919 F.2d 153 | D.C. Cir. | 1990
Concurrence Opinion
concurring:
I write separately to express my view that in light of this court’s holding in Ayuda, Inc. v. Thornburgh, we should address sua sponte the jurisdictional question and vacate Supplemental Order XIV as unsupported by subject-matter jurisdiction. See Amusement & Music Operators Ass’n v. Copyright Royalty Tribunal, 636 F.2d 531 (D.C.Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1352, 67 L.Ed.2d 336 (1981). In the absence of such complete relief, however, I concur in the granting of a stay.
It makes no difference, as the dissent suggests, that the mandate in Ayuda was stayed pending disposition of the appellees’ petition for certiorari. Once the Ayuda opinion was released it became the law of this circuit. Stay of the mandate merely delayed return to the district court of jurisdiction over the § 265 claims and the exercise of its duty to dismiss them;
Nor is it relevant that another circuit has ruled differently on the jurisdictional question or that the United States Supreme Court has granted certiorari on the question.
. See City of Cleveland, Ohio v. Federal Power Comm'n, 561 F.2d 344, 346-48 (D.C.Cir.1977) (the mandate rule, under which a federal appellate court’s decision establishes the law binding the lower court in the same litigation, is a specific application of the law of the case doctrine expressing the duty of a lower court to follow the higher court’s decision on those issues decided on appeal).
. See Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555 (11th Cir.1989), cert. granted sub nom. McNary v. Haitian Refugee Center, Inc., — U.S. -, 110 S.Ct. 2584, 110 L.Ed.2d 265 (1990).
Concurrence in Part
concurring in part and dissenting in part:
This motion for stay poses a difficult jurisdictional issue: who, if anyone, within our federal judicial hierarchy has the power to provide interim relief to ensure the survival in the coming months of the alien claimants in this case, who are anxiously awaiting a Supreme Court ruling that will determine whether they will be able to press their claims for legalization under the Immigration Reform and Control Act of 1986 (“IRCA”), 8 U.S.C. § 1255a. It is a sufficiently difficult and troubling issue that neither side can find a controlling precedent to cite. And all sides must certainly feel some discomfort that immigrants, found by the district court to be eligible for legalization, and whose petition from a court of appeals ruling overturning one district court order applying to one subset of the group is presently awaiting decision by the Supreme Court,
These aliens, numbering between 4,000 and 6,000 persons, have sought interim relief from the district court in order to survive until the Supreme Court decides the jurisdictional issue. They introduced testimony before the district court showing that some among their numbers will likely go hungry or without shelter if they are not provided with the temporary work permits currently denied them by the Immigration and Naturalization Service (“INS”) — permits, incidentally, that are routinely given to aliens who have deportation proceedings pending against them. These aliens, because they have sought relief in the form of declaratory judgment and injunction rather than in the context of deportation proceedings, currently must struggle to survive without such work permits pending the Supreme Court’s decision on the jurisdictional issue. The district court, finding this situation intolerable, ruled that those alien claimants who have undergone eligi
The panel’s sole reason for staying the district court’s order is that this court has ruled — in one appeal from parts of one order governing one portion of the aliens involved in this case — that the district court had no jurisdiction to grant relief except in individual deportation proceedings. See Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1989), petition for cert. pending, 58 U.S.L.W. 3451 (No. 89-1018) {“Ayuda”). We are asked to infer from that ruling that the district court thereby lost all jurisdiction to preserve the status quo as to all of the other aliens whose rights were adjudicated in prior orders never appealed by the government to this court. I do not find this logic compelling.
The district court’s initial declaratory judgment in favor of plaintiffs, and all but one of its supplemental orders in this protracted and wide-ranging case, retain the force of law at this point. As just noted, the government appealed in Ayuda only parts of one order of the district court, affecting only one group of aliens (the § 265 claimants). Moreover, the government affirmatively acquiesced in the district court’s basic holding rejecting the INS’ interpretation of the “known to the Government” provision of IRCA, 8 U.S.C. § 1255a(a)(2)(B).
