AYUDA, INC., et al. v. Janet RENO, Individually and as Attorney General of the United States, et al., Appellants (Two Cases). AYUDA, INC., et al., appellants, v. Janet RENO, et al.
Nos. 88-5226, 90-5293 and 89-5301
United States Court of Appeals, District of Columbia Circuit.
Decided Oct. 26, 1993.
7 F.3d 246
Before: WALD, SILBERMAN and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN. Dissenting opinion filed by Circuit Judge WALD.
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Accordingly, because we lack the authority to hear the agency‘s objections relating to the supervisory employees, we dismiss the agency‘s petition, and we grant the FLRA‘s cross-petition for enforcement.
SILBERMAN, Circuit Judge:
This case is returned to us by the Supreme Court for the second time. --- U.S. ----, 113 S.Ct. 3026, 125 L.Ed.2d 714 (1993). The Supreme Court vacated and remanded our first opinion, Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1989), and asked us to reconsider the issues presented in light of its opinion in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991).
I.
As we described in our first opinion, this litigation—directed at the INS’ administration of the special one-time IRCA amnesty program—came on the heels of a developing line of cases in which aliens, or organizations representing aliens, sought to supplement courts of appeals review of INS deportation orders under
We concluded that the district court lacked jurisdiction on two separate grounds. First, we thought that the statutory review provisions, which provide for exclusive review in the courts of appeals for all deportation orders,3 precluded a district court challenge to any formal or informal manifestation of the INS’ construction of aliens’ substantive rights under the statute. Ayuda, 880 F.2d at 1333-40. Second, we determined that INS had not yet decided whether the absence of quarterly reports in an alien‘s INS file put the government on constructive notice that the alien‘s illegal status was “known to the government“. Thus, even if the district court enjoyed statutory jurisdiction, the case was not yet ripe. Ayuda, 880 F.2d at 1343. We did not reach the government‘s challenge to the standing of organizational plaintiffs upon which the district court had premised “plaintiffs” standing. Ayuda, 880 F.2d at 1339-40.
Subsequently, the Supreme Court in McNary held that district courts did have jurisdiction to entertain a constitutional and statutory challenge to the INS’ alleged failure to provide due process in the administration of another portion of the amnesty program. The INS had been accused of depriving applicants of an opportunity to challenge material evidence, to present witnesses, and to employ competent interpreters, and the Court concluded that Congress did not mean to limit judicial review to the court of appeals in such a case. McNary v. Haitian Refugee Center, Inc., 498 U.S. at 487-88, 494, 111 S.Ct. at 893-94, 897.
On remand, we sought to reconcile what we thought were conflicting currents in the Supreme Court‘s opinion. On the one hand, the Court‘s language did appear to restrict the phrase “a determination respecting an application“—on which court of appeals jurisdiction is fixed—to “an individual denial of status” and not a “group of INS decisions.” 498 U.S. at 492, 111 S.Ct. at 896. Still we did not think the IRCA judicial review provisions could reasonably be construed to permit two or more aliens to sue freely in the district court, if one alien would be limited presumably to the court of appeals. See Ayuda, 948 F.2d at 749 n. 5. Instead, we concluded that the Supreme Court meant McNary to stand as an exception to the exclusive court of appeals review of INS legalization determinations (after deportation orders) for collateral procedural challenges if the administrative record would be inadequate to support appellate review of those issues in the courts of appeals. If, instead, aliens were seeking review of INS interpretations of IRCA—which the plaintiffs in our case clearly were—the district court lacked jurisdiction.
We rejected the notion that to force any alien to come forward and provoke a deportation order as a prerequisite to challenging his or her denial of legalization would amount to a “complete denial of judicial review for most undocumented aliens,” McNary, 498 U.S. at 497, 111 S.Ct. at 898, and therefore should be thought “inadequate” within the meaning of McNary‘s holding. We did so because otherwise we would have either ignored the statutory scheme for exclusive court of appeals jurisdiction in cases involving a “determination respecting an application” or been faced with what seemed an impossible analytic task of drawing a boundary between the jurisdiction of the district court and courts of appeals in cases challenging INS’ substantive interpretation of IRCA. See Ayuda, 948 F.2d at 753; 958 F.2d 1089, 1092-93 (D.C.Cir.1992) (Silberman, J., concurring in the denial of rehearing en banc).
