E.O.H.C.; M.S.H.S., a minor child, Appellants v. SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; COMMISSIONER UNITED STATES CUSTOMS & BORDER PROTECTION; DIRECTOR UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT; FIELD OFFICE DIRECTOR PHILADELPHIA UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT
No. 19-2927
United States Court of Appeals for the Third Circuit
February 13, 2020
Argued: November 12, 2019
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
PRECEDENTIAL
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5:19-cv-03204) District Judge: Honorable Joshua D. Wolson
Anthony Vale
Michael S. DePrince [ARGUED]
Pepper Hamilton
3000 Two Logan Square
Philadelphia, PA 19103
Tobias Barrington Wolff [ARGUED]
3501 Sansom Street
Philadelphia, PA 19104
Bridget Cambria
Cambria & Kline
532 Walnut Street
Reading, PA 19601
Amy Maldonado
Law Office of Amy Maldonado
333 Albert Avenue, Suite 610
East Lansing, MI 48823
Counsel for Appellants
Joseph H. Hunt
William C. Peachey
Erez Reuveni
Archith Ramkumar [ARGUED]
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
William M. McSwain
Veronica J. Finkelstein
Anthony St. Joseph
Paul J. Koob
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellees
BIBAS, Circuit Judge.
This case raises the age-old question: “If not now, when?” Mishnah, Pirkei Avot 1:14. For aliens who are challenging their removal from the United States, the answer is usually “later.” But not always. And not here.
Federal district courts rarely have jurisdiction to hear disputes relating to removal. That is because the Immigration and Nationality Act (INA) strips them of jurisdiction over all claims “arising from any action taken or proceeding brought to remove” aliens.
But some immigration-related claims cannot wait. When a detаined alien seeks relief that a court of appeals cannot meaningfully provide on petition for review of a final order of removal,
Appellants E.O.H.C. and M.S.H.S., his seven-year-old daughter, came from Guatemala through Mexico to the United States. The Government seeks to return them to Mexico while it decides whether to grant them asylum or instead remove them to Guatemala. They brought several claims in the District Court, challenging the Government‘s authority to return them to Mexico. The District Court dismissed all their claims for lack of subject-matter jurisdiction. We see things differently.
One claim, involving the statutory right to counsel, arises from the proceedings to remove them to Guatemala, so it can await a petition for review. But the rest of the claims challenge the Government‘s plan to return them to Mexico in the meantime. For these claims, review is now or never. So we will affirm in part and reverse and remand in part.
A. Facts
E.O.H.C. and M.S.H.S. are from Mixco, Guatemala, a city plagued by violent crime. Fleeing that violence, they traveled north through Mexico. In April 2019, they crossed into the United States and turned themselves in to U.S. Customs and Border Patrol officers. The Government began proceedings to remove them to Guatemala, setting a June hearing date in San Diego.
Ordinarily, aliens detained pending removal proceedings would be housed in the United States. But in December 2018, the Department of Homeland Security announced a new policy called the Migrant Protection Protocols. Under those Protocols, the Government now takes many aliens who cross the United States-Mexico border and returns them to Mexico while they await their immigration hearings. See Migrant Protection Protocols, U.S. Dep‘t Homeland Security (Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols; see also
Under the Protocols, the Government returned E.O.H.C. and his daughter to Mexico to await their hearing. They were left to fend for themselves in Tijuana, a dangerous and violent city. Fortunately, a local family took them in.
When he and his daughter came to San Diego for their hearing, E.O.H.C. told the immigration judge that hе did not fear going back to Guatemala. He later alleged that a Customs and Border Protection officer advised him to say this. He was not represented by counsel at the time and says that he did not understand that this was bad advice. The immigration judge denied asylum and ordered appellants removed to Guatemala. E.O.H.C. waived the right to appeal, allegedly because he feared that the Government would return them to Mexico if they pursued an appeal. After the hearing, they were transferred to an immigration detention facility in Berks County, Pennsylvania, to await removal.
