Ayuda, Inc. v. Richard Thornburgh, Individually and as Attorney General of the United States
919 F.2d 153
D.C. Cir.
1990
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*1 153 alone, standing has never been sufficient to ORDER sustain a denial of ... First Amendment PER CURIAM. rights.... fact that speech [t]he stir listeners to disagree perhaps even to Upon appellants’ consideration of motion disagree violently not by that fact —does for stay Supplemental XIV, Order permit regulation.”) (internal alone quota- response thereto, and the reply, and the omitted). permit To a two-thirds cur- parties’ memoranda and the district court’s tailment of a parade traditional route on Memorandum Opinion responding to cer- that showing alone invites similar action tain questions posed by it is against future paraders controversial of all that the motion stay Sup Ordered views. plemental Order granted. XÍV be Appel reprehensible However provocative lants have demonstrated satisfaction of the particular the view of groups may seem to standards necessary stay pending ap many us, or most of right parade peal. See Washington Metropolitan Area peaceably remains important most bul- Transit Commission v. Holiday Tours, wark of a democratic against Inc., 841, F.2d 559 (D.C.Cir.1977); 843 D.C. tyranny. If eleven blocks can be cut to Circuit Handbook Practice and Inter four anticipated because of public reaction nal (1987). Procedures 38-39 In light of group, one four blocks can be cut to one previous Court’s ruling that the dis because of greater an even antipathy to the trict court lacked jurisdiction to review le (and group next the acknowledgedly heavy galization determinations under the Immi pressures police), on local and then the gration Reform and Control parade Act of is suddenly begins. over before it Ayuda, see with the (and F.2d the Unit- States) (D.C.Cir.1989), ed that there filed, is not cert. justi- sufficient (U.S. fication for U.S.L.W. 1989) (No. severe Dec. curtailment of the 89-1018), traditional imposed here, appellants route have and see no demonstrated reason to strong overrule the district court’s likelihood of judg- success on the merits ment on the record before us. of their appeal, were unable

to make this requisite same showing neces sary to obtain injunctive relief in the district court. See Virginia Petrole um FPC, Jobbers Association v. (D.C.Cir.1958). AYUDA, INC., al., et HENDERSON, Judge, Circuit concurring: THORNBURGH,

Richard individually I write separately to express Attorney my General view in light States, al., of this court’s holding in Ayu United Appellants. et da, Inc. v. Thornburgh, we should address No. 90-5293. sponte sua question and United States Court of Appeals, vacate Supplemental Order unsup XIV as District of Columbia Circuit. ported by subject-matter jurisdiction. See Nov. Operators Amusement & Music Ass’n v.

Copyright Tribunal, Royalty 636 F.2d 531 (D.C.Cir.1980), denied, cert. 450 U.S. WALD,* Before S.Ct. L.Ed.2d Judge, Chief In HENDERSON,** EDWARDS and the absence of complete relief, such Circuit how Judges. ever, I concur in granting stay. * ** Judge Chief part Wald Judge concurs dissents Henderson granting concurs in order part granting stay, from the order stay, for the stated accompany- reasons reasons accompanying opinion. stated ing opinion.