The government argues that the court of appeals decision in Ayuda, finding no jurisdiction to grant relief in the case of the appealed order concerning the § 265 claimants, infects all of the prior orders concerning the non-§ 265 claimants. Ayuda, the government says, is the “law of the circuit” and no district judge may go against it in any way. Although that must certainly be true as to any future cases while the Ayuda decision remains extant, I question whether it means that a district court is barred in all circumstances from taking action to enforce or supplement decisions it has already rendered that have become final because the government has neither taken an appeal nor initiated a motion to vacate. The issue, in other words, is whether a district court must in all cases sit by and see its final orders undermined or violated outright because, in a separate appeal, the court of appeals has ruled in a way that could logically be applied to prior cases. Certainly the answer is not so easy as my colleagues would suggest in their laconic order.
It is also important to note that, due to the pendency of appellees’ petition for cer-tiorari in Ayuda, no mandate has issued from this court based on that decision. See Fed.R.App.P. 41(b). The jurisdictional issue decided in Ayuda is nonetheless squarely before the Supreme Court, which has granted certiorari in Haitian Refugee Center v. Nelson, 872 F.2d 1555 (11th Cir.1989), cert. granted sub nom. McNary v. Haitian Refugee Center, — U.S. -, 110 S.Ct. 2584, 110 L.Ed.2d 265 (1990), a case that raises the identical issue.
Given the lack of any controlling authority pointing in the opposite direction, I would give the district court the benefit of any doubt in this case as to its authority to preserve the status quo by ensuring that the claimants affected by the nonappealed orders are able to survive until the Supreme Court acts. Even if I am wrong and such authority does not exist, I believe the court of appeals itself has that authority and that we may temper or stay the “law of the circuit” in order to preserve the status quo until that law can be validated or rejected by the Supreme Court. It would be a cruel and irrational system of justice indeed that would not lodge that power somewhere and that consequently would permit those affected by this court’s ruling in Ayuda, a challenge to which has already been argued in the Supreme Court, to perish before they can enjoy the benefits of a possible victory.
It is a somewhat harder question for me whether the district court has jurisdiction to provide interim relief to the § 265 claimants, but on balance I conclude that it does not and that any interim relief given to these claimants therefore must come from this court. As noted above, a district court normally loses jurisdiction over all aspects of a case that are appealed. Ordinarily, then, this court would be the only court with jurisdiction to provide interim relief to the § 265 claimants given that no mandate has yet issued from this court pursuant to Ayuda and the Supreme Court technically has yet to act on the petition for certiorari. The rule depriving the district court of jurisdiction is, however, subject to a number of exceptions. A district court retains jurisdiction, for example, to issue orders in certain circumstances staying, modifying, or granting injunctions, to direct the filing of supersedeas bonds, and to issue orders affecting the record on appeal, the granting of bail, and similar matters. See Fed.R.App.P. 7, 8, 9, 10, 11; Fed.R.Civ.P. 62(c). Although none of these established exceptions directly applies in this case,
Ultimately, however, I agree with the government that the district court does lack jurisdiction to provide interim relief to
I would therefore deny the motion for stay as to the non-§ 265 claimants
. Indeed, oral argument has already been held in the controlling case and a decision can be expected within a few months.
. The Ayuda majority acknowledged as much. See 880 F.2d at 1328. See also Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1989) (Ruth B. Ginsburg, J., dissenting from denial of rehearing en banc) (noting "the court’s recognition that the government has acquiesced in pri- or rulings of the district court ... [and] the court has precisely limited its judgment to the vacation of Supplemental Order V”).
. The Supreme Court apparently is holding the petition for certiorari in Ayuda in abeyance, at the request of the government, until it reaches a decision in McNary.