B. Procedural history
While appellants were detained in Berks County, they appealed to the Board of Immigration Appeals. Before the Board, they argued that E.O.H.C.‘s appeal waiver was invalid because he had made it under duress. The Board granted them an emergency stay of removal pending appeal. But the stаy order did not make clear whether it prevented their return to Mexico or only their removal to Guatemala. And the Government flew them back to San Diego, apparently to return them to Mexico.
So appellants filed an emergency mandamus petition in the U.S. District Court for the Eastern District of Pennsylvania. The Government then brought them back to Berks County for the time being, where they remain detained today. If the Government prevails in this case, it still plans to return them to Mexico.
In their mandamus petition and preliminary-injunction motion, appellants alleged that returning them to Mexico pending their appeal to the Board would violate the law in four ways. First, they argued that the Government lacks statutory authority to apply the Protocols to them. The Protocols, they asserted, are invalid because they were adopted in violation of the Administrative Procedure Act. And even if the Protocols were valid, they added, the statutory authorization for that policy does
Second, they argued that returning them to Mexico would interfere with their relationship with their lawyer. This interference, they claimed, would violate their constitutional and statutory rights to counsel. See
Third, they argued that returning them to Mexico would violate the United States‘s treaty obligations. In particular, the Convention Against Torture forbids “return[ing] (refouler) or extradit[ing] a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, ¶ 1, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, 114. And the Refugee Convention prohibits “expel[ling] or return[ing] (’refouler‘) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on аccount of his race, religion, nationality, membership of a particular social group or political opinion.” Convention Relating to the Status of Refugees art. 33, ¶ 1, July 28, 1951, 189 U.N.T.S. 150, 176. The duty not to remove aliens to a place where they will face persecution is known as the “non-refoulement” obligation. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987).
Fourth, they argued that returning M.S.H.S., a minor, to Mexico would violate the United States‘s commitments under the 1997 Flores Settlement Agreement. See Stipulated Settlement Agreement, Flores v. Reno, No. CV-85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997) (Flores Settlement Agreement). That Agreement sets forth the “nationwide policy for the detention, release, and treatment of minors” in immigration custody. Id. ¶ 9. By its terms, “[a]ny minor who disagrees” with the Government‘s treatment of her may sue the Government to enforce her rights under the Agreement. Id. ¶ 24(B). The Agreement remains in effect today, under the continued oversight of a district judge in the Central District of California. Flores v. Barr, 934 F.3d 910, 912 (9th Cir. 2019); see Flores v. Barr, 407 F. Supp. 3d 909, 914 (C.D. Cal. 2019) (holding that August 2019 regulations have not ended the Agreement), appeal docketed, No. 19-56326 (9th Cir. Nov. 15, 2019).
After a hearing, the District Court dismissed appellants’ four claims, holding that it lacked subject-matter jurisdiction over all of them. 396 F. Supp. 3d 477, 480 (E.D. Pa. 2019). It observed that their statutory challenges to the Protocols and their right-to-counsel claims arise from their removal proceedings. Id. at 486–88. So, it reasoned, they must await a final order of removal and only then bring these claims in the court of appeals. Id.; see
On appeal, we address only these jurisdictional questions, not the merits. Whether or not the District Court had jurisdiction, we have jurisdiction under
II. THIS CASE IS NOT MOOT AND WE CAN RESOLVE IT NOW
To start off, we address two recent developments related to this case. Before we address the District Court‘s jurisdictional holdings, we must first satisfy ourselves that these developments have not mooted this appeal. See, e.g., Whiting v. Krassner, 391 F.3d 540, 544 (3d Cir. 2004). We hold that they have not and that we can resolve it now.
First, after we heard oral argument, the Board issued an opinion questioning whether E.O.H.C.‘s waiver of appellate rights was knowing and intelligent. Matter of H-C-, slip op. at 1 (B.I.A. Dec. 4, 2019). It remanded to the immigration judge for further proceedings on his and his daughter‘s asylum application. Id. at 1-2. That remand does not moot this case. The Government has stated that if appellants’ challenge to the Protocols fails, it will return them to Mexico. Whatever the posture of their proceedings before the agency, this remains a live threat unless and until the two receive asylum or are removed to Guatemala.