154 power has the hierarchy judicial jurisdic- our federal theory of interim

The dissent’s the sur- Ayuda relief to ensure holding provide of the clear ignores tion precedent of of the alien mandatory coming effect months in the and vival anxiously Association Civilian case, See this circuit. are who of Chapter v. Technicians, Air Montana ruling that will awaiting Supreme a Court 172, (D.C.Cir.1985) FLRA, 176 able to they be whether will determine of stare principle (“we are bound under the legalization claims for press their of one decision by a recent ‘abide decisis to Act of and Control Reform Immigration panel unless this court panel of (“IRCA”), 1255a. 8 U.S.C. en banc opinion the court withdrawn troubling issue sufficiently difficult ”) Brewster v. (quoting it’ has overruled controlling can find that neither side Revenue, 607 Internal Commissioner of must cer- And all sides cite. precedent to (D.C.Cir.1979)). Stare de- F.2d that immi- tainly feel some discomfort and, at Ayuda that we follow requires cisis court to be by the district grants, found injunc- minimum, court’s stay the district petition whose eligible legalization, and tion. overturning ruling from a court difference, dissent no It makes applying to one order court one district Ayuda was that mandate suggests, awaiting group presently subset appellees’ disposition stayed pending Court,1 left Supreme decision Ayuda Once certiorari. interim relief. no recourse the law of it became opinion was released 4,000 aliens, numbering between These merely mandate Stay of the this circuit. re- 6,000 sought interim have persons, juris- to the district delayed return in order sur- lief from the exer- 265 claims diction over Supreme decides Court vive until the them;1 it did not duty to dismiss cise of They testi- introduced jurisdictional issue. duty ours—to district court’s affect the —or showing that mony the district court before parties Ayuda set forth in law apply the go likely will among their numbers appeal. in the not involved if are not shelter hungry or without another circuit has it relevant Nor is permits temporary work provided with ques- jurisdictional differently on ruled Immigration currently denied them the States the United tion or (“INS”) per- Service and Naturalization — ques- on granted certiorari Court routinely given mits, incidentally, that are is reversed and until tion.2 Unless proceedings deportation have to aliens who States by the United or overruled aliens, be- These against them. pending banc, Ayuda by this court en Court or sought in the form they have cause circuit and no of this the law remains injunction declaratory judgment and hardship the suf- amount of deportation in the context rather than confer consequence can fer as a struggle to currently must proceedings, court. on the district pending permits work without such survive concurring in Judge, WALD, Chief juris- Court’s decision dissenting part: part and court, finding The district dictional issue. intolerable, that those ruled this situation stay poses a difficult This motion undergone eligi- have who who, alien claimants anyone, if within issue: Nelson, Center, Refugee Cleveland, 2. See Haitian v. Federal Power City Ohio 1. (D.C.Cir.1977) (11th Cir.1989), granted sub nom. Comm'n, cert. F.2d 1555 F.2d 346-48 Center, Inc., rule, appel- Refugee a federal (the McNary under which v. Haitian mandate binding (1990). law -, decision establishes late court’s 110 L.Ed.2d 110 S.Ct. litigation, spe- is a in the same the lower of the case doctrine application of the law cific Indeed, already argument been held oral duty court to follow expressing the lower be controlling decision can case and a issues decid- on those higher decision court’s expected few months. within appeal). ed on bility screening for permanent relief should Passenger Corp., (D.C. F.2d provided be with temporary permits. work Cir.), denied, cert. 488 U.S. 129, 102 L.Ed.2d 102 panel’s sole staying reason for district court’s order is that this court has *3 government The argues that the court of ruled—in appeal one parts from of one appeals decision in Ayuda, finding juris- no order governing portion one of the aliens diction grant to relief in the case of the involved in this case—that the appealed district court order concerning the 265 claim- § had jurisdiction no grant to except ants, relief in infects all prior of the orders concern- deportation individual proceedings. ing See the 265 claimants. Ayuda, non-§ the Ayuda, Inc. v. Thornburgh, 880 F.2d government says, is the “law of the cir- (D.C.Cir.1989),petition cert. pending, cuit” and no district judge may go against (No. 89-1018) U.S.L.W. 3451 {“Ayuda”). any it in way. Although that must certain- We are asked to infer from ruling ly be true as to any future cases while the the thereby lost jurisdic all decision extant, remains question preserve tion to quo status as to all of whether it means that a district court is the other aliens rights whose were adjudi barred in all circumstances taking from in prior cated appealed orders never by the action supplement to enforce or decisions it government to this court. I do not find has already rendered that have become fi- logic compelling. nal because the government has neither taken appeal an nor initiated motion to The district court’s initial declaratory issue, vacate. The in words, other judgment plaintiffs, in favor of and all but whether a district court must in all cases one of its supplemental orders pro- sit and see its final orders undermined tracted case, and wide-ranging retain the or outright violated because, in separate force of law at point. noted, just As appeal, the court of appeals has ruled ain government appealed in only Ayuda way that could logically be applied prior to parts of one order of the district cases. Certainly the answer easy is not so affecting only (the one group of aliens my colleagues would suggest in their claimants). Moreover, govern- § laconic order. ment affirmatively acquiesced in the dis- trict court’s basic holding rejecting the It is important also that, to note due to INS’ interpretation “known to the pendency of appellees’ petition for cer- provision Government” IRCA, 8 U.S.C. tiorari in Ayuda, no mandate issued 1255a(a)(2)(B).2 Although taking § from this court based on that decision. See appeal divests the district juris- 41(b). Fed.R.App.P. jurisdictional The is places diction and it in the court appeals, sue in decided Ayuda is nonetheless it does so with respect to