In addition, we reiterated our view that the plaintiffs’ challenge was unripe (the INS still had not resolved the “known to the government” issue) and we once again reserved the issue of the QDEs standing. See Ayuda, 958 F.2d at 1093 (Silberman, J., concurring in the denial of rehearing en banc).
The Supreme Court then granted certiorari in CSS, a case in which the Ninth Circuit read McNary contrary to the way we did.4 While a petition for certiorari in Ayuda was pending before the Supreme Court, the Solicitor General notified the Court that the INS had recently arrived at an agency position as to whether the absence of documents from government files indicated that the alien‘s illegal status was known to the government. Hence, the particular ripeness ground upon which we had relied was no longer present.
The Court handed down CSS this summer and subsequently vacated our decision (along with several cases that disagreed with our opinion) for reconsideration in light of CSS. We then asked the parties for their views. Perhaps understandably in light of their long litigation struggle, the plaintiffs and the government disagree both as to the meaning of CSS and as to the appropriate next step in our case. The plaintiffs argue that “[b]ecause the generic challenges in Ayuda can be resolved without referring to or relying on the denial of any individual application (as indeed they were resolved by the district court), the district court may properly exercise jurisdiction over plaintiffs’ challenges.” The government argues that the district court lacked jurisdiction as the plaintiffs challenged INS’ substantive regulations, rather than collateral procedures.
We think plaintiffs badly misread the Supreme Court‘s opinion. CSS confirmed the plaintiffs’ view of McNary‘s construction of section 1255a(f)(1) as applying only to the denial of a single application. But the Court, noting that federal courts have been reluctant to apply injunctive and declaratory judgment remedies to administrative determina
Under IRCA, as the Supreme Court observed, an alien who is denied legalization is subject to the exclusive administrative and judicial review provisions of that statute. His claim may, in general terms, be thought ripe, yet the statute directs him exclusively to the court of appeals and only on a review of a deportation order.7
Although the Supreme Court initially rejected our construction of the statutory jurisdiction provisions, it ultimately came very close to affirming our holding by seeming to rely on those same provisions:
The ripeness doctrine and the Reform Act‘s jurisdictional provisions would thus dovetail neatly, and not necessarily by mere coincidence. Congress may well have assumed that, in the ordinary case, the courts would not hear a challenge to regulations specifying limits to eligibility before those regulations were actually applied to an individual, whose challenge to the denial of an individual application would proceed within the Reform Act‘s limited scheme.
CSS, 509 U.S. at 65-66, 113 S.Ct. at 2485.
The Court also agreed with our reading of McNary, limiting its reach to situations in which plaintiffs raised “procedural” objections that could not receive “practical judicial review within the [statutory] scheme.” Compare CSS, 509 U.S. at 61, 113 S.Ct. at 2497 with Ayuda, 948 F.2d at 753.8 At the end of the day, then, the Supreme Court conclusively foreclosed all efforts to gain federal district court review of INS interpretations of IRCA. Jurisdiction of the federal district courts could be invoked, as in McNary, only when it is necessary to supplement or aid ultimate court of appeals review under section 1255a(f)(1).
II.