Second, after oral argument, appellants filed a habeas petition in the District Court, seeking release from custody. Soon after that, an immigration judge granted M.S.H.S.‘s request for bond and ordered her released to the custody of her mother, who apparently lives in the United States. But as far as we know, M.S.H.S. is still at the Berks County facility.
The District Court denied appellants’ motion for a preliminary injunction ordering the Government to release E.O.H.C. along with M.S.H.S. or give him a bond hearing. They then filed a notice of appeal in this Court, and we consolidated that appeal with this one. E.O.H.C. v. Att‘y Gen. U.S., No. 20-1163. Both appeals are now before this Court.
That newly consolidated appeal does not affect this one. The legal issues in the two appeals are different. The first one challenges the Government‘s decision to return appellants to Mexico pending a decision on their asylum application. The legal issues turn on the scope of several jurisdiction-stripping provisions in the INA and on the Flores Settlement Agreement. The second appeal, by contrast, challenges appellants’ continued detention in Berks County. It has nothing to do with Mexico or the Protocols. The legal issues there involve substantive and procedural due process and the First Amendment. Because the challenges and salient legal issues do not overlap, we need not decide the second appeal at the same time as this one. Though we consolidated the two appeals, we have decided to resolve them separately.
Plus, even if both appellants were to be released from Berks County on bond, the Government could still return them to Mexico under the Protocols. True, the Government suggests that the Protocols might not continue to apply to E.O.H.C. and that habeas relief could hamper the Government‘s ability to return appellants to Mexico. And the Government does assert that after her release on bond, the Protocols cannot apply to M.S.H.S. But in neither case does it offer a reason why the Protocols would no longer apply. So while the Government claims that habeas relief would moot all questions about the Protocols, it falls far short of satisfying the “heavy burden” it bears. See Seneca Res. Corp. v. Township of Highland, 863 F.3d 245, 254 (3d Cir. 2017).
Having assured ourselves that the controversy between the parties is still live and that the issues in this appeal are distinct from those in the second one, we will
III. THE SCOPE OF 8 U.S.C. § 1252(b)(9)
The INA limits judicial review in several ways. First, it bars challenging removal orders in district court. Instead, aliens must bring those challenges in a “petition for review filed with an appropriate court of appeals.”
District courts also lack jurisdiction to review most claims that even relate to removal. To prevent piecemeal litigation, the INA usually requires aliens to bring their claims together. In particular,
This appeal is about appellants’ interim return to Mexico, not their permanent removal to Guatemala. The District Court held that under
For
A. Now-or-never claims do not “aris[e] from any action taken or proceeding brought to remove an alien”
We start with the statutory text. The relevant “action taken” cannot be the Government‘s return of appellants to Mexico. While the сlaims here “aris[e] from” that action, the action was not taken to “remove” them from the United States. “Removal” is a term of art in immigration law that means sending an alien back permanently to his country of origin. See Zhong v. U.S. Dep‘t of Justice, 480 F.3d 104, 108 n.3 (2d Cir. 2007). Interim return to Mexico is not part of the process of removal to Guatemala. If anything, it makes removal more difficult, because the Government must first bring appellants back to the United States to continue their removal proceedings.
On the other hand, the Supreme Court has left open whether detention pending an asylum ruling counts as an “action[] taken ... to remove an alien from the United States.” See Jennings v. Rodriguez, 138 S. Ct. 830, 840 & n.2 (2018) (plurality opinion). In any event, the removal proceedings are “proceedings brought to remove” appellants from the United States to Guatemala.
In Jennings, each Justice appeared to agree that
A three-Justice plurality reasoned that
Concurring in part and in the judgment, Justice Thomas (joined by Justice Gorsuch) took a broader view of
Jennings, 138 S. Ct. at 854. So it must limit “challenge[s] to the fact of [an alien‘s] detention” to the petition-for-review process. Id. at 855 (emphasis in original). But even he acknowledged that challenges to conditions of confinement may well fall outside
Justice Breyer, writing for the three dissenters, read
The Justices largely reprised these positions in Nielsen v. Preap, 139 S. Ct. 954 (2019). Like Jennings, Preap was brought by a class of aliens challenging whether the INA authorized their detention. Id. at 960–61. A three-Justice plurality repeated the Jennings plurality‘s view that
We distill a simple principle from Jennings, Preap, and the presumptions favoring
That is why the Supreme Court has called
Some hypotheticals drive the point home. Consider a detained alien who needs hаlal or kosher food, or a diabetic who alleges that the Government is depriving him of insulin. Or take Jennings‘s example of a challenge to prolonged detention. See 138 S. Ct. at 840 (plurality opinion). Under the Government‘s reading, these aliens could get no judicial review until the Board enters their final orders of removal. That cannot be so. For one, the final order of removal may never come. Even if it does, review and relief may come too late to redress these conditions of confinement. Id.; see McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 484 (1991) (holding that the INA did not strip jurisdiction over certain claims because otherwise “meaningful judicial review ... would be foreclosed“).
The now-or-never principle governs here too. Although appellants must await a final order of removal to challenge their removal to Guatemala,
To be clear, we do not decide whethеr or when Congress can strip jurisdiction. See Osorio-Martinez v. Att‘y Gen. U.S., 893 F.3d 153, 166 (3d Cir. 2018). We are simply applying the usual presumptions favoring judicial review in reading the law that Congress has passed. Even though this dispute may flow from an “action taken or proceeding brought to remove an alien,” now-or-never challenges like most of the ones here do not “aris[e] from” that action or proceeding. Following Jennings and Preap, we will not read
B. Section 1252(b)(9) does not bar review of the Protocols claim, the nonrefoulement claim, or the Flores claim
Appellants claim that the Government lacks statutory authority to apply the Protocols to them and return them to Mexico. Under our reading of
The same logic explains why
The Government asks us to reach the merits of the Protocols claim and hold that they are indeed authorized by statute. We leave that question to the District Court in the first instance. On remand, it should consider whether the Protocols may be applied to arriving aliеns who are deemed inadmissible because they lack valid entry documents, whether appellants fall within that class, and whether the Protocols are authorized for non-Mexicans who come to the United States through Mexico. See
C. Section 1252(b)(9) bars review of the statutory right-to-counsel claim but not the constitutional one
The now-or-never principle also resolves appellants’ right-to-counsel claims. The District Court dismissed both claims for lack of jurisdiction under
Appellants allege that returning them to Mexico would interfere with their relationship with counsel. First, they raise this claim under the Fifth Amendment‘s Due Process Clause. They argue that returning them to Mexico would hinder their ongoing access to and communication with their counsel. We do not reach the merits of that claim. See Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374–75 (3d Cir. 2003) (noting that the scope of the constitutional right to counsel in immigration proceedings is unsettled). It is enough to note that the constitutional violation, as alleged, arises not from the efforts to remove them to Guatemala, but from those to return them to Mexico in the meantime. And the constitutional harm from those matters could not be remedied after a final order of removal. Because this too is a now-or-never claim,
Second, they also allege that returning them to Mexico would violate their statutory right to counsel. But the INA‘s right-to-counsel provision grants the right only “[i]n any re- moval proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings.”
IV. THE DISTRICT COURT HAD JURISDICTION OVER THE NONREFOULEMENT CLAIM
Appellants also argue that returning them to Mexico would violаte the United States‘s nonrefoulement obligations. The District Court found that appellants had raised a nonrefoulement claim under the Convention Against Torture but not under the Refugee Convention. We disagree. Appellants have in fact preserved the nonrefoulement claim under both treaties. But because the District Court addressed only the Convention Against Torture version of the claim, we will not say anything about the Refugee Convention here. Instead, we will leave that question for the District Court on remand.
The District Court held that it lacked jurisdiction over the Convention Against Torture nonrefoulement claim under
Our review of these arguments is colored by the presumptions of reviewability discussed above. So the Government faces an uphill battle. When the Government argues that a statutory scheme “prohibit[s] all judicial review” of agency decisionmaking, it bears a “heavy burden.” Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015) (quoting Dunlop v. Bachowski, 421 U.S. 560, 567 (1975)). We look to whether “the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme.‘” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984) (quoting Ass‘n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 157 (1970)). In discerning that intent, we look at the statute‘s “text, structure, and purpose.” Elgin v. U.S. Dep‘t of Treasury, 567 U.S. 1, 10 (2012).
Here, the Government fails to overcome the presumptions of reviewability and satisfy its heavy burden. Sections
A. Section 1252(a)(4) does not bar review of Convention Against Torture challenges to the temporary return to Mexico
The District Court read
Notwithstanding any other provision of law (statutory or nonstatutory), including [
28 U.S.C. § 2241 (habeas corpus)] or any other habeas corpus provision, and [28 U.S.C. § 1361 (mandamus against federal officers) and28 U.S.C. § 1651 (All Writs Act)], a petition for review filed with an appropriate court of аppeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture ....
At first glance, this provision appears to support the Government‘s position. But a closer reading of its text, informed by the statute‘s structure, history,
1. The text of
But the text of the provision says nothing about barring Convention Against Torture claims. It says only that there is one “sole and exclusive means” of bringing these claims. The text assumes that there will be one Convention claim, not zero. We explore the reason for that wrinkle next.
2. The statutory history shows that
In response, Congress passed the REAL ID Act of 2005, which added various provisions to
There is one important difference between
As this history shows, the REAL ID Act‘s amendments to the INA were designed to stop aliens who are fighting orders of removal from getting two bites at the apple: a petition for review in the court of appeals plus a habeas petition in the district court. See Khouzam, 549 F.3d at 245–46. That is why the texts of
But that is also why the text of
Considering this history, the better reading of “any cause or claim” in
3. The statutory structure and context confirm that
In short,
B. Section 1252(a)(2)(B)(ii) does not bar review of appellants’ nonrefoulement claims
The Government also claims that a different provision of the INA bars review of the nonrefoulement claims. With one exception
The Govеrnment assumes that the Protocols are “authorized by statute.” Appellees’ Br. 44. It thus assumes that the Secretary is exercising “lawful statutory authority.” Id. at 45. But appellants “do not seek review of the Attorney General‘s exercise of discretion.” Zadvydas v. Davis, 533 U.S. 678, 688 (2001). “[R]ather, they challenge the extent of the Attorney General‘s authority under the ... statute. And the extent of that authority is not a matter of discretion.” Id. After all, no executive official has discretion to commit ultra vires acts. In any event, “[a]ny lingering doubt about the proper interpretation of
C. We need not decide whether there is a private right of action under the Convention Against Torture
The Government also argues that we should affirm the dismissal of the Convention Against Torture nonrefoulement claim on the merits. It suggests that appellants have not preserved the clаim, since they initially described it as arising under the Administrative Procedure Act. And it asserts that in any case, there is no private right of action under international agreements. But the District Court ruled only that
V. THE DISTRICT COURT HAD JURISDICTION OVER THE FLORES CLAIM TOO
Finally, we turn from the INA to a more general issue of federal subject-matter jurisdiction. Appellants argue that returning M.S.H.S. to Mexico would violate her rights under the Flores Settlement Agreement. The District Court dismissed this claim for lack of jurisdiction, holding that federal district courts other than the Central District of California may not hear claims under that Agreement. We disagree.
Paragraph 24(B) of the Flores Settlement Agreement purports to let minors enforce their rights under the agreement “in any United States District Court with jurisdiction and venue over the matter.” That is not enough. As the District Court and Government rightly note, the parties’ consent cannot create subject-matter jurisdiction where it would not otherwise exist. Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
But we hold that subject-matter jurisdiction does otherwise exist because federal common law governs. So we will reverse the District Court‘s dismissal of this claim too.