those as- squarely before Supreme Court, which pects of the case involved in appeal. has granted in certiorari Haitian Refugee Griggs v. Cir.1989), See Provident Consumer Nelson, Dis- Center (11th v. 872 F.2d 1555 Co., 56, 58, count U.S. 103 S.Ct. granted rt. sub McNary nom. v. ce Thus, L.Ed.2d 225 Refugee Center, Haitian -, respect to those directly claimants not in- (1990), 110 L.Ed.2d 265 in volved Ayuda appeal, I believe the case that raises the identical issue.3 If district court presently retains upheld in McNary, Court grant “further relief” under the Declara- Ayuda’s jurisdictional holding (al might tory Judgment Act, 28 U.S.C. 2202. though even this is not altogether clear) Horn & Hardart implicate Co. National Rail of the district court Ayuda majority 2. acknowledged as much. precisely limited its to the See 880 Ayuda, F.2d at 1328. See also Supplemental V”). vacation Order (D.C.Cir.1989) (Ruth 880 F.2d 1325 J., Ginsburg, B. dissenting from of re- denial 3. The apparently holding Court hearing banc) (noting en recogni- "the court’s abeyance, in certiorari at tion that acquiesced pri- request government, until reaches rulings of the district court McNary. [and] ... decision enjoy the benefits perish before relief with re- affirmative further grant claimants, victory. possible spect to non-§ cautiously court has the district this reason me question for a somewhat harder relief granting permanent from refrained district court has whether jurisdic- while claimants any of the claim relief to the provide the Su- pending before question is tional that it does I conclude ants, on balance but But, current given the ab- preme Court. given any interim and that the court of any mandate from sence of from must come therefore these word on the the final pending above, a district court As noted this court. issue *4 aspects over all normally jurisdiction loses discretionary exercise of re- Court, this Ordinarily, appealed. that of case that the district not mean does straint only court then, be the court would this provide those jurisdiction to lacks court relief to provide interim jurisdiction to with directly involved claimants not given that no mandate the § is it concludes relief that the with to pursuant this court yet issued until them to survive to allow essential technically Supreme Court the Ayuda and acts. Supreme Court The the time as such for the certiorari. yet act on to authority to de- traditional court’s district district depriving the The rule controlling the jurisdiction termine its —and however, is, subject to a num jurisdiction if unchal- that determination effect of A court retains exceptions. district of ber remains unim- lenged appeal presently on issue example, to orders jurisdiction, Until these claimants. paired as to modifying, staying, certain circumstances jur- underlying rules Supreme Court filing injunctions, to direct granting or includes, issue, authority that isdictional bonds, to issue orders supersedeas and of the status power to maintain minimally, the grant appeal, the affecting the record on Federal Wright, The Law quo. C. of Fed. bail, matters. See ing and similar of 1983). (4th ed. Courts § 62(c). 9, 10, 11; 7, 8, Fed.R.Civ.P. R.App.P. controlling authori- any lack of Given excep established Although none of these direction, I opposite in the ty pointing case,4 several this directly applies in of court the benefit district give the would rule, being judge- held that the courts have authority to case as its to any doubt in merely pru statutory, is than made rather ensuring quo by that status preserve the departed from should be where dential and nonappealed affected the claimants economy dic judicial of so considerations until the Su- to survive are able orders Pensiero, See, e.g., Mary Ann tate. wrong I and if am acts. Even preme Court Cir.1988) (3d (“[The F.2d 90 Lingle, 847 exist, I believe the authority not does such designed prevent the confusion rule] has that itself appeals court if would result both inefficiency that stay the “law may temper or and that we court court the district preserve in order of the circuit” issues simulta adjudicating the same were be validated that law can quo status until doctrine, rule prudential As a neously. It by the Court. rejected or so applied when to do would not be should system of and irrational a cruel would be achieving judicial purpose of defeat lodge that would justice indeed economy.”). consequently and that power somewhere however, Ultimately, with affected this court’s those permit would does court district challenge to which has ruling Ayuda, provide interim relief Court, lack argued in the already been during pendency injunction 62(c) grant an provides arguable that Fed.R.Civ.P. to bond or otherwise appeal upon such terms as with district action re- court’s security proper pro- as it rule considers That spect 265 claimants. § to the Fed.R.App.P. party." rights adverse appeal is taken from "When an vides follows: Cf. 8(a). posture case of this makes unusual granting, The interlocutory dis- final or an however, "ap- doubtful, "pend[ingj” on that it injunction, court in denying solving, or meaning rule. restore, of this peal” the intended modify, within may suspend, its discretion government’s claimants. The ap- presided over the case for more than peal in Ayuda divested the district court of years. two immigrant claimants won jurisdiction over those placed claimants and rounds, first several only to have one jurisdiction in and it would take segregated portion of their ranks lose one more superior than the factfinding appeal on grounds relief-granting capacities the district court of appeals. That ruling, in conflict court situation justify departing with the Eleventh Circuit’s decision in from the traditional rule that the district McNary, is currently under active consider- court may not act further in the absence of ation Court. But winter is a mandate from this finally court disposing here, almost and without temporary work of the appeal. Until the Supreme Court permits many of the aliens face severe grants either in or this certiorari hardship. I believe it upon incumbent our issues a mandate based on the Ayu- judicial system identify proper da decision, this court is the only court that source stopgap relief in this situation may provide interim relief to the and to act dispatch upon request claimants, and these pur- claimants should for such relief. hope that at *5 sue such relief in this court.5 point system our does this.

