. In dissent, he wrote that the majority’s decision to permit both the joinder and the representational model “abandons the bright-line rule that only those persons named as such are parties to a judgment, in favor of a vague inquiry ‘based on context.’” Devlin, 536 U.S. at 20 (Scalia, J., dissenting).Show More

How courts should characterize absent class members bears on many continuing controversies. For example, after the Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California,13 13.137 S. Ct. 1773 (2017).Show More most lower courts have followed Devlin’s approach to confirm that, even if absent class members are parties for some purposes, they are not parties necessary to determine whether the court has personal jurisdiction over the defendant.14 14.See, e.g., Mussat v. IQVIA, Inc., 953 F.3d 441, 447–48 (7th Cir. 2020); Al Haj v. Pfizer Inc., 338 F. Supp. 3d 815, 820 (N.D. Ill. 2018). Not all courts have interpreted Bristol-Myers Squibb in this way. For more, see infra Subsection II.A.2.Show More As recently as June 2021, however, the Court seemed to follow Justice Scalia’s characterization of the class as a “joinder” device when it concluded that all absent class members need to demonstrate standing in order to recover damages.15 15.TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207–08 (2021). Notably, the Court reserved judgment on “whether every class member must demonstrate standing before a court certifies a class.” Id. at 2208 n.4. For further discussion on this question, and whether this actually implicates the representational model, see infraSubsection II.A.3.Show More It follows that under what circumstances absent class members should be considered parties remains a live issue almost forty years after Judge Wood’s initial article. The Court itself has not offered consistent guidance on the status of absent class members, and its recent decisions on personal jurisdiction and standing have acutely raised these questions for lower courts.16 16.SeeinfraSubsection II.A.2 (personal jurisdiction); infra Subsection II.A.3 (standing).Show More The time is right to both clarify the choice lower courts will be making in these determinations and to suggest a new path forward considering the changes from the past forty years.

This Note identifies the contours of the question for various procedural doctrines, and, ultimately, suggests that Devlin’s approach of considering absent class members as parties for some purposes but not for others is preferable to a strict joinder or representational approach. Judge Wood’s article, which advocated for a more rule-like approach to the representational model, focused primarily on the jurisdiction and justiciability doctrines that govern absent class members’ access to federal courts.17 17.See Wood Hutchinson, supra note 1, at 478 (“The characteristics that would lead a court to treat a class action as a glorified joinder device or as a true representational action are different. Those characteristics are ‘procedural’ in this sense: They establish one’s right to sue in a federal court on the substantive claim, rather than in a state court.”).Show More When broadening the scope of procedural doctrines that affect absent class members during litigation, such as discovery or counterclaims, this Note contends that a more balanced approach would better vindicate the efficiency and private attorney general functions of the class action device. Writing now with the benefit of Devlin’s statement that absent class members may be treated differently for different purposes, a less rule-like approach is not only preferable but possible.

Part I of this Note explains in detail the differences between the representational and joinder models and Judge Wood’s reasons for expressing a preference for the representational model. Part II surveys post-1983 doctrine in certain procedural issues implicating the joinder and representational models in class actions. While, for the most part, courts have continued to use the representational model to conceive of absent class members, there are some areas in which Congress and the courts have shifted towards a more joinder-based approach. Part III evaluates why Devlin’s approach of treating absent class members differently based on context is preferable to following the representational model in all areas. Ultimately, it suggests that the joinder model is valuable for some litigation conduct but that the representational model continues to be a valuable way to conceive of access to federal courts for class action procedures.

  1.  Diane Wood Hutchinson, Class Actions: Joinder or Representational Device?, 1983
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    459, 459. Judge Wood now serves as a senior judge on the U.S. Court of Appeals for the Seventh Circuit. ↑

  2.  Id. ↑
  3.  Id. ↑
  4.  Id. at 460. ↑
  5.  Lauren Thomas, Peloton Thinks It Can Grow to 100 Million Subscribers. Here’s How, CNBC (Sept. 15, 2020, 2:29 PM), https://www.cnbc.com/2020/09/15/peloton-thinks-it-can-grow-to-100-million-subscribers-heres-how.html [https://perma.cc/D2VF-3FZ4]. ↑
  6.  Cf. Fishon v. Peloton Interactive, Inc., 336 F.R.D. 67, 74 (S.D.N.Y. 2020) (permitting limited deposition of absent putative class members). Some discovery devices, such as requests for admissions and interrogatories, can only be directed at parties to the lawsuit. See, e.g.,
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    36 (requests for admissions). Parties can aim other discovery mechanisms, such as depositions or subpoenas at parties and non-parties alike. See, e.g.,

