ADHAM AMIN HASSOUN, Petitioner-Appellee, v. JEFFREY SEARLS, IN HIS OFFICIAL CAPACITY AS ACTING ASSISTANT FIELD OFFICE DIRECTOR AND ADMINISTRATOR OF THE BUFFALO FEDERAL DETENTION FACILITY, Respondent-Appellant.
No. 20-2056-cv
United States Court of Appeals FOR THE SECOND CIRCUIT
DECIDED: SEPTEMBER 22, 2020
AUGUST TERM 2020. SUBMITTED: SEPTEMBER 4, 2020.
On Motions to Dismiss and to Vacate the District Court‘s Decisions and Order Granting Judgment to Appellee, and to Vacate the Opinion Granting the Government‘s Motion for a Stay
Before: CABRANES, SULLIVAN, and MENASHI, Circuit Judges.
On July 21, 2020, the government removed Adham Amin Hassoun from the United States. The removal mooted the government‘s appeal of an order
Jonathan Hafetz (Brett Max Kaufman, Charles Hogle, Judy Rabinovitz, Celso Perez, for the American Civil Liberties Union Foundation, New York, NY; Scott Michelman, Arthur B. Spitzer, for the American Civil Liberties Union Foundation of the District of Columbia, Washington, DC; A. Nicole Hallett, for the Mandel Legal Aid Clinic, University of Chicago Law School, Chicago, IL; Jonathan Manes, for the Roderick & Solange MacArthur Justice Center, Chicago, IL, on the brief), for Petitioner-Appellee.
Steven A. Platt, Counsel for National Security (Ethan P. Davis, Acting Assistant Attorney General; William C. Peachey, Director; Timothy M. Belsan, Chief; John J.W. Inkeles, Counsel for National Security, for the Office of Immigration Litigation,
Stephen I. Vladeck, Austin, TX, for amicus curiae Stephen I. Vladek.
MENASHI, Circuit Judge:
On June 29, 2020, the U.S. District Court for the Western District of New York ordered the government to release Adham Amin Hassoun from immigration detention. Hassoun v. Searls, No. 19-CV-370, 2020 WL 3496302, at *19 (W.D.N.Y. June 29, 2020). While the government‘s appeal of that order was pending, the government “successfully removed Hassoun pursuant to his final order of removal from the United States to a third county.” Appellant‘s Notice of Removal, Hassoun v. Searls, 968 F.3d 190 (2d Cir. 2020) (No. 20-2056), ECF No. 72.
The government now moves to dismiss this appeal as moot and requests vacatur of the district court‘s decisions related to
“When a civil case becomes moot pending appellate adjudication, ‘the established practice in the federal system is to reverse or vacate the judgment below and remand with a direction to dismiss.‘” Arizonans for Off. English v. Arizona, 520 U.S. 43, 71 (1997) (alterations omitted). Federal courts follow this practice “to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.” United States v. Munsingwear, Inc., 340 U.S. 36, 41 (1950). Because the district court‘s decisions related to
8 C.F.R. § 241.14(d) could have legal consequences in future litigation between the parties, those decisions should be vacated so that “the rights of all parties are preserved.” Id. at 40.
In contrast, this court‘s opinion granting the government‘s motion for a stay pending appeal does not warrant vacatur because it does not have legal consequences for the parties. A decision concerning a stay is not a final adjudication on the merits of an appeal and lacks preclusive effect. We therefore deny Hassoun‘s motion to vacate this court‘s opinion granting the government‘s motion for a stay pending appeal, and we grant the government‘s motion to vacate the district court‘s decisions related to
BACKGROUND
In 2003, Hassoun was ordered removed from the United States for violating the terms of his non-immigrant visa. Before he could be deported, Hassoun was taken into custody on federal criminal charges of conspiracy to murder, kidnap, and maim persons overseas; of conspiracy to provide material support to terrorists; and of providing material support to terrorists. He was convicted of those charges and sentenced
Upon his release from prison in October 2017, Hassoun was placed in immigration detention under
In March 2019, Hassoun filed another petition for a writ of habeas corpus, challenging his continued detention under
The government appealed the district court‘s decisions related to
During the court‘s consideration of the government‘s motion, the government periodically updated the court on the status of its attempts to remove Hassoun. On July 13, the government filed a notice claiming “material progress in achieving [Hassoun‘s] removal from the United States” and that “[a]bsent an extraordinary or unforeseen circumstance, the government intends to remove [Hassoun] from the United States by July 27, 2020.” Consented Mot. to Extend Administrative Stay, Hassoun, 968 F.3d 190 (No. 20-2056), ECF No. 43. On July 20, the government again notified the court that “U.S. Immigration and Customs Enforcement (ICE) intends to remove ... Hassoun from the United States to a third country during the week of July 20, 2020,” and, for the first time, that “[t]he U.S. government has reached an agreement with a third country to accept Petitioner upon his removal from the United States.” Appellant‘s Notice of Intent to Remove, Hassoun, 968 F.3d 190 (No. 20-2056), ECF No. 67. Finally, on July 22, the government filed a notice that Hassoun had been removed from the United States the previous day. Appellant‘s Notice of Removal, Hassoun, 968 F.3d 190 (No. 20-2056), ECF No. 72; see also Pet‘r-Appellee‘s Notice of Removal, Hassoun, 968 F.3d 190 (No. 20-2056), ECF No. 71.
We have jurisdiction to consider the parties’ motions to dismiss and for vacatur for the reasons set out in our opinion granting the government‘s motion for a stay pending appeal. See Hassoun, 968 F.3d at 195-98. Both parties’ motions raise the question of mootness. “[W]hen a case becomes moot, the federal courts lack subject matter jurisdiction over the action.” Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013) (quoting Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994)). Thus, “[w]henever mootness occurs, the court ... loses jurisdiction over the suit, which therefore must be dismissed.” Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of Watervliet, 260 F.3d 114, 118-19 (2d Cir. 2001). Of course, we have jurisdiction to resolve questions about our jurisdiction. United States v. Shipp, 203 U.S. 563, 573 (1906); Roth v. McAllister Bros., 316 F.2d 143, 145 (2d Cir. 1963) (“[A] tribunal always possesses jurisdiction to determine its jurisdiction.“).
DISCUSSION
No one disputes that this case has become moot, given that Hassoun has been removed from the United States. See, e.g., Nieto-Ayala v. Holder, 529 F. App‘x 55, 55 (2d Cir. 2013) (summary order). But the parties disagree about when that occurred. The government claims that “this case was mooted [on July 21] after a third country agreed to allow Hassoun to remain within its borders and when the government in turn effectuated its mandatory obligation to remove him.” Gov‘t Mot. 2. Hassoun, on the other hand, claims that this case “became practically moot upon the government‘s July 13 notice that [Hassoun‘s] removal would take place ‘[a]bsent an extraordinary or unforeseen circumstance’ by July 27.” Hassoun Mot. 6.
The parties also disagree about the consequences of mootness. The government requests vacatur of the district court‘s decisions related to
I
Hassoun contends that the government‘s appeal was “practically moot” on July 13, Hassoun Mot. 1, when the government filed a consented motion for a stay claiming “material progress in achieving [Hassoun‘s] ... removal from the United States,” Consented Mot. to Extend Administrative Stay, Hassoun, 968 F.3d 190 (No. 20- 2056), ECF No. 43. The government had previously
Regardless of the weight given to the government‘s representation on July 13, the controversy between the parties remained live as long as Hassoun was detained. “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int‘l Union, 567 U.S. 298, 307 (2012) (internal quotation marks omitted). Hassoun‘s habeas petition requested that “the government ... release Mr. Hassoun immediately.” Am. Verified Pet. at 20, Hassoun v. Searls, 2020 WL 3496302 (No. 19-CV-370), ECF No. 13. Hassoun was still detained on July 13—and he remained so until July 21. Because Hassoun sought release from custody and the government was unwilling to release him, a court still could grant effectual relief and the case was not moot. Indeed, the government sought to continue detaining Hassoun despite the district court‘s order that he be released and filed a motion for a stay pending appeal in this court, and Hassoun opposed that motion.1
Hassoun‘s argument draws on the Supreme Court‘s decision in Zadvydas, which interpreted
First, even if the government were detaining Hassoun pursuant to
Second, the government was not detaining Hassoun pursuant to
It is true that the government “reserve[d] the right to re-detain [Hassoun] pursuant to
When this court resolved the government‘s motion for a stay pending appeal on July 16, there was still a live case concerning whether the government was lawfully permitted to detain Hassoun under
Recognizing the lack of actual mootness,3 Hassoun offers a different argument: that even if this court‘s order on the stay motion was proper when it was issued, the court should not have subsequently issued an opinion explaining that order because the government had already removed Hassoun from the United States by the time the opinion was published.
When we granted the government‘s motion for a stay pending appeal on July 16, we noted that “[a]n opinion will be forthcoming.” Order, Hassoun, 968 F.3d 190 (No. 20-2056), ECF No. 60. This is a common practice.4 To resolve the motion, we were required
II
The government‘s appeal is now moot because Hassoun has been removed from the United States. Accordingly, the “issues presented are no longer ‘live‘” and “the parties lack a legally cognizable interest in the outcome” of this appeal. Powell v. McCormack, 395 U.S. 486, 496 (1969).
When a case becomes moot on appeal, “‘[t]he established practice ... in the federal system ... is to reverse or vacate the judgment below and remand with a direction to dismiss.‘” Arizonans for Off. English, 520 U.S. at 71; see Bragger v. Trinity Cap. Enter. Corp., 30 F.3d 14, 17 (2d Cir. 1994). “The reason for this is ... to avoid giving preclusive effect to a judgment never reviewed by an appellate court.” N.Y.C. Emps.’ Ret. Sys. v. Dole Food Co., 969 F.2d 1430, 1435 (2d Cir. 1992). To determine whether vacatur is appropriate, we must “look at the equities of the individual case.” Staley v. Harris County, 485 F.3d 305, 312 (5th Cir. 2007); see U.S. Bancorp Mortg. Co. v. Bonner Mall P‘ship, 513 U.S. 18, 26 (1994).
Vacatur is appropriate “to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.” Munsingwear, 340 U.S. at 41. It is “generally appropriate where mootness arises through ‘happenstance,’ or the unilateral action of the party prevailing below, but not where the appellant moots the case by settlement or withdrawing the appeal.” Kerkhof v. MCI WorldCom, Inc., 282 F.3d 44, 53-54 (1st Cir. 2002) (internal citations omitted). “These end points mark the extremes; for gray-area cases such as this one, the result depends on particular circumstances.” Id. at 54.
A
Hassoun claims that “[t]he government‘s active role in mooting this case makes vacatur [of the district court‘s decisions] unwarranted.” Hassoun Opp‘n 8. But “not all actions taken by an appellant that cause mootness necessarily bar vacatur of the district court‘s judgment.” Russman, 260 F.3d at 122. An appellant‘s actions “constitute ‘forfeiture’ of the benefit of vacatur” if the appellant voluntarily acts with an “inten[t] that the appeal become moot.” Id. On the other hand, “conduct that is voluntary in the sense of being non-accidental, but which is entirely unrelated to the lawsuit, should not preclude our vacating the decision below.” Id.; see N.J. Carpenters Health Fund v. Novastar Mortg., Inc., 753 F. App‘x 16, 21 (2d Cir. 2018) (summary order) (granting vacatur, in part, because an appellant did not act “with the purpose of mooting its appeal“); E.I. Dupont de Nemours & Co. v. Invista B.V., 473 F.3d 44, 48 (2d Cir. 2006) (granting vacatur where “this appeal has been mooted through no fault or machination” of the appellant); Leser v. Berridge, 668 F.3d 1202, 1210 (10th Cir. 2011) (granting vacatur, despite the appellant and moving party having mooted the case, because she lacked “the motive of vacating the district court order“).
“[T]he touchstone of our analysis” is “[t]he appellant‘s fault in causing mootness.” FDIC v. Regency Sav. Bank, F.S.B., 271 F.3d 75, 77 (2d Cir. 2001). “If the appellant has taken action depriving us of continuing jurisdiction over the case, under circumstances that suggest an intention to do so, the appellant is deemed to have forfeited the benefit of the equitable remedy of vacatur of the judgment of the lower court.” Id.
In this case, however, we conclude that the government‘s appeal was “frustrated by the vagaries of circumstance,” U.S. Bancorp Mortg. Co., 513 U.S. at 25, and the removal of Hassoun to a third country was “the natural and apparently long-anticipated result” of the government‘s immigration enforcement efforts, Russman, 260 F.3d at 123. Under
This case resembles others in which the appellate courts have determined that a party‘s actions did not preclude vacatur. For example, in Kerkhof, the appellant “mooted the case unilaterally ... based on a perceived legal obligation” to compensate a former employee under a stock option award contract. 282 F.3d at 54. Because the appellant relied on “the express language” of its legal obligation—the contract—“there [was] no reason to doubt [its] ... good faith,” and the court granted vacatur. Id. Similarly, in Dilley v. Gunn, 64 F.3d 1365, 1372 (9th Cir. 1995), the appellant argued that the case-mooting action “was wholly unrelated to th[e] lawsuit and would have occurred in the absence of litigation.” The court acknowledged that “[t]he administration of a prison does not grind to a halt the moment an inmate files a lawsuit” and that if Dilley, a prisoner, had been “transferred pursuant to prison regulations which permit an inmate to transfer to a lower security institution once he has served a specific amount of time ... without substantial disciplinary problems,” then the “[m]ootness resulting from such a transfer would be attributable to ‘happenstance’ within the meaning of Munsingwear, even if the defendants, as employees of the state‘s prison system, did play some administrative role in the transfer.” Id. The court remanded to the district court to determine whether vacatur was warranted in light of that holding. Id.
As the Dilley court explained, “To hold otherwise might create an incentive for prison officials to hinder routine transfers that would otherwise be available to and desired by inmates who have obtained favorable but not yet reviewed judgments in the district court.” Id. The government makes a similar argument in this case. See Gov. Mot. 2 (“The United States should not have to choose between either relinquishing its right to seek appellate review of the district court‘s judgment by removing a terrorist alien in accordance with the mandatory directives of Congress, or instead preserving its right to appellate review by keeping a terrorist in the United States and potentially having to release him into the community even though three agency heads determined that he could not be safely released into the United States and even though it took years to secure a country that would accept him.“).
Like the parties in Dilley, “[the government] had a relationship to [Hassoun] other than as litigants,” 64 F.3d at 1372, and the government‘s obligations under
The government‘s ongoing effort to comply with
In Arevalo v. Ashcroft, 386 F.3d 19, 20-21 (1st Cir. 2004), the court held that “[e]quitable considerations favor[ed] vacatur” of a district court ruling that “the relevant statute did not authorize ICE to detain Arevalo after the 90-day period provided by
Here too, the government vigorously pursued its appeal—in two courts of appeals, no less—and removed Hassoun pursuant to its obligations under
Finally, the district court‘s decisions could have a preclusive effect in future litigation between the parties over the lawfulness of Hassoun‘s detention.6 Accordingly, we conclude that vacatur of the district court‘s decisions related to
Unlike the district court‘s decisions related to
“[O]rders concerning stays are ‘not a final adjudication of the merits of the appeal’ and accordingly have ‘no res judicata’ effect.” Democratic Exec. Comm. of Fla. v. Nat‘l Republican Senatorial Comm., 950 F.3d 790, 795 (11th Cir. 2020); see Hand v. Desantis, 946 F.3d 1272, 1275 n.5 (11th Cir. 2020); FTC v. Food Town Stores, Inc., 547 F.2d 247, 249 (4th Cir. 1977) (“An order has no res judicata significance unless it is a final adjudication of the merits of an issue.“). For that reason, “vacatur of a prior stay-panel opinion once a case becomes moot on appeal is inappropriate—precisely because that stay-panel opinion cannot spawn binding legal consequences regarding the merits of the case.” Democratic Exec. Comm. of Fla., 950 F.3d at 795; see also SEC v. Citigroup Glob. Mkts. Inc., 673 F.3d 158, 161 (2d Cir. 2012) (“The merits panel is, of course, free to resolve all issues without preclusive effect from this ruling.“).
Hassoun suggests that this conclusion “very well may not be true of the panel‘s jurisdictional pronouncement in this case.” Hassoun Mot. 21. To the extent Hassoun suggests that the precedential status of a motion panel‘s jurisdictional ruling differs from its rulings on other issues, that is mistaken. “[N]early every ... Circuit,” including this one, has held that a merits panel “may revisit [a] motions panel‘s decision on jurisdiction.” Rezzonico v. H & R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999) (citing cases); see also E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1264-66 (9th Cir. 2020) (noting that a motions panel‘s jurisdictional ruling is “persuasive, but not binding“).
Moreover, jurisdictional decisions are an ordinary feature of every case. “[B]efore deciding any case we are required to assure ourselves that the case is properly within our subject matter jurisdiction.” