Daryoush Taha v. County of Bucks , 862 F.3d 292 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 16-3077
________________
DARYOUSH TAHA,
Individually and on Behalf of All Others Similarly Situated
v.
COUNTY OF BUCKS; BUCKS COUNTY
CORRECTIONAL FACILITY; CITIZEN INFORMATION
ASSOCIATES LLC, d/b/a Mugshotonline.com,
d/b/a bustedmugshots.com; UNPUBLISH LLC,
d/b/a Mugshots.com
COUNTY OF BUCKS; BUCKS COUNTY
CORRECTIONAL FACILITY,
Appellants
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-12-cv-06867)
Honorable Wendy Beetlestone, District Judge
______________
Argued March 15, 2017
BEFORE: GREENAWAY, JR., SHWARTZ, and
GREENBERG, Circuit Judges
(Filed: July 6, 2017)
______________
Frank A. Chernak
Burt M. Rublin [Argued]
Ballard Spahr
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Attorneys for Appellants
Alan E. Denenberg
Abramson & Denenberg
1315 Walnut Street, 12th Floor
Philadelphia, PA 19107
Robert J. LaRocca [Argued]
Jonathan Shub
Kohn Swift & Graf
One South Broad Street, Suite 2100
Philadelphia, PA 19107
Attorneys for Appellee
Crystal H. Clark
McNees Wallace & Nurick
570 Lausch Lane, Suite 200
Lancaster, PA 17601
Attorneys for Amicus Curiae County
Commissioners Association of Pennsylvania
2
Janet F. Ginzberg
Community Legal Services
1424 Chestnut Street
Philadelphia, PA 19102
Attorney for Amicus Curiae
Community Legal Services
______________
OPINION OF THE COURT
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
Defendant-appellants Bucks County, Pennsylvania, and
the Bucks County Correctional Facility bring this interlocutory
appeal of the District Court’s May 4, 2016 order certifying a
class to pursue claims against them brought by plaintiff-appellee
Daryoush Taha, the class representative. In 2011, defendants
created a publicly searchable “Inmate Lookup Tool” into which
they uploaded information about tens of thousands of people
who had been held or incarcerated at the Bucks County
Correctional Facility since 1938. Taha subsequently filed suit
against the defendants who are appellants on this appeal, and to
whom we are referring when we use the term “defendants,” and
certain other defendants that we need not identify alleging that
they had publicly disseminated information on the internet in
violation of the Pennsylvania Criminal History Record
Information Act (“CHRIA”), 18 Pa. Cons. Stat. § 9102 et seq.,
about his expunged 1998 arrest and incarceration in Bucks
3
County. The Court granted Taha’s motion for partial summary
judgment on liability on March 28, 2016, before certifying a
plaintiffs’ punitive damages class of individuals about whom
information of their incarceration had been disseminated online.
At that time the Court found that the only remaining question of
fact was whether defendants had acted willfully in disseminating
the information. After the Court certified the class by order of
May 4, 2016, we granted defendants permission on July 5, 2016,
to bring this interlocutory appeal pursuant to Fed. R. Civ. P.
23(f).
Defendants claim that the District Court erred in granting
Taha partial summary judgment on liability before ruling on his
motion seeking class certification. They also assert that the
Court erred on a number of grounds in certifying a punitive
damages class. In this regard, defendants challenge Taha’s
standing, the Court’s holding that punitive damages can be
imposed in a case in which the plaintiff does not recover
compensatory damages, the Court’s holding that punitive
damages can be imposed on government agencies, and the
Court’s finding that the predominance requirement under
Federal Rule of Civil Procedure 23(b)(3) had been met so that a
class could be certified. For the reasons that follow, we will
affirm the Court’s May 4, 2016 order granting class action
certification.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual History
On September 29, 1998, the police in Bensalem
Township in Bucks County arrested Taha and charged him with
harassment, disorderly conduct, and resisting arrest. J.A. at
4
972a. After his arrest, the police transported him to the Bucks
County Correctional Facility, where his booking photo was
taken, and where he was held for several hours before his
release. Id. at 823a-25a.
In the ensuing criminal proceedings, all counts except for
one were dismissed. Though Taha maintained his innocence on
the remaining count he agreed to participate in an Alternative
Rehabilitative Disposition program for its resolution. See id. at
963a. When Taha completed the program a year later, the Court
of Common Pleas of Bucks County issued an order directing the
expungement of Taha’s “arrest record and other criminal
records.” Id. at 964a-65a. In May and June 2000, the Bensalem
Township Police Department, the Pennsylvania State Police
Central Repository, and the Federal Bureau of Investigation all
confirmed that Taha’s record had been expunged. Id. at 970a-
74a.
Over a decade later in January 2011, defendants created a
public “Inmate Lookup Tool” on the internet using information
from their Offender Management System. Id. at 578a-79a. This
database contained information on both current and former
inmates at the Bucks County Correctional Facility. Id. at 1386a.
Information was published online between January 2011 and
June 2013 about individuals who had been held or incarcerated
at the Bucks County Correctional Facility from 1938 onward, a
total of 66,799 people.1 Id. at 422a, 1381a-86a.