I deny would therefore the motion for

stay as 265 claimants6 and non-§

grant claimants, as to the indicat-

ing that the latter apply could for interim

relief to this court. The case has

been a long and not yet completed trek for

these aliens and for the district judge who

5. Because I conclude that the grounds non-§ 265 claim- were afforded an unrea- ants survive the threshold chal- sonably period short applica- in which to file lenge by government, made briefly I turn amnesty; Pangilinan tions for also does not specified analysis the 7(h)(1) in D.C. Circuit Rule explicitly concept rule out the of “constructive stay or order of the filing" statutory within the by deadline those district court. I believe that the attempted who, aliens who to comply but public failed demonstrate that it through own, no fault of prevented their were interest irreparably would be harmed if the mo- doing from so INS action. stay tion for were denied as to the non-§ 265 Two directly courts confronted with this issue sharp claimants —in contrast with the undenia- have held that Pangilinan preclude does not ble harm that will befall those claimants who INS, relief. See Zambrano Civ. No. S-88-455 cannot survive without work authorizations if a EJG, (E.D.Cal. opinion 1988) Aug. at 21 (“ap- stay granted. plicants discouraged who were applying government’s As to argument that it is allegedly illegal regulations reliance on [INS] likely to succeed on the underlying merits in have been denied application the twelve month action, Pangilinan, do not that INS v. period Congress intended’’); League United (1988), 100 L.Ed.2d 882 INS, Latin American No. 87-4757- Citizens necessarily deprives the district court of author WDK, (C.D.Cal. opinion 15, 1988) Aug. at 8 ity permanent to order relief to the affected (“[w]hat ], Pangilinan [after available how- they aliens timely applica because failed file ever, enjoining ... is an order the INS from Pangilinan for naturalization. held that denying [plaintiffs] opportunity apply estoppel equitable neither nor the adjustment grounds of status on timeliness appropriate courts to craft gives remedies feder when the untimeliness resulted from the INS’ al courts the to order that someone be policy”). erroneous appellants I therefore conclude that made a citizen United States. 486 U.S. at have not their met burden of However, demon- 108 S.Ct. at 2215-16. as dis strating likely to succeed on cussed In re 869 F.2d (D.C.Cir. merits. 1989), 1512-17 presented the situation significantly this case differ from that would, however, 6. presented scope limit the Pangilinan. inter- As noted in Thorn- provided burgh, im relief the district court to “[t]he those specifically form disapproved by Pangilinan non-§ 265 claimants who have survived eli- Court was the gibility screening 'power process lower courts’ asserted make someone who make ” showings citizen of the United States.' inability individual at to meet Pangilinan food, shelter, pro does foreclose a due minimal needs of and medical challenge cess to the actions of INS care.