Under settled law, there is federal-question jurisdiction over the Flores claim. The Agreement is a contract. The United States, through the Attorney General, is a party to that contract. See, e.g., Monell v. Dep‘t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978) (“[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent ....“). Appellants seek to enforce the United States’ obligations under that contract. So their claim is governed by federal common law. And because federal common law is federal law, disputes governed by it “aris[e] under the ... laws ... of the United States.”
1. The Flores Settlement Agreement works as a contract here. Consent decrees are hybrids, with attributes of both contracts and injunctions. See United States v. ITT Cont‘l Baking Co., 420 U.S. 223, 236 & n.10 (1975); Holland v. N.J. Dep‘t of Corr., 246 F.3d 267, 277 (3d Cir. 2001). A party can enforce its rights under a consent decree by asking the supervising court to hold the violator in contempt. When it does, a consent decree works as an injunction. But when a party seeks not to punish but to enforce the other party‘s commitments under the agreement, the consent decree works more like a contract. See ITT Cont‘l Baking Co., 420 U.S. at 236 (“[C]onsent decrees and orders have many of the attributes of ordinary contracts.“).
Here, it works like a contract. M.S.H.S. is not asking the Court to hold the Department of Homeland Security or the Attorney Genеral in contempt for violating her rights under the Flores Settlement Agreement. Instead, she seeks only to vindicate what she claims are her contractual rights under that settlement. In other words, she claims that the Government is violating its contractual duties. As the District Judge overseeing the Flores Settlement Agreement in the Central District of California has repeatedly recognized, the settlement is a “binding contract.” See, e.g., Flores, 407 F. Supp. 3d at 931. So this suit is like any other suit alleging that the United States has breached its contractual obligations. As we explain next, these suits are governed by federal common law.
2. The United States is a party to this contract, so federal common law governs. This contract is not between private parties. It includes the United States, because the Attorney General, the Department of Justice, and the predecessor to the Department of Homeland Security entered into it. And when thе United States is a party to a contract, federal common law governs that contract. See Boyle v. United Techs. Corp., 487 U.S. 500, 504 (1988); Clearfield Tr. Co. v. United States, 318 U.S. 363, 366–67 (1943).
True, “[t]here is no federal general common law.” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (emphasis added). But federal common law does govern those pockets of law “marked by pressing interests of the United States.” Wallach v. Eaton Corp., 837 F.3d 356, 365 n.11 (3d Cir. 2016). Those pockets include cases “concerned with the rights and obligations of the United States.” Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981). The terms of a consent decree agreed to by the United States are such obligations. Thus, disputes about the meaning of consent decrees to
3. The Flores claim, governed by federal common law, supports federal-question jurisdiction. “[C]laims founded upon federal common law” arise under the laws of the United States and support federal-question jurisdiction. Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972). This is because rules fashioned by federal courts exercising their common-law-making authority “аre as fully ‘laws’ of the United States as if they had been enacted by Congress.” Id. (quoting Romero v. Int‘l Terminal Operating Co., 358 U.S. 354, 393 (1959) (Brennan, J., dissenting in part and concurring in part)). In other words, “there is no longer any question that the word ‘laws’ within the meaning of
We note that this rule applies only to consent decrees to which the United States is a party (either directly or through a federal agency). We have no occasion to consider whether federal common law governs federal consent decrees between private parties. See Evoqua Water Techs., LLC v. M.W. Watermark, LLC, 940 F.3d 222, 236–37 (6th Cir. 2019) (Bush, J., concurring).
4. The Government‘s counterarguments fail. In response, the Government argues that a breach-of-consent-decree claim “do[es] not belоng in federal court, ‘unless there is some independent basis for federal jurisdiction.‘” Appellees’ Br. 18 (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 382 (1994)). With that much we agree. Even though there was federal jurisdiction over the original dispute that led to the Flores Settlement Agreement, that fact alone does not entail continuing federal jurisdiction to enforce the Agreement. In Kokkonen, for instance, a federal district court had subject matter jurisdiction over the original dispute that led to the settlement. See 511 U.S. at 376. Yet it lacked jurisdiction to enforce that settlement agreement later. See id. at 380. So far, so good.