. It is arguable that Fed.R.Civ.P. 62(c) provides authority for the district court’s action with respect to the § 265 claimants. That rule provides as follows: "When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party." Cf. Fed.R.App.P. 8(a). The unusual posture of this case makes it doubtful, however, that it is "pend[ingj” on "appeal” within the intended meaning of this rule.
. Because I conclude that the non-§ 265 claimants survive the threshold jurisdictional challenge made by the government, I turn briefly to the analysis specified in D.C. Circuit Rule 7(h)(1) for a stay of a judgment or order of the district court. I believe that the government has failed to demonstrate that it or the public interest would be irreparably harmed if the motion for stay were denied as to the non-§ 265 claimants — in sharp contrast with the undeniable harm that will befall those claimants who cannot survive without work authorizations if a stay is granted.
As to the government’s argument that it is likely to succeed on the merits in the underlying action, I do not agree that INS v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988), necessarily deprives the district court of authority to order permanent relief to the affected aliens because they failed to file timely applications for naturalization. Pangilinan held that neither estoppel nor the equitable authority of courts to craft appropriate remedies gives federal courts the authority to order that someone be made a citizen of the United States. 486 U.S. at 883, 108 S.Ct. at 2215-16. However, as discussed in In re Thornburgh, 869 F.2d 1503, 1512-17 (D.C.Cir.1989), the situation presented in this case may significantly differ from that presented in Pangilinan. As noted in Thorn-burgh, “[t]he only form of relief specifically disapproved by the Pangilinan Court was the lower courts’ asserted 'power to make someone a citizen of the United States.' ” 869 F.2d at 1517. Pangilinan does not foreclose a due process challenge to the actions of the INS on the grounds that appellees were afforded an unreasonably short period in which to file applications for amnesty; Pangilinan also does not explicitly rule out the concept of “constructive filing" within the statutory deadline by those aliens who attempted to comply but who, through no fault of their own, were prevented from doing so by INS action.
Two courts directly confronted with this issue have held that Pangilinan does not preclude relief. See Zambrano v. INS, Civ. No. S-88-455 EJG, opinion at 21 (E.D.Cal. Aug. 9, 1988) (“applicants who were discouraged from applying by reliance on allegedly illegal [INS] regulations have been denied the twelve month application period Congress intended’’); League of United Latin American Citizens v. INS, No. 87-4757-WDK, opinion at 8 (C.D.Cal. Aug. 15, 1988) (“[w]hat is available [after Pangilinan ], however, ... is an order enjoining the INS from denying [plaintiffs] the opportunity to apply for an adjustment of status on timeliness grounds when the untimeliness resulted from the INS’ erroneous policy”). I therefore conclude that appellants have not met their burden of demonstrating that they are likely to succeed on the merits.
. I would, however, limit the scope of the interim relief provided by the district court to those non-§ 265 claimants who have survived the eligibility screening process and who can make individual showings of their inability to meet minimal needs of food, shelter, and medical care.
Lead Opinion
ORDER
Upon consideration of appellants’ motion for stay of Supplemental Order XIV, the response thereto, and the reply, and the parties’ memoranda and the district court’s Memorandum Opinion responding to certain questions posed by this court, it is
Ordered that the motion for stay of Supplemental Order XÍV be granted. Appellants have demonstrated satisfaction of the standards necessary for a stay pending appeal. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977); D.C. Circuit Handbook of Practice and Internal Procedures 38-39 (1987). In light of this Court’s previous ruling that the district court lacked jurisdiction to review legalization determinations under the Immigration Reform and Control Act of 1986, see Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1989), petition for cert. filed, 58 U.S.L.W. 3451 (U.S. Dec. 27, 1989) (No. 89-1018), appellants have demonstrated a strong likelihood of success on the merits of their appeal, and appellees were unable to make this same requisite showing necessary to obtain interim injunctive relief in the district court. See Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921 (D.C.Cir.1958).