1
Defendants ceased uploading arrest and incarceration
information in this format in June 2013 and changed their
inmate lookup tool in August 2013 to include only an inmate’s
name, date of birth, and correctional facility ID number. J.A. at
5
The information on Taha uploaded onto this publicly
available online search tool included his color booking
photograph from the shoulders up, sex, date of birth, height,
weight, race, hair color, eye color, citizenship, date of his
commission to the facility, date of his release from the facility,
case number for the offense charged, and “DC, HARASS” as
the charge information. Id. at 949a-50a. The uploaded
information listed his “current location” as the “MAIN” facility
in “BUCKS COUNTY.” Id. at 949a. There were also several
unfilled fields, including those for marital status, FBI number,
state ID, alias information, detainer information, and the grade,
date, and degree of offense. Id. at 949a-50a. The above
uploading did not complete the dissemination of information
about Taha as a number of private companies that crawl the
internet to collect photographs and data found Taha’s
photograph and other information about him and republished it
on their websites.2 Id. at 1078a-79a, 1081a-83a, 1785a.
Taha discovered in the fall of 2011 that information
about his several hours of incarceration at the Bucks County
Correctional Facility in 1998 was publicly accessible on the
internet despite the expungement of his record. Id. at 731a-33a.
Taha and his wife claim that they both expressed sadness,
frustration, outrage, and embarrassment over the availability of
the expunged arrest information online. Id. at 727a-31a. Taha
1386a-88a.
2
Taha included some of these companies as defendants but the
only defendants with whom we are concerned are Bucks County
and the Bucks County Correctional Facility. The companies use
photographs and data about arrest records to collect revenue or
charge fees for the removal of the data. See J.A. at 1655a-68a.
6
testified at a deposition that his mother stated that his arrest and
incarceration were “shameful” and that he had “tarnish[ed] the
family name.” Id. at 747a. He also testified to losing weight
and having difficulty sleeping after he discovered the
information on the internet. Id. at 794a-96a. He was concerned
that his previous employers or prospective future employers
might see this information. Id. at 799a-800a. But Taha does not
claim that he suffered any pecuniary loss as a result of the
publication of his booking photograph and the other
information.
B. Procedural History
Taha filed his suit on December 12, 2012, under section
9121 of CHRIA seeking injunctive relief and actual and punitive
damages under CHRIA section 9183 against defendants based
on the internet release of his “criminal history record
information” stemming from his expunged 1998 arrest. After
several years of litigation, the parties filed cross-motions for
summary judgment. On March 28, 2016, the District Court
denied defendants’ motion for summary judgment and granted
Taha’s motion for partial summary judgment on liability under
CHRIA. Defendants subsequently moved to certify the order
entered on the motions for summary judgment for interlocutory
appeal but the Court denied that motion and granted a motion
that Taha filed for class certification on his punitive damages
claim on May 4, 2016. The Court certified a class composed of
“[a]ll persons whose criminal history record information was
made available on the BCCF Inmate Lookup Tool.” Id. at 12a.
7
III. STATEMENT OF JURISDICTION AND STANDARD
OF REVIEW
The District Court had jurisdiction over Taha’s action
pursuant to 28 U.S.C. § 1332. On July 5, 2016, pursuant to 28
U.S.C. § 1292(e) and Federal Rule of Civil Procedure 23(f), we
granted defendants’ motion to allow an interlocutory appeal of
the class certification order. Thus, we have jurisdiction to
consider defendants’ appeal.
“We review a class certification order for abuse of
discretion, which occurs if the district court’s decision ‘rests
upon a clearly erroneous finding of fact, an errant conclusion of
law or an improper application of law to fact.’” In re Hydrogen
Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir. 2008)
(quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
259 F.3d 154, 165 (3d Cir. 2001)).
IV. DISCUSSION
Defendants challenge the District Court’s class
certification order on both procedural and substantive grounds.
First, they maintain that the Court erred by granting Taha’s
motion for partial summary judgment on liability prior to
deciding Taha’s motion seeking class certification. Second, they
challenge the certification decision. Taha responds that
defendants waived their argument about the order of the Court’s
decisions and that defendants’ substantive contentions are
incorrect. Taha also argues that the Court did not abuse its
discretion in certifying a class for the purpose of determining
whether defendants acted “willfully” in violating CHRIA to the
end that defendants could be subject to punitive damages.
8
A. One-Way Intervention
Defendants first claim that the District Court procedurally
erred when it granted Taha’s motion for partial summary
judgment before it ruled on Taha’s motion for class certification.
Defendants argue that the Court’s order of decision-making
violated the rule against one-way intervention dealing with the
availability of class certification under Federal Rule of Civil
Procedure 23 after the merits of a case have been decided. The
Supreme Court has outlined the history and reasoning behind the
rule against one-way intervention:
Rule 23 as it stood prior to its extensive
amendment in 1966 . . . contained no mechanism
for determining at any point in advance of final
judgment which of those potential members of the
class claimed in the complaint were actual
members and would be bound by the judgment.
Rather, ‘[w]hen a suit was brought by or against
such a class, it was merely an invitation to joinder
— an invitation to become a fellow traveler in the
litigation, which might or might not be accepted.’
A recurrent source of abuse under the former
Rule lay in the potential that members of the
claimed class could in some situations await
developments in the trial or even final judgment
on the merits in order to determine whether
participation would be favorable to their interests.
If the evidence at the trial made their prospective
position as actual class members appear weak, or
if a judgment precluded the possibility of a
favorable determination, such putative members
of the class who chose not to intervene or join as
9
parties would not be bound by the judgment. This
situation — the potential for so-called ‘one-way
intervention’ — aroused considerable criticism
upon the ground that it was unfair to allow
members of a class to benefit from a favorable
judgment without subjecting themselves to the
binding effect of an unfavorable one. The 1966
amendments were designed, in part, specifically
to mend this perceived defect in the former Rule
and to assure that members of the class would be
identified before trial on the merits and would be
bound by all subsequent orders and judgments.
Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 545-47, 94 S. Ct.
756, 762-63 (1974) (footnotes and citations omitted).
The 1966 amendments changed Rule 23 to state that a
decision on class certification was to be made “as soon as
practicable after commencement of an action.” Fed. R. Civ. P.
23(c)(1) (1966). But in 2003, Rule 23 was again amended to
state that any class certification decision should be made “[a]t an
early practicable time after a person sues or is sued as a class
representative.” Fed. R. Civ. P. 23(c)(1)(A). This is the
standard today.
Taha argues that defendants never raised the rule against
one-way intervention in the District Court or challenged the
order of the District Court’s decision-making process.
Appellee’s br. at 29-30. Thus, Taha argues, defendants have
waived their one-way intervention argument. Id. He claims that
defendants “actively participated in the process by which cross
motions for summary judgment were submitted to the District
Court for adjudication, without any objection.” Id. at 30.
10
Defendants point to citations in the record that they
contend indicate that they raised the issues that they now raise
on appeal in the District Court but the references do not make
any mention of the rule against one-way intervention, let alone
include any objection to the Court’s decision-making order.
Defendants claim that they could not have “reasonably
expected” that the Court would have ruled on the parties’ cross-
motions for summary judgment before it decided whether to
grant class certification and they therefore should not be faulted
for not raising the one-way intervention issue in that Court.
Appellants’ reply br. at 4.
“[A]bsent exceptional circumstances, issues not raised
before the district court are waived on appeal.” Fletcher-Harlee
Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d
Cir. 2007). Yet we agree with defendants that they could not
have been “prescient,” as they put it, and predicted that the
District Court would have ruled on the parties’ cross-motions for
summary judgment prior to deciding whether to grant class
action certification. See Appellants’ reply br. at 7. However,
defendants submitted two post-decision motions to that Court.
First, after the Court ruled on the parties’ cross-motions for
summary judgment on March 28, 2016, defendants filed a
motion for reconsideration on April 11, 2016, in which they did
not mention the one-way intervention issue or the Court’s
decision-making order, even though the class certification
motion still was pending. The Court then held a hearing on the
class certification motion on April 15, 2016, during which, so
far as we can ascertain, defendants did not object to the order of
the proceedings. Second, after the Court ruled on the class
certification issue on May 4, 2016, defendants filed a motion to
certify the summary judgment order for interlocutory appeal
11
without suggesting that they had objected to the District Court’s
order when making its decisions. Overall, it is clear that
defendants had multiple opportunities to raise the one-way
intervention issue in the District Court but failed to do so.
Defendants argue that because we have discretion to
address issues even if not raised in a district court, we should
consider the one-way intervention question. They rely on two
cases to support their position but both are distinguishable from
this case. Appellants’ reply br. at 8. First, in Bagot v. Ashcroft,
we entertained a plaintiff’s argument that he had not raised in
the district court but did so because it was “a pure question of
law, and one that [was] closely related to arguments that [the
plaintiff] did raise in that court.” 398 F.3d 252, 256 (3d Cir.
2005). In Bagot the stakes were very high, as the failure to
address the argument “would result in the substantial injustice of
deporting an American citizen.” Id. Then in Huber v. Taylor,
we found that a choice of law issue had not been waived when
the district court had overlooked the issue even though it was
“inherent in the parties’ positions throughout th[e] case,” which
the district court could see from the parties’ consistent citations
to different state laws in their briefs. 469 F.3d 67, 75 (3d Cir.
2006).
In contrast to the parties in Bagot and Huber, defendants
in this case appear not to have made even a passing or indirect
mention of the one-way intervention issue in the District Court
either before or after the Court made its decisions on summary
judgment and class certification. Furthermore, the one-way
intervention issue is unrelated to the other arguments that
defendants advanced in that Court. It is clear that they had
numerous opportunities to inform that Court that they took issue
with the order in which the Court was making its decisions but
12
they never did so. Thus, this case is not a rare case in which we
will exercise our discretion to entertain an issue initially raised
on appeal.
B. Class Certification Decision
Next, defendants argue that the District Court abused its
discretion in certifying a class solely for the purpose of
determining whether punitive damages should be imposed
against them. They claim that Taha does not have Article III
standing or “aggrieved” party standing as CHRIA requires.
They maintain that the District Court erred in certifying the
punitive damages class where the class representing Taha had
not suffered compensatory damages. They contend that CHRIA
does not permit the imposition of punitive damages on
government agencies because CHRIA does not contain a
targeted waiver of sovereign immunity. Finally, they argue that
the Court erred in finding that the Rule 23(b)(3) predominance
factor was met because, in their view, the determination of the
amount of punitive damages depends on the impact on class
members by the disclosure of their CHRIA-protected
information. Taha contests all of these points and maintains that
the Court properly certified the punitive damages class.3
3
Taha also contends that defendants waived their Rule 23
arguments, other than the argument addressing the
predominance factor, because they did not raise these arguments
when opposing the motion for class certification. However,
unlike defendants’ one-way intervention argument, which
defendants did not raise even in passing at any point before the
District Court, defendants did raise all of their other arguments
at various times before that Court and we thus will consider
13
For the reasons that follow, we determine that Taha has
both Article III and statutory “aggrieved” party standing. We
conclude that the District Court did not err in holding that, under
CHRIA, in certain circumstances punitive damages may be
imposed against a defendant even though the plaintiff does not
recover compensatory damages from that defendant.