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    45 (subpoenas). ↑

  7.  See, e.g., Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 180–81 (3d Cir. 2012) (holding that unnamed class members are not parties for purposes of consenting to adjudication by a magistrate judge). ↑
  8.  Wood Hutchinson, supra note 1, at 480. ↑
  9.  Even before Judge Wood’s article, Justice Stevens’s concurring opinion in Deposit Guaranty National Bank v. Roper noted that “[t]he status of unnamed members of an uncertified class has always been difficult to define accurately.” 445 U.S. 326, 343 n.3 (1980) (Stevens, J., concurring). In Roper, Justice Stevens suggested that absent parties be conceived of as parties for some procedural purposes even if they are not for others. Id. Justice Powell’s dissent strongly disagreed with this statement, arguing that Justice Stevens cited no authority to support his position and provided no explanation “as to how a court is to determine when these unidentified ‘parties’ are present.” Id. at 358 n.21 (Powell, J., dissenting). This Note attempts to propose a solution to Justice Powell’s concern. ↑
  10.  490 U.S. 755, 762 n.2 (1989); see also Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (agreeing with this characterization of class actions). ↑
  11.  559 U.S. 393, 408 (2010) (plurality opinion). ↑
  12.  536 U.S. 1, 9–10 (2002). One might find it curious that Justice Scalia wrote the dissent in Devlin arguing for a representational approach as he would later write the majority opinion in Shady Grove, which called a class action a species of “traditional joinder.” Shady Grove, 559 U.S. at 408. In dissent, he wrote that the majority’s decision to permit both the joinder and the representational model “abandons the bright-line rule that only those persons named as such are parties to a judgment, in favor of a vague inquiry ‘based on context.’” Devlin, 536 U.S. at 20 (Scalia, J., dissenting). ↑
  13.  137 S. Ct. 1773 (2017). ↑
  14.  See, e.g., Mussat v. IQVIA, Inc., 953 F.3d 441, 447–48 (7th Cir. 2020); Al Haj v. Pfizer Inc., 338 F. Supp. 3d 815, 820 (N.D. Ill. 2018). Not all courts have interpreted Bristol-Myers Squibb in this way. For more, see infra Subsection II.A.2. ↑
  15.  TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207–08 (2021). Notably, the Court reserved judgment on “whether every class member must demonstrate standing before a court certifies a class.” Id. at 2208 n.4. For further discussion on this question, and whether this actually implicates the representational model, see infra Subsection II.A.3. ↑
  16.  See infra Subsection II.A.2 (personal jurisdiction); infra Subsection II.A.3 (standing). ↑

  17.  See Wood Hutchinson, supra note 1, at 478 (“The characteristics that would lead a court to treat a class action as a glorified joinder device or as a true representational action are different. Those characteristics are ‘procedural’ in this sense: They establish one’s right to sue in a federal court on the substantive claim, rather than in a state court.”). ↑

RFRA at the Border: Immigration’s Entry Fiction and Religious Free Exercise

RFRA and RLUIPA have greatly enhanced the religious free exercise rights of individuals, but it is not clear that all immigrants in detention in the United States are able to claim these protections. One lower court has applied the entry fiction doctrine, which limits the constitutional rights of immigrants at the border, to hold that these immigrants do not have statutory rights under RFRA because they are not “person[s]” within the meaning of the statute. This Note contends that the Supreme Court’s recent analysis of RFRA in Burwell v. Hobby Lobby Stores, Inc. calls into question this lower court decision. Contemplating the various methods of statutory interpretation from Hobby Lobby and other lower courts, this Note argues that the plain meaning of “person[s]” should govern its interpretation in RFRA and, thus, should include immigrants subject to the entry fiction.

