Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/38

Rh actions were moot at the time of certification. First, as the Court recognizes, class actions are ordinarily “moot if no named class representative with an unexpired claim remain[s] at the time of class certification.” United States v. Sanchez-Gomez, 584 U. S. ___, ___ (2018) (slip op., at 4); ante, at 9. At the time of class certification, all six of the named plaintiffs had received bond hearings or cancellation of removal. As I understand the plaintiffs’ arguments, that was the full relief that they sought: “individualized bond hearings where they may attempt to prove that their release would not create a risk of flight or danger to the public.” Motion for Class Certification in Preap v. Beers, No. 4:13–cv–5754 (ND Cal.), Doc. 8, p. 8; see Complaint for Injunctive and Declaratory Relief in Preap, supra, Doc. 1, p. 3 (seeking “immediate individualized bond hearings”); First Amended Class Action Complaint in Khoury v. Asher, No. 2:13–cv–1367 (WD Wash.), Doc. 19, p. 13 (requesting relief of “individualized bond hearings to all Plaintiffs”). The Court concludes that some of the named plaintiffs still faced the threat of rearrest and mandatory detention at the time of class certification because the bond hearings that they received were provided as part of a preliminary injunction in a separate case that was later dissolved. But whether the plaintiffs actually faced that threat has not been addressed by the parties, and I question whether this future contingency was sufficiently imminent to support Article III jurisdiction.

If the threat of rearrest and mandatory detention was too speculative to support jurisdiction, I disagree with the Court that our jurisdiction would be saved by our precedent on transitory claims. Ante, at 9–10. We have held that a court has Article III jurisdiction to certify a class action when the named plaintiffs’ claims have become moot if the claim is “so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s