Furthermore, CHRIA on its face permits punitive damages to be
imposed on government agencies. Finally, we hold that the
Court properly determined that common questions predominate
over individual questions in the case so that the predominance
aspect of Rule 23 has been met. Accordingly, we will affirm the
District Court’s class certification order of May 4, 2016, in all
respects.
1. Article III Standing
Defendants maintain that Taha lacks Article III standing
because the District Court found that he had not suffered
compensatory damages attributable to the dissemination of the
expunged information in violation of CHRIA.4 Specifically,
they contest Taha’s ability to show that he suffered an “injury in
fact” as required to establish standing. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992)
(stating that “the irreducible constitutional minimum of standing
them.
4
This issue is within the limited scope of defendants’ Rule
23(f) appeal because we consider “Article III standing as a
necessary threshold issue to our review” of a class certification
order. McNair v. Synapse Grp. Inc., 672 F.3d 213, 223 n.10 (3d
Cir. 2012).
14
contains three elements,” the first of which is that “the plaintiff
must have suffered ‘an injury in fact’”).
“To establish injury in fact, a plaintiff must show that he
or she suffered ‘an invasion of a legally protected interest’ that
is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. at
2136). But the Supreme Court has emphasized that an
intangible injury may be sufficiently concrete so that its redress
will satisfy the injured party’s standing requirement. Id. at 1549.
We have applied this principle. See In re Nickelodeon
Consumer Privacy Litig., 827 F.3d 262, 273 (3d Cir. 2016), cert.
denied sub nom. C. A. F. v. Viacom Inc., 137 S. Ct. 624 (2017)
(mem.). In Nickelodeon, we held that the plaintiffs — who had
alleged a “perhaps intangible” harm when their legally protected
information was unlawfully disclosed on the internet — had
pled facts sufficient to establish Article III standing.5 Id. at 273-
74 (internal quotation marks omitted); see also In re Google Inc.
Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 134-
35 (3d Cir. 2015), cert. denied sub nom. Gourley v. Google,
Inc., 137 S. Ct. 36 (2016) (mem.) (finding that plaintiffs had
shown injury in fact when they made “highly specific allegations
that the defendants, in the course of serving advertisements to
their personal web browsers, implanted tracking cookies on their
personal computers,” explaining that “[t]o the extent that the
defendants believe[d] that the alleged conduct implicate[d]
5
The information allegedly included data collected from minors
accessing the internet, such as children’s genders, birthdates,
browser settings, IP addresses, and web communications.
Nickelodeon, 827 F.3d at 269.
15
interests that are not legally protected, this is an issue of the
merits rather than of standing”). We have stated that focusing
on “economic loss” in determining whether a plaintiff has
Article III standing is “misplaced.” Nickelodeon, 827 F.3d at
272-73 (quoting Google, 806 F.3d at 134).
We are satisfied that Taha has shown for standing
purposes that he suffered an injury in fact. Like the plaintiffs in
Nickelodeon and Google, he claims to have been “intangibly”
but personally and actually injured when his arrest information
and booking photograph were publicly disseminated. He
testified in a deposition that he suffered from humiliation,
sadness, and embarrassment as a result of the posting; and lost
sleep and weight after he discovered the listing. Regardless of
the ultimate outcome on the class’s punitive damage claim, Taha
has claimed a sufficiently particularized and concrete injury to
demonstrate that he has Article III standing.
2. “Aggrieved” Standing
Defendants next argue that Taha was not “aggrieved” as
the CHRIA statutory scheme requires to recover damages and
therefore that he is not an appropriate class representative. See
Appellants’ br. at 21 (arguing that if Taha “is not ‘aggrieved’ . .
. [he] is not entitled to maintain a punitive damages claim under
CHRIA even on behalf of himself, much less a class of 66,799
offenders”).
CHRIA requires that a person be “aggrieved” to recover
compensatory damages under the statute but it does not specify
the injuries that can cause actual and real damages. See 18 Pa.
Cons. Stat. § 9183(b)(2) (providing that “[a] person found by the
court to have been aggrieved by a violation of this chapter or the
16
rules or regulations promulgated under this chapter” can receive
certain forms of relief). However, the Pennsylvania Supreme
Court has held that “[a] party is aggrieved if he can demonstrate
that he has a substantial, direct, and immediate interest in the
outcome of the litigation.” Pa. Gaming Control Bd. v. City
Council of Phila., 928 A.2d 1255, 1265-66 (Pa. 2007). As that
court has explained:
A ‘substantial’ interest is an interest in the
outcome of the litigation which surpasses the
common interest of all citizens in procuring
obedience to the law. A ‘direct’ interest requires
a showing that the matter complained of caused
harm to the party’s interest. An ‘immediate’
interest involves the nature of the causal
connection between the action complained of and
the injury to the party challenging it.
In re Hickson, 821 A.2d 1238, 1243 (Pa. 2003) (citation
omitted).
But the Pennsylvania court has not required that this
interest be pecuniary. Wm. Penn Parking Garage, Inc. v. City of
Pittsburgh, 346 A.2d 269, 281 (Pa. 1975) (“[I]t is clear that
some interests will suffice to confer standing even though they
are neither pecuniary nor readily translatable into pecuniary
terms.”). Defendants do not satisfactorily explain why Taha
fails to have a “substantial, direct, and immediate interest in the
outcome of the litigation” beyond their arguments in the Article
III standing context. Taha makes a plausible argument that
defendants caused him to suffer harm unique to him rather than
17
causing general harm common to all individuals after defendants
released information about his expunged arrest. Moreover, Taha
asserts that there was a causal connection between defendants’
actions and his harm. Thus, Taha has sufficiently pleaded that
he has been aggrieved under CHRIA to serve as a class
representative.
3. Availability of Punitive Damages Without
Compensatory Damages
The parties disagree on the answer to the question of
whether the District Court could certify a class for punitive
damages after it found that the class representative was not
entitled to compensatory damages. In certifying the class, the
Court concluded that the only question left in the case was a
class-wide question about “the County Defendants’ willfulness”
in its actions violating CHRIA because Taha did not have a
valid claim for “actual and real damages.” J.A. at 9a. Thus, the
Court premised its class certification decision on its holding that
Taha could recover punitive damages even though he could not
recover compensatory damages.
When the District Court held that punitive damages could
be imposed under CHRIA even though Taha had not suffered
compensatory damages, it relied on a Pennsylvania Supreme
Court case which addressed “whether punitive damages must
bear a reasonable relationship to compensatory damages which
are awarded.” Kirkbride v. Lisbon Contractors, Inc., 555 A.2d
800, 801 (Pa. 1989). In addressing this question, the Kirkbride
court explained that although “punitive damages must, by
necessity, be related to the injury-producing cause of action[,]
[t]his does not mean . . . that specific compensatory damages
must be awarded to sustain a punitive damages award.” Id. at
18
802. In a case where “compensatory damages had not been
awarded, punitive damages could be appropriate, the critical
factor being the establishment of sufficient evidence to sustain
the cause of action.” Id. at 803.
The court in Kirkbride distinguished its prior opinion in
Hilbert v. Roth, 149 A.2d 648 (Pa. 1959), in which a plaintiff
was unsuccessful when he “attempted to pursue an independent
cause of action for punitive damages since the cause of action
for compensatory damages had been dismissed.” Id. at 802.
The Kirkbride court observed that in Hilbert there was “no cause
of action upon which the plaintiff could claim punitive
damages” after “the underlying cause of action was dismissed.”6
6
In all the Pennsylvania state court cases which defendants cite
to refute the theory that punitive damages can be recovered in
the absence of compensatory damages, there was not a cause of
action supporting the recovery of punitive damages alone. See
Smith v. Grab, 705 A.2d 894, 901 (Pa. Super. Ct. 1997) (finding
that although a punitive damages issue was not “ripe for
review,” “the entry of a nonsuit [against the plaintiff] by the trial
court precluded the recovery of compensatory damages; thus,
punitive damages were foreclosed as well” because the plaintiff
did not have a remaining cause of action on which to rely);
Schecter v. Watkins, 577 A.2d 585, 595 (Pa. Super. Ct. 1990)
(stating that where the jury entered a “verdict of non-liability”
for the defendants and accordingly “no actual damages [were]
sustained,” punitive damages could not be recovered because
they “must arise out of liability on the cause of action” and be
“an element of damages flowing therefrom”).
Defendants cite our opinion in Tunis Bros. Co. v. Ford
Motor Co., 952 F.2d 715 (3d Cir. 1991), rendered after
19
Id. It contrasted this scenario with one in which “liability was
determined on the facts and [solely] punitive damages were
awarded predicated upon the finding of liability.” Id.
In considering the relevant statutory language in this case
we build on our understanding that, under Pennsylvania law, a
court may impose punitive damages even if the plaintiff has not
suffered compensatory damages provided that there is a cause of
action to support the imposition of punitive damages. The civil
penalties section of CHRIA states that:
A person found by the court to have been
aggrieved by a violation of this chapter or the
rules or regulations promulgated under this
chapter, shall be entitled to actual and real
damages of not less than $100 for each violation
and to reasonable costs of litigation and attorney’s
fees. Exemplary and punitive damages of not less
than $1,000 nor more than $10,000 shall be
imposed for any violation of this chapter, or the
rules or regulations adopted under this chapter,
found to be willful.
§ 9183(b)(2). Unlike in other cases in which courts must
grapple with the question of whether there can be a cause of
action for punitive damages, CHRIA provides for the imposition
Kirkbride to support their position. Appellants’ reply br. at 24.
However, Tunis’ limited mention of this issue included a
citation to a 1984 case, Emerick v. U.S. Suzuki Motor Corp.,
750 F.2d 19 (3d Cir. 1984), that relied on Hilbert, which
Kirkbride distinguished. See Kirkbride v. Lisbon Contractors,
Inc., 555 A.2d 800, 802 (Pa. 1989).
20
of punitive damages without any explicit language linking the
imposition of punitive damages to the recovery of actual and
real damages. Although any underlying cause of action to
support imposition of punitive damages has as an element the
presence of an aggrieved plaintiff — a threshold standing
requirement — as well as a violation of the statute and, for the
imposition of punitive damages, a finding of a defendant’s
willfulness, the plain statutory language does not condition the
imposition of punitive damages on a plaintiff’s recovery of
compensatory damages.