But the calculus changes when the United States is a party to the agreement. When the United States (or its agent) is a party, the contract claim arises under federal common law. The Government disagrees, but the cases it cites are distinguishable. Several involved only private parties. See Kokkonen, 511 U.S. at 376–77; Shaffer v. GTE N., Inc., 284 F.3d 500, 501 (3d Cir. 2002); Bowen v. Monus (In re Phar-Mor, Inc. Sec. Litig.), 172 F.3d 270, 272–73 (3d Cir. 1999). And the ones in which the United States was a party involved damages claims against the United States. In these cases, the problem was that the Tucker Act‘s limited waiver of sovereign immunity bars bringing such claims (whether or not they stem from settlement agreements) except in the Court of Federal Claims. See Munoz v. Mabus, 630 F.3d 856, 863–64 & n.5 (9th Cir. 2010); Shaffer v. Veneman, 325 F.3d 370, 372–73 (D.C. Cir. 2003); see also
Nor are we persuaded by the Government‘s argument from the text of paragraph 24(B) of the Flores Settlement Agreement. The Government argues that the word “jurisdiction” in the Agreement would be superfluous if there were already subject-matter jurisdiction in the district courts as a whole. But as the Government itself argues еlsewhere, the word “jurisdiction” in the parties’ agreement cannot create subject-matter jurisdiction on its own. By the same logic, we cannot see how jurisdiction can somehow be divested simply to avoid creating surplusage in the language of this particular contract. When deciding jurisdiction, we look not to the language of the contract but to the usual principles of Article III and
B. Questions about the proper district court go to venue, not jurisdiction
As a rule, subject-matter jurisdiction does not vary from district court to district court. Take the general federal-question jurisdiction statute,
The District Court thought that rule did not govern this case. It correctly recognized that each court “has the inherent power to enforce its own orders,” but generally lacks the power to enforce orders of other courts. 396 F. Supp. 3d at 485; see, e.g., Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958, 970 (11th Cir. 2012). But as we explained, that is not what M.S.H.S. is trying to do here. Instead, she is trying to vindicate her contractual rights under the Flores Settlement Agreement. And though the District Court worried about forum shopping, the Government took that risk when it agreed to the consent decree. The Agreement itself contemplates that its enforcement will extend to “any United States District Court with jurisdiction and venue over the matter.” Flores Settlement Agreement ¶ 24(B).
To be sure, it may well be the norm that the responsibility to enforce a consent decree lies solely with the district judge who entered it. See Local No. 93, Int‘l Ass‘n of Firefighters v. City of Cleveland, 478 U.S. 501, 523 n.13 (1986) (describing consolidated enforcement as one of the advantages of consent decrees). And cases of in rem jurisdiction may involve other jurisdictional limitations. See, e.g., Alderwoods, 682 F.3d at 969. But we see no general jurisdictional bar to another district court‘s taking part in enforcing a consent decree when one party sues to enforce its terms.
Finally, we note that the District Court raised its ground for dismissing M.S.H.S.‘s Flores claim sua sponte and that it declined
* * * * *
Immigration сlaims ordinarily proceed from an immigration judge through the Board of Immigration Appeals to the court of appeals by petition for review of a final removal order. Review by district courts is not the norm. But neither is this case. Most of the claims here cannot await a petition for review. By the time appellants are ordered removed to Guatemala (if ever), it will be too late to review their claims about their return to Mexico in the meantime. Only their statutory right-to-counsel claim will still be redressable. So the INA does not bar review of the remaining claims. And there is federal-question jurisdiction over the Flores claim. Because the United States is a party to the Flores Settlement Agreement, the contract claim is governed by federal common law and so arises under federal law. In short, the District Court has jurisdiction over most of the claims. We will thus affirm the dismissal of the statutory right-to-counsel claim and otherwise reverse and remand for the District Court to address the merits.