In CSS the Supreme Court remanded the case to the Ninth Circuit with instructions to remand, in turn, to the district court. The plaintiffs ask us also to remand this case to the district court. We decline to do so. In CSS, the Supreme Court noted that plaintiffs had alleged that members of the certified class actually tried to file applications for legalization and had been turned away—arguably pursuant to an INS Manual entry dealing with the subject. The Court thought this practice, described as “front-desking,” if
Our case is quite different. Here there was no class certified. Plaintiffs sought class certification too late—after the district court‘s order had been appealed to this court, thus depriving the district court of jurisdiction—and, therefore, no class was ever certified. Hence, we only have five alien-plaintiffs and the organizations before us—not a class. Our dissenting colleague would nevertheless remand to the district judge to permit him now to certify a class if a search of the files of the special masters, appointed by the district judge to identify aliens who were discouraged from filing applications, revealed any that were front-desked.9 At oral argument four years ago, appellants conceded that there were none, Ayuda, 880 F.2d at 1342, and we are confident that counsel would have brought any such to our attention long ago since we had indicated that those persons would be entitled to relief. It is certainly not up to the court to search for a plaintiff upon whom to append a class certification, let alone to do so five years after the case was brought and after judgment in the case.
None of the named five plaintiffs alleged front-desking. Four never attempted to apply, and the fifth had an application accepted for processing. CSS makes clear, moreover, that the four organizational plaintiffs lack standing. The district court, it will be recalled, had determined otherwise; indeed, all of its orders, including the appointment of special masters to inquire into the situation of various aliens, were predicated on that determination. We had reserved the question of organizational standing, but it is now quite clear, in light of the CSS analysis, that the organizations did not have standing to raise their claims challenging INS policies or regulations that interpreted aliens’ rights to legalization under IRCA. That is so because, as the Court reasoned, these claims may only be brought in court by individual aliens after the INS’ statutory interpretation is applied to them, their application for legalization is denied, and they are subject to deportation orders. CSS, 509 U.S. at 61, 113 S.Ct. at 2497. It follows then, that an organizational plaintiff could not undermine the statutory scheme by suing to challenge “generic” INS policies or statutory interpretations that bear on an alien‘s right to legalization. See Block v. Community Nutrition Institute, 467 U.S. 340, 345-48, 104 S.Ct. 2450, 2453-55, 81 L.Ed.2d 270 (1984). That means that the district judge should have dismissed the organizational plaintiffs from the suit.10
Nor do we perceive that the Supreme Court‘s treatment of the front-desking issue is any different than ours. We had similarly
Since there is not the slightest indication that any of the five plaintiffs in our case suffered a harm that would confer limited jurisdiction on the district court (such as front-desking), we see no justification in continuing this lawsuit.11
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As we said over four years ago, what plaintiffs sought “was an advisory ruling on a potential theory for amnesty.” Ayuda, 880 F.2d at 1346. They wished to evade IRCA‘s administrative and judicial review scheme by going directly to the district court. The Supreme Court has now definitively determined that if plaintiffs wished to take advantage of the amnesty program, they were obliged to follow IRCA‘s procedures. For the foregoing reasons, we reiterate that the district court lacked jurisdiction to issue Supplemental Order V and to order the INS to grant work authorization to aliens who failed to file applications before the May 4, 1988 deadline. These orders are therefore vacated.
WALD, Circuit Judge, dissenting:
I agree with my colleagues that there is little left to this case after four years of appeals and two remands from the Supreme Court. Most of the 4000 illegal aliens who allegedly did not register for amnesty by the May 4, 1988 deadline because of misinformation received from INS agents or QDEs about their eligibility under the challenged INS “known to the government” regulations are now consigned to deportation or indefinite continuation of their shadow status. In Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (“CSS“), the Supreme Court decided that, except in a very minute category of cases, an undocumented alien‘s challenge to an INS regulation barring her eligibility for amnesty was not “ripe” unless she had tried unsuccessfully to apply for legalization and been turned away (even though the alien could not contest denial of legalization except by surrendering for deportation). The only cracks the Court left open for a front-end challenge were for those aliens who had been “front-desked,” i.e., whose applications had been turned away without filing by lower-level INS officials, or for those aliens who might come within the confines of the Court‘s footnote 28:
Although we think it unlikely, we cannot rule out the possibility that further facts would allow class members who were not front-desked to demonstrate that the front-desking policy was nevertheless a
substantial cause of their failure not [sic] to apply, so that they can be said to have had the [challenged regulations] applied to them in a sufficiently concrete manner to satisfy ripeness concerns.
Id., 509 U.S. at 66 n. 28, 113 S.Ct. at 2500 n. 28. The Court remanded to the trial court to identify any such eligible persons; other courts whose prior rulings, like ours, were vacated in light of CSS, have done likewise. See Perales v. Thornburgh, 4 F.3d 99, 100 (2d Cir.1993); League of United Latin American Citizens v. INS, 999 F.2d 1362 (9th Cir.1993); Catholic Social Services, Inc. v. Reno, 996 F.2d 221, 222 (9th Cir.1993).
My colleagues decline to follow that route, however, and it is from that determination that I dissent. I do not believe that on the extensive record before us, now spanning over five years, we can “rule out the possibility that further facts would allow class members who were not front-desked to demonstrate that the front-desking policy was nevertheless a substantial cause of their failure not [sic] to apply,” or the possibility that some of the thousands of aliens whose claims have been investigated by masters appointed by the district court were not actually front-desked. I would, therefore, remand for the identification process contemplated by the Court in CSS.
The objections my colleagues raise to pursuing that route are not persuasive. They say first that we have no certified class here as was the case in CSS and some of the other post-CSS remands; and further, since the original five plaintiffs in the Ayuda litigation and the organizational plaintiffs would not meet the CSS ripeness analysis so as to be eligible to continue the case, no one else can possibly maintain it.1 The tortured procedural history of this action, however, does not lend itself to any such neat “over and out” solution. When Judge Sporkin made his de
Moreover, as the majority notes, a class certification motion and a motion to add new plaintiffs as representatives of the class have been pending for several years. These motions have never been acted on by the district court. After Judge Sporkin announced his intention to retain jurisdiction over the case to formulate relief for individuals misled or prevented from applying by the INS (or QDEs), the original plaintiffs sought to amend their complaint to certify a class of persons who “failed to apply for legalization prior to May 5, 1988 because they were dissuaded or misled . . . [by] the INS or its agents . . . or because they were not allowed to file or were dissuaded from filing an application by INS or its agents. . . .” Plaintiffs’ First Amended Complaint at 17-18. This original class certification motion was filed in September 1988 and renewed two years later. Judge Sporkin held the motion in abeyance pending completion of the masters’ work. See 700 F.Supp. at 52.
A search of the masters’ files would reveal whether any of the putative class members meets the new CSS ripeness test.3 If such persons exist, it should not be too late for the court to rule on a certification motion to allow the action to continue.
My colleagues also argue that our earlier opinions acknowledged that if any aliens claiming they were “known to the government” because of failure to file required reports under
In addition, the test for eligibility to sue touched upon in earlier opinions was not precisely the one adopted by the CSS Court, years later. The majority found no evidence of the INS “literally closing the INS’ office doors in aliens’ faces.” Ayuda, 948 F.2d at 751. The Supreme Court was a tad more generous, acknowledging the possibility that if the “front-desking policy was nevertheless a substantial cause of their failure not [sic] to apply, aliens might be eligible.” CSS, 509 U.S. at 66 n. 28, 113 S.Ct. at 2500 n. 28. This new and somewhat broader test would now be the central focal point of the standing/ripeness inquiry in any continued litigation. It certainly was not so in the earlier rounds.
There is no doubt that this is the last act of the Ayuda drama. Given the narrowness of the exception left open by the Supreme Court and the ready availability of information as to whether any aliens within this exception exist, together with the pendency of a class certification motion for over five years that would include such persons and a motion to add new plaintiffs as class representatives, a remand to allow the plaintiffs to renew a class certification motion for persons registered with the masters who meet the CSS ripeness criteria seems the safe, humane, and legally correct thing to do.
I respectfully dissent from the panel‘s refusal to remand for that limited purpose.