Defendants argue that it would be “absurd” for at least
$1,000 in punitive damages to be imposed, the minimum
recovery for punitive damages under CHRIA for a CHRIA
willful violation, inasmuch as the District Court already has
found that Taha is not entitled to any actual and real damages
for the violation, not even the statutory minimum amount of
$100.7 Appellants’ br. at 21, 24-25. They argue that such an
7
In their reply brief, defendants rely extensively on an
interpretation of the federal Privacy Act by the Supreme Court
to support this point, but the case they cite involved a different
question from the one before us. See Appellants’ reply br. at
16-18 (citing FAA v. Cooper, 566 U.S. 284, 132 S. Ct. 1441
(2012)). In Cooper, the Supreme Court considered whether the
Privacy Act allowed the recovery of damages for mental and
emotional distress under the Act’s “actual damages” provision,
holding that it did not. 566 U.S. at 304, 132 S.Ct. at 1456. It
did not address punitive damages, let alone the availability of
statutory punitive damages when a plaintiff has suffered mental
and emotional harm without accompanying “actual and real”
damages under a statute like CHRIA.
21
interpretation would be contrary to legislative intent, although
they do not cite any relevant legislative history or evidence
specifically about the purpose of CHRIA to support their
argument. See id. at 23-25.
Taha responds that CHRIA plainly shows that even
though it could have done so, the Pennsylvania legislature did
not condition the imposition of punitive damages under CHRIA
on the plaintiff’s recovery of compensatory damages.
Appellee’s br. at 45. Taha also notes that the District Court has
not yet determined what action constitutes a “violation” of
CHRIA — each individual internet posting, the single decision
to upload the information, or some other action or actions. Id. at
46-47. At oral argument on Taha’s motion for class
certification, the District Court suggested that it was possible
that “the decision to put all the records on the lookup tool was
one violation.” J.A. at 2174a. While defendants and their
supporting amicus curiae make dire predictions about the
potential financial burdens on Pennsylvania taxpayers from the
class certification, these arguments are premature as the District
Court has not made any decision regarding what conduct
constitutes a violation or violations.8
8
The amicus curiae brief filed by the County Commissioners
Association of Pennsylvania (“CCAP”) presents some potential
calculations of a punitive damages range, based on assumptions
it makes about what would constitute a “violation” of CHRIA in
this case. See CCAP Amicus Curiae br. at 7-9. Nevertheless,
we are confident that even if the class is successful in advancing
its contention that punitive damages should be imposed on
defendants, the District Court or this Court on appeal will apply
CHRIA so that any punitive damages imposed would be
22
Punitive damages serve a different purpose than
compensatory damages inasmuch as in the tort context, they
generally are imposed “to punish . . . for outrageous conduct and
to deter . . . from similar conduct.” Hutchison ex rel. Hutchison
v. Luddy, 870 A.2d 766, 770 (Pa. 2005). In the penalties
provision of CHRIA, the Pennsylvania legislature explicitly
provided for the imposition of punitive damages without
including any language making the recovery of compensatory
damages a prerequisite for their imposition. Because punitive
damages are imposed for a different purpose than compensatory
damages, we cannot say that it would be “absurd” or
“unreasonable,” as defendants suggest, to read the statute to
permit the imposition of punitive damages in the absence of
compensatory damages so long as there is a cause of action to
support the imposition of punitive damages.
Given the particular harms that can be wrought by the
release of someone’s criminal history information, there may be
instances in which an individual faces consequences beyond
humiliation and embarrassment which may be difficult or
impossible to evaluate in monetary terms. See Community
Legal Services Amicus Curiae br. at 7, 14 (outlining how
“[i]ndividuals are routinely denied employment, housing, and
education opportunities due to their criminal records, however
minor they may be,” and suffer adverse treatment by entities or
individuals who rely on “non-conviction data”). CHRIA on its
face permits the imposition of punitive damages on defendants
who willfully cause this type of harm. Thus, we cannot
reasonable. After all, the Pennsylvania legislature cannot have
intended to provide for the imposition of unreasonable punitive
damages. In any event, the question of how damages under
CHIRA are calculated and allocated is not before us.
23
conclude that the District Court erred when it based its class
certification order on its conclusion that punitive damages could
be imposed under CHRIA even if Taha could not recover
compensatory damages.
4. Availability of Punitive Damages Against
Government Agencies
Defendants also argue that inasmuch as they are
government agencies, the District Court erred when it certified a
punitive damages class that could proceed against them.
Appellants’ br. at 35-41. The Court did not address this issue
when making its class action certification decision. But the
Court earlier had considered whether punitive damages could be
imposed on a government agency when the Court addressed the
summary judgment motions for at that time it relied on its prior
conclusion on a motion to dismiss that CHRIA authorizes the
imposition of damages against government agencies. It
therefore held that CHRIA includes a legislatively targeted
waiver of sovereign immunity. See J.A. at 23a-24a. The Court
reasoned that:
[T]here is no precedent for the proposition that
punitive damages imposed pursuant to CHRIA are
inapplicable to state agencies. . . . As discussed at
length in Taha I, several Pennsylvania courts have
also held or assumed that CHRIA provides for
damages against governmental units. Thus, this
Court predicted in Taha I that the Pennsylvania
Supreme Court would find that CHRIA
‘demonstrates a clear legislative intent to hold
government entities liable for damages for
violation of section 9121.’ Without further
24
guidance from the Pennsylvania Supreme Court . .
. this prediction is unchanged.
Id. (citations omitted). The status of this case requires us to
address the question of whether punitive damages can be
imposed on a government agency in order to determine whether,
depending on the facts of the case, it would be proper to certify
a class solely for the purpose of potentially imposing punitive
damages on such agencies under CHRIA.
The Pennsylvania Supreme Court has stated that as a
general rule, “government agencies have been exempt from the
imposition of punitive damages.” Feingold v. Se. Pa. Transp.
Auth., 517 A.2d 1270, 1276 (Pa. 1986). Punitive damages
generally are prohibited “unless expressly authorized by statute.”
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 260 n.21,
101 S. Ct. 2748, 2756 n.21 (1981).
Defendants argue that CHRIA does not include a
sufficiently “express” authorization for punitive damages to be
imposed against government agencies. They argue that CHRIA
lacks such authorization because each section of CHRIA does
not include its own penalties provision stating that punitive
damages may be imposed for a violation of that provision but
CHRIA includes only a separate penalties provision. They also
argue that the penalties provision does not expressly allow
punitive damages to be imposed on a government agency.
We disagree. On its face, CHRIA applies to “persons
within this Commonwealth and to any agency of the
Commonwealth or its political subdivisions which collects,
maintains, disseminates or receives criminal history record
information.” 18 Pa. Cons. Stat. § 9103. Although the statute
25
does not define an “agency,” it states that
[c]riminal justice agencies include, but are not
limited to: organized State and municipal police
departments, local detention facilities, county,
regional and State correctional facilities,
probation agencies, district or prosecuting
attorneys, parole boards, pardon boards, the
facilities and administrative offices of the
Department of Public Welfare that provide care,
guidance and control to adjudicated delinquents,
and such agencies or subunits thereof, as are
declared by the Attorney General to be criminal
justice agencies as determined by a review of
applicable statutes and the State and Federal
Constitutions or both.
Id. § 9102 (emphasis added). It is difficult to understand how a
more expansive definition of a criminal justice agency could be
written.
The majority of CHRIA’s provisions govern the conduct
of government agencies in relation to the collection,
management, use, or dissemination of criminal history record
information.9 See, e.g., id. §§ 9111, 9113-14, 9121, 9124, 9131,
9141, 9171. Section 9181 of CHRIA provides that “[a]ny
person, including any agency or organization, who violates the
9
There are exceptions to these rules in sections governing the
use of criminal records by employers and the right of an
individual to access and review information about the
individual’s own criminal history record. See 18 Pa. Cons. Stat.
§§ 9125, 9151, 9153.
26
provisions of this chapter or any regulations or rules
promulgated under it may . . . [b]e subject to civil penalties or
other remedies as provided for in this chapter.” This language
does not limit CHRIA’s available remedies to situations in
which there have been violations of only certain of its
provisions. As we quoted above in relevant part, CHRIA’s civil
penalties provision states that “[a] person found by the court to
have been aggrieved by a violation of this chapter or the rules or
regulations promulgated under this chapter” can recover “actual
and real damages” and possibly “[e]xemplary and punitive
damages,” if they are imposed. Id. § 9183.
The section under which Taha brought his suit — section
9121 — provides that “[c]riminal history record information
shall be disseminated by a State or local police department to
any individual or noncriminal justice agency only upon request.”
It states that before any information is disseminated, certain
information must be removed from the record; specifically,
“[a]ll notations of arrests, indictments or other information
relating to the initiation of criminal proceedings where: (A)
three years have elapsed from the date of arrest; (B) no
conviction has occurred; and (C) no proceedings are pending
seeking a conviction” as well as “[a]ll information relating to a
conviction and the arrest, indictment or other information . . .
which is the subject of a court order for limited access.” Id. §
9121(b)(2).
But section 9121 does not contain limitations indicating
that “any agency or organization” found in violation of that
provision, per section 9181, would not be subject to the
expressly outlined penalties imposed under section 9183.10 To
10
Defendants argue that section 9121 of CHRIA does not
27
the contrary, the clear language of the statute, read in its entirety,
indicates that the Pennsylvania legislature intended individuals
to be able to recover damages, possibly including punitive
damages, against government entities willfully violating
CHRIA. We need not look beyond this language to make this
determination inasmuch as defendants do not provide us with
persuasive authority to the contrary.11
include an express waiver of sovereign immunity for the
purposes of imposing punitive damages on government entities
because only one section of the statute — section 9106 —
contains a “penalties” provision applicable to the section in
which it is contained, and § 9121 does not contain any similar
provision. But it would render the plain language of CHRIA’s
general penalties provision nonsensical if we read it to apply
solely to section 9106. After all, both sections 9181 and 9183
refer to violations of “the provisions of this chapter.” See 1 Pa.
Cons. Stat. § 1921(a) (“Every statute shall be construed, if
possible, to give effect to all its provisions.”); id. § 1922(1)
(“[T]he General Assembly does not intend a result that is
absurd, impossible of execution or unreasonable.”).
11
The only Pennsylvania case defendants cite that discusses the
imposition of punitive damages under CHRIA merely noted in
remanding the case to the Commonwealth Court that “while our
case law suggests the Commonwealth may be exempt from the
imposition of punitive damages, the Commonwealth Court did
not develop its reasoning concerning the denial of punitive
damages [in that case], even in light of the terms of the statute
which provides for such a remedy.” Hunt v. Pa. State Police of
Commonwealth, 983 A.2d 627, 639 (Pa. 2009) (citations
omitted) (emphasis added). The case on which the Pennsylvania
28
We thus conclude that CHRIA permits Taha and the
certified class to pursue their case seeking to impose punitive
damages against defendants. Although we are mindful that this
decision recognizes that punitive damages may be imposed on
government defendants, we are confident that the District Court
will ensure that any award of punitive damages, if there is one,
is reasonable and proportionate to the wrong committed,
particularly inasmuch as that Court has not yet determined what
conduct constitutes a “violation” of CHRIA.
5. Predominance
Finally, defendants contest the District Court’s
certification of a punitive damages only class because they
contend that the consideration of the amount of punitive
damages to impose “necessarily raise[s] individualized issues,”
preventing the action from meeting the predominance
requirement of Rule 23(b)(3). Appellants’ br. at 26. But the
Court found after granting partial summary judgment for Taha
on liability that the only remaining question of fact was whether
defendants’ actions were “willful,” an issue which
Supreme Court relied for its suggestion that government entities
may be exempt from the imposition of punitive damages
involved a common law claim based on the alleged breach of a
collective bargaining agreement. See City of Phila. Office of
Hous. & Cmty. Dev. v. AFSCME, 876 A.2d 375 (Pa. 2005).
Thus, Hunt differs from the case before us because here there is
targeted legislation primarily regulating the actions of
government agencies in their management and dissemination of
criminal history record information and the legislation includes
an explicit punitive damages provision.
29
“predominates over any individual issues of its potential
members.” See J.A. at 9a.
Neither Taha nor defendants provide any binding
authority from the Supreme Court or this Court concerning the
availability or boundaries of the certification of a class solely for
the purpose of the imposition of punitive damages.12 The
District Court did not address this issue, and the Federal Rules
of Civil Procedure say nothing specifically either prohibitive or
permissive with respect to this point. We therefore must
consider this question by analyzing the “predominance” prong
of Rule 23(b)(3), on which defendants focus on appeal.
A court certifying a class under Federal Rule of Civil
Procedure 23(b)(3) must “find[] that the questions of law or fact
common to class members predominate over any questions
affecting only individual members.” The Supreme Court has
explained that:
An individual question is one where members of a
proposed class will need to present evidence that
varies from member to member, while a common
question is one where the same evidence will
suffice for each member to make a prima facie
showing [or] the issue is susceptible to
generalized, class-wide proof.
12
Rather, they rely on opinions from the Court of Appeals for
the Fifth Circuit and nonprecedential opinions, one from the
Court of Appeals for the Fourth Circuit and the rest from
various district courts. See Appellants’ br. at 26-30; Appellee’s
br. at 54-55; Appellants’ reply br. at 31-32.
30
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016)
(internal quotation marks omitted). Thus, “[t]he Rule 23(b)(3)
predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.”
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S. Ct.
2231, 2249 (1997). To determine this level of cohesion, “the
predominance requirement focuses on whether essential
elements of the class’s claims can be proven at trial with
common, as opposed to individualized, evidence.” Hayes v.
Wal-Mart Stores, Inc., 725 F.3d 349, 359 (3d Cir. 2013). “The
predominance requirement applies to damages as well, because
the efficiencies of the class action mechanism would be negated
if ‘[q]uestions of individual damage calculations . . . overwhelm
questions common to the class.’” In re Modafinil Antitrust
Litig., 837 F.3d 238, 260 (3d Cir. 2016) (alteration in original)
(quoting Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433
(2013)).
The District Court found that the predominance prong of
the class action rule had been met because it had “already held
that the County Defendants improperly published CHRIA
protected information on the Inmate Lookup Tool” and thus
“[t]he only question remaining in this case concerns the award
of punitive damages,” a question that turned on whether
defendants’ actions in posting the criminal history record
information were “willful.” J.A. at 9a. Therefore, the Court
concluded that “[t]he class-wide question of fact as to the
County Defendants’ willfulness predominates over any
individual issues of its potential members.” Id.
Defendants argue that the District Court erred because it
did not examine how the impact of the disclosure could
undermine the damages calculation on a class-wide basis. In
31
this regard, we point out that CHRIA does not provide a
standard punitive damages amount but instead provides for a
range of damages between $1,000 and $10,000 “for any
violation.” § 9183(b)(2). Under Pennsylvania tort law, “the
nature and extent of the harm” caused by a defendant is one of
three factors a fact-finder may consider in determining the
amount of punitive damages. Kirkbride, 555 A.2d at 803.
Defendants contend that the existence of this permissible factor
— one of several that a fact-finder may consider — dooms the
class’s ability to meet predominance.
However, our core analysis on the predominance issue
focuses on whether the class can meet the “essential elements”
of its claims “with common, as opposed to individualized,
evidence.” See Hayes, 725 F.3d at 359. At this stage of the
proceedings in this case, the only remaining factual issue is
whether defendants willfully violated CHRIA. Clearly, the trier
of fact should be able to determine whether a violation was
“willful” by considering common evidence regarding
defendants’ actions and intent without taking into account
information regarding the individual class members. After all,
the class members played no role when defendants released the
information about them by posting it online. A determination of
the “essential element” in this case centers on common acts by
defendants and perhaps their states of mind. Because any
“actual and real” damages suffered by individual class members
cannot be considered in this case as the class was not certified
for the purpose of making such determinations, the impact of
defendants’ actions on individual plaintiffs has no bearing on
the remaining essential element in this case, i.e., defendants’
willfulness. Therefore, the District Court did not make an error
when it found that the predominance factor had been met.
32
V. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s May 4, 2016 order certifying a class in this case.
33