Introduction

For many, religion is a solace in times of crisis.1 1.Maryam Saleh, A Second Chance, Intercept (Dec. 22, 2018, 10:44 AM), https://theintercept.com/2018/12/22/georgia-ice-raids-muslim-refugees/ [https://perma.cc/Q3Q5-MLWS] (“You know, it’s just the belief that you have that you don’t have no control of everything, so, you know, that’s what keeps us going, just prayers . . . .”).Show More However, for some immigrants in detention centers across the country, their ability to practice their religion has been limited.2 2.Conrad Wilson, Hundreds of Immigrant Detainees Held in Federal Prisons, NPR (Aug. 23, 2018, 7:28 AM), https://www.npr.org/2018/08/23/641165251/legal-battles-began-when-migrants-were-sent-to-federal-prisons [https://perma.cc/8A3F-6GN4] (“If you lock somebody up in a foreign country and cut them off from the outside world . . . it’s going to cause all kinds of psychological trauma at the minimum . . . .”).Show More In Glades County, Florida, Muslim immigrant detainees were denied access to the Quran and forced to use bedsheets as prayer rugs.3 3.See ACLU, Letter from ACLU to U.S. Dep’t of Homeland Sec. 4 (Mar. 15, 2019), https://www.aclu.org/letter/investigating-religious-freedom-violations-border-patrol-and-ice [https://perma.cc/ET7C-TAG6] [hereinafter ACLU Letter]; Complaint at 12–13, Abdulkadir v. Hardin, No. 2:19-CV-00120-SPC-MRM (M.D. Fla. Feb. 27, 2019).Show More In both Port Isabel, Texas and Miami, Florida, Muslim detainees were given only pork sandwiches to eat.4 4.Roque Planas, Border Patrol Fed Pork to Muslim Detainee for 6 Days, Huffington Post (Feb. 27, 2019, 4:45 PM), https://www.huffpost.com/entry/border-patrol-fed-pork-to-muslim-detainee-for-six-days_n_5c76f474e4b0d3a48b5627a2#:~:text=A%20permit%20allowing‌%20him%20to,Parveen%20from%20landinl%20in%20detention [https://perma.cc/F2JZ-ZFKM]; Groups: Muslim Detainees at Miami Facility Are Served Pork, Associated Press (Aug. 20, 2020), https://apnews.com/article/a4cdb2edd79edfc83adde71fdcafb079 [https://perma.cc/A8GJ-4LHJ].Show More In Sheridan, Oregon, Sikh detainees were denied turbans, and other detainees were denied access to pastoral care or spaces to worship.5 5.See ACLU Letter, supra note 4, at 5; Decl. in Support of Habeas Petition at 2, ICE Detainee No. 2 v. Salazar, No. 3:18-CV-01280-MO (D. Or. July 18, 2018); Memo in Support of Petition for Habeas Corpus at 22–23, ICE Detainee Nos. 1-74 v. Salazar, No. 3:18-CV-01279-MO (D. Or. July 30, 2018).Show More In Victorville, California, detainees were likewise denied meals that complied with their religious needs, were denied appropriate religious counseling, and were prevented from wearing head coverings.6 6.See ACLU Letter, supra note 4, at 5; Decl. of Atinder Paul Singh ¶ 5, 10–11, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 1-4; Decl. of Gurjinder Singh ¶¶ 4–8, id., ECF No. 1-5.Show More Indeed, one individual was chastised by officers for using his cell to pray, even though he was given no other space to do so.7 7.Decl. of Gabriel Antonio Manzanilla Pedron ¶ 24, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 45-3.Show More

These stories are reminiscent of the shocking stories relating to immigrant detention centers over the past decade.8 8.See Michael D. Shear, Katie Benner & Michael S. Schmidt, ‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said, N.Y. Times (Oct. 6, 2020), https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html [https://perma.cc/EPE8-HDCX]; Jacob Soboroff & Julia Ainsley, Lawyers Can’t Find the Parents of 666 Migrant Kids, A Higher Number Than Previously Reported, NBC News (Nov. 9, 2020, 4:32 PM), https://www.nbcnews.com/politics/immigration/lawyers-can-t-find-parents-666-migrant-kids-higher-number-n1247144 [https://perma.cc/G8KR-AWJH]; Tell Me More: Child Detention Centers: A ‘Headache’ for the Obama Administration NPR (June 23, 2014, 12:54 PM), https://www.npr.org/2014/06/23/324857970/child-detention-centers-a-headache-for-the-obama-administration [https://perma.cc/3CMF-WM8L].Show More The COVID-19 pandemic has not only grossly over-affected immigrant detainees in terms of the virus’s impact,9 9.Alisa Reznick, ‘You Can Either Be a Survivor or Die’: COVID-19 Cases Surge in ICE Detention, NPR (July 1, 2020, 9:17 AM), https://www.npr.org/2020/07/01/871625210/you-can-either-be-a-survivor-or-die-covid-19-cases-surge-in-ice-detention [https://perma.cc/NBC3-JWK4].Show More but it has led to greater opportunities for mistreatment.10 10.Ike Swetlitz, ‘Suddenly They Started Gassing Us’: Cuban Migrants Tell of Shocking Attack at ICE Prison, Guardian (July 2, 2020, 6:00 PM), https://www.theguardian.com/us-news/2020/jul/02/cuban-migrants-detention-ice-facility-new-mexico [https://perma.cc/QP2N-AYNV] (describing immigrant detainees who were corralled into their dormitory and pepper sprayed by prison guards in “full riot gear of gas masks” and “shields” as a response to their hunger strike protesting against their vulnerability to COVID-19).Show More Other accounts of abuse in immigration detention also raise religiously motivated concerns, albeit not as directly as those previously mentioned. For example, in deciding a due process challenge to the Trump administration’s family separation policies, a district court judge wrote that separating her from her child “absolutely precludes” a mother’s “involvement in any aspect of her sons’ care, custody, and control, from religion to education.”11 11.Jacinto-Castanon de Nolasco v. U.S. Immigr. & Customs Enf’t, 319 F. Supp. 3d 491, 501 (D.D.C. 2018) (emphasis added). While it is not clear that the mother in this case would be able to claim that this burdened her religious beliefs, it shows the scope of religion-related issues present in the immigration detention context.Show More Additionally, recent claims of unwanted gynecological procedures in detention centers12 12.Caitlin Dickerson, Seth Freed Wessler & Miriam Jordan, Immigrants Say They Were Pressured Into Unneeded Surgeries, N.Y. Times (Sept. 29, 2020), https://www.nytimes.com/‌2020/09/29/us/ice-hysterectomies-surgeries-georgia.html [https://perma.cc/7TQX-8QKZ].Show More could raise concerns of bodily integrity that are violative of certain religious beliefs. While there would need to be an individualized assessment of whether these practices burdened individuals’ religious practices, all of these stories demonstrate the pressing importance of protecting the religious rights of immigrants in detention centers.

What may be most surprising about the previous stories is not that they happened, but that there may not be a remedy under the law for these violations. The Religious Freedom Restoration Act (“RFRA”)13 13.42 U.S.C. § 2000bb-1.Show More and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)14 14.42 U.S.C. §§ 2000cc–2000cc-1.Show More provide the broadest grants of religious free exercise protections against laws made or actions taken by the federal government.15 15.While both RFRA and RLUIPA apply to federal actions, only RLUIPA applies to state actions as well. See City of Boerne v. Flores, 521 U.S. 507, 529, 532–36 (1997); Cutter v. Wilkinson, 544 U.S. 709, 713, 715–16 (2005); infra Section I.A.Show More The First Amendment Free Exercise Clause also provides more limited protections against religious liberty violations.16 16.U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”); see Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 878–79 (1990).Show More However, because of the complex doctrine known as the “entry fiction,” certain immigrants may not be able to bring a suit under RFRA or RLUIPA.17 17.See infra Section I.B.Show More

The entry fiction says that certain individuals, while physically inside the United States are legally considered to be still outside of the United States because they have not “effected an entry.”18 18.Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see Wong v. United States, 373 F.3d 952, 971 (9th Cir. 2004) (summarizing the entry fiction doctrine).Show More While controversial,19 19.Recent dissents by the Court have argued vehemently against this legal fiction. See Jennings v. Rodriguez, 138 S. Ct. 830, 862 (2018) (Breyer, J., dissenting) (“We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 2013 (2020) (Sotomayor, J., dissenting) (“Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted . . . .”).Show More it has primarily been applied to deny certain immigrants their procedural due process rights in immigration proceedings.20 20.SeeWong, 373 F.3d at 971–72; see also Zadvydas, 533 U.S. at 703–04 (Scalia, J., dissenting) (claiming that the distinction between “aliens” who have effected an entry and those who have not “makes perfect sense” with regard to the procedures “necessary to prevent entry” but he is “sure they cannot be tortured”).Show More However, relying on this doctrine, at least one lower court has recently interpreted this fiction to deny immigrants their rights under RFRA by holding that they are not “person[s]” under the statute.21 21.Bukhari v. Piedmont Reg’l Jail Auth., No. 01:09-CV-1270, 2010 WL 3385179, at *5 (E.D. Va. Aug. 20, 2010).Show More

At the same time, the Supreme Court has arguably expanded the scope of free exercise protections available to individuals under RFRA.22 22.See infra Section III.A.Show More In deciding Burwell v. Hobby Lobby Stores, Inc.,23 23.573 U.S. 682 (2014).Show More the Court suggested a new, larger role for RFRA in affording religious liberty protections that go even beyond the Constitutional guarantees of the older, more protective free exercise precedents.24 24.See id. at 695 n.3 (“RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions.”); see also infra Section III.A.Show More While this move to untether RFRA from the First Amendment could prove troublesome, in that it allows for broader religion-based challenges to federal laws that protect civil rights,25 25.See Micah Schwartzman, Richard C. Schragger & Nelson Tebbe, The New Law of Religion, Slate (July 3, 2014, 11:54 AM), https://slate.com/news-and-politics/2014/07/after-hobby-lobby-there-is-only-rfra-and-thats-all-you-need.html [https://perma.cc/92GW-D4GT]; Marty Lederman, Hobby Lobby Part XVIII—The One (Potentially) Momentous Aspect of Hobby Lobby: Untethering RFRA from Free Exercise Doctrine, Balkinization (July 6, 2014), https://balkin.blogspot.com/2014/07/hobby-lobby-part-xviii-one-potentially.html [https://perma.cc/2A3B-MSRX]; see also Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. & Gender 35, 93 (2015) (noting a potential wave of RFRA litigation regarding employer objections to paying benefits for same-sex spouses).Show More this Note will contend that this decision is good for immigrants subject to the entry fiction as it establishes a framework under which they can bring a RFRA claim.

This Note will attempt to resolve a fragment of the jurisprudential conflict between expanded religious liberty rights and restricted immigration rights by answering the narrow question of whether immigrants who are subject to the entry fiction are “person[s]” under RFRA. The normative analysis of this question is clear: the United States should not prevent relief to individuals who have been subjected to some of the treatment described above at the hands of government actors. Unfortunately, the doctrinal analysis is murkier, and it is this analysis with which this Note will contend. Part I will give an overview of RFRA and RLUIPA, including the relevant statutory history. It will then outline in more detail the doctrine of the entry fiction, laying out its import to the constitutional rights of immigrants, and the relevance of these constitutional rights to the statutory interpretation question at the heart of this issue.

Part II will confront the decisions of lower courts that have waded into this murky analysis. Only one lower court has directly ruled on this question as it relates to immigrants subject to the entry fiction.26 26.See Bukhari, 2010 WL 3385179.Show More That court relied heavily on a case from the U.S. Court of Appeals for the D.C. Circuit, which confronted the question as it relates to Guantanamo detainees.27 27.Id. at *4; see Rasul v. Myers (Rasul II), 563 F.3d 527, 528 (D.C. Cir. 2009); Rasul v. Myers (Rasul I), 512 F.3d 644, 649 (D.C. Cir. 2008), cert. granted, judgment vacated, 555 U.S. 1083 (2008).Show More As the law around Guantanamo detainees is more developed, this Note will delve deeply into that case and other similar cases from the D.C. Circuit.

Part III will then focus on the Court’s decision in Burwell v. Hobby Lobby Stores, Inc. This Part will explore the Court’s enlarged view of RFRA and how its analysis casts doubt on the reasoning of the decisions in the lower courts. Finally, Part IV will propose a way to answer the question of who are “person[s]” under RFRA. Contending with three separate methods of statutory interpretation, this Note will demonstrate why a plain meaning approach to the term “person[s]” is the most logical from a doctrinal perspective. By reading “person[s]” to include all people who are subject to government burdens on their free exercise, immigrants subject to the entry fiction will have rights under the RFRA and RLUIPA statutory regimes.

  1. Maryam Saleh, A Second Chance, Intercept (Dec. 22, 2018, 10:44 AM), https://theintercept.com/2018/12/22/georgia-ice-raids-muslim-refugees/ [https://perma.cc/Q3Q5-MLWS] (“You know, it’s just the belief that you have that you don’t have no control of everything, so, you know, that’s what keeps us going, just prayers . . . .”). ↑
  2. Conrad Wilson, Hundreds of Immigrant Detainees Held in Federal Prisons, NPR (Aug. 23, 2018, 7:28 AM), https://www.npr.org/2018/08/23/641165251/legal-battles-began-when-migrants-were-sent-to-federal-prisons [https://perma.cc/8A3F-6GN4] (“If you lock somebody up in a foreign country and cut them off from the outside world . . . it’s going to cause all kinds of psychological trauma at the minimum . . . .”). ↑
  3. See ACLU, Letter from ACLU to U.S. Dep’t of Homeland Sec. 4 (Mar. 15, 2019), https://www.aclu.org/letter/investigating-religious-freedom-violations-border-patrol-and-ice [https://perma.cc/ET7C-TAG6] [hereinafter ACLU Letter]; Complaint at 12–13, Abdulkadir v. Hardin, No. 2:19-CV-00120-SPC-MRM (M.D. Fla. Feb. 27, 2019). ↑
  4. Roque Planas, Border Patrol Fed Pork to Muslim Detainee for 6 Days, Huffington Post (Feb. 27, 2019, 4:45 PM), https://www.huffpost.com/entry/border-patrol-fed-pork-to-muslim-detainee-for-six-days_n_5c76f474e4b0d3a48b5627a2#:~:text=A%20permit%20allowing‌%20him%20to,Parveen%20from%20landinl%20in%20detention [https://perma.cc/F2JZ-ZFKM]; Groups: Muslim Detainees at Miami Facility Are Served Pork, Associated Press (Aug. 20, 2020), https://apnews.com/article/a4cdb2edd79edfc83adde71fdcafb079 [https://perma.cc/A8GJ-4LHJ]. ↑
  5. See ACLU Letter, supra note 4, at 5; Decl. in Support of Habeas Petition at 2, ICE Detainee No. 2 v. Salazar, No. 3:18-CV-01280-MO (D. Or. July 18, 2018); Memo in Support of Petition for Habeas Corpus at 22–23, ICE Detainee Nos. 1-74 v. Salazar, No. 3:18-CV-01279-MO (D. Or. July 30, 2018). ↑
  6. See ACLU Letter, supra note 4, at 5; Decl. of Atinder Paul Singh ¶ 5, 10–11, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 1-4; Decl. of Gurjinder Singh ¶¶ 4–8, id., ECF No. 1-5. ↑
  7. Decl. of Gabriel Antonio Manzanilla Pedron ¶ 24, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 45-3. ↑
  8. See Michael D. Shear, Katie Benner & Michael S. Schmidt, ‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said, N.Y. Times (Oct. 6, 2020), https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html [https://perma.cc/EPE8-HDCX]; Jacob Soboroff & Julia Ainsley, Lawyers Can’t Find the Parents of 666 Migrant Kids, A Higher Number Than Previously Reported, NBC News (Nov. 9, 2020, 4:32 PM), https://www.nbcnews.com/politics/immigration/lawyers-can-t-find-parents-666-migrant-kids-higher-number-n1247144 [https://perma.cc/G8KR-AWJH]; Tell Me More: Child Detention Centers: A ‘Headache’ for the Obama Administration NPR (June 23, 2014, 12:54 PM), https://www.npr.org/2014/06/23/324857970/child-detention-centers-a-headache-for-the-obama-administration [https://perma.cc/3CMF-WM8L]. ↑
  9. Alisa Reznick, ‘You Can Either Be a Survivor or Die’: COVID-19 Cases Surge in ICE Detention, NPR (July 1, 2020, 9:17 AM), https://www.npr.org/2020/07/01/871625210/you-can-either-be-a-survivor-or-die-covid-19-cases-surge-in-ice-detention [https://perma.cc/NBC3-JWK4]. ↑
  10. Ike Swetlitz, ‘Suddenly They Started Gassing Us’: Cuban Migrants Tell of Shocking Attack at ICE Prison, Guardian (July 2, 2020, 6:00 PM), https://www.theguardian.com/us-news/2020/jul/02/cuban-migrants-detention-ice-facility-new-mexico [https://perma.cc/QP2N-AYNV] (describing immigrant detainees who were corralled into their dormitory and pepper sprayed by prison guards in “full riot gear of gas masks” and “shields” as a response to their hunger strike protesting against their vulnerability to COVID-19). ↑
  11. Jacinto-Castanon de Nolasco v. U.S. Immigr. & Customs Enf’t, 319 F. Supp. 3d 491, 501 (D.D.C. 2018) (emphasis added). While it is not clear that the mother in this case would be able to claim that this burdened her religious beliefs, it shows the scope of religion-related issues present in the immigration detention context. ↑
  12. Caitlin Dickerson, Seth Freed Wessler & Miriam Jordan, Immigrants Say They Were Pressured Into Unneeded Surgeries, N.Y. Times (Sept. 29, 2020), https://www.nytimes.com/‌2020/09/29/us/ice-hysterectomies-surgeries-georgia.html [https://perma.cc/7TQX-8QKZ]. ↑
  13. 42 U.S.C. § 2000bb-1. ↑
  14. 42 U.S.C. §§ 2000cc–2000cc-1. ↑
  15. While both RFRA and RLUIPA apply to federal actions, only RLUIPA applies to state actions as well. See City of Boerne v. Flores, 521 U.S. 507, 529, 532–36 (1997); Cutter v. Wilkinson, 544 U.S. 709, 713, 715–16 (2005); infra Section I.A. ↑
  16. U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”); see Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 878–79 (1990). ↑
  17. See infra Section I.B. ↑
  18. Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see Wong v. United States, 373 F.3d 952, 971 (9th Cir. 2004) (summarizing the entry fiction doctrine). ↑
  19. Recent dissents by the Court have argued vehemently against this legal fiction. See Jennings v. Rodriguez, 138 S. Ct. 830, 862 (2018) (Breyer, J., dissenting) (“We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 2013 (2020) (Sotomayor, J., dissenting) (“Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted . . . .”). ↑
  20. See Wong, 373 F.3d at 971–72; see also Zadvydas, 533 U.S. at 703–04 (Scalia, J., dissenting) (claiming that the distinction between “aliens” who have effected an entry and those who have not “makes perfect sense” with regard to the procedures “necessary to prevent entry” but he is “sure they cannot be tortured”). ↑
  21. Bukhari v. Piedmont Reg’l Jail Auth., No. 01:09-CV-1270, 2010 WL 3385179, at *5 (E.D. Va. Aug. 20, 2010). ↑
  22. See infra Section III.A. ↑
  23. 573 U.S. 682 (2014). ↑
  24. See id. at 695 n.3 (“RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions.”); see also infra Section III.A. ↑
  25. See Micah Schwartzman, Richard C. Schragger & Nelson Tebbe, The New Law of Religion, Slate (July 3, 2014, 11:54 AM), https://slate.com/news-and-politics/2014/07/after-hobby-lobby-there-is-only-rfra-and-thats-all-you-need.html [https://perma.cc/92GW-D4GT]; Marty Lederman, Hobby Lobby Part XVIII—The One (Potentially) Momentous Aspect of Hobby Lobby: Untethering RFRA from Free Exercise Doctrine, Balkinization (July 6, 2014), https://balkin.blogspot.com/2014/07/hobby-lobby-part-xviii-one-potentially.html [https://perma.cc/2A3B-MSRX]; see also Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. & Gender 35, 93 (2015) (noting a potential wave of RFRA litigation regarding employer objections to paying benefits for same-sex spouses). ↑
  26. See Bukhari, 2010 WL 3385179. ↑

  27. Id. at *4; see Rasul v. Myers (Rasul II), 563 F.3d 527, 528 (D.C. Cir. 2009); Rasul v. Myers (Rasul I), 512 F.3d 644, 649 (D.C. Cir. 2008), cert. granted, judgment vacated, 555 U.S. 1083 (2008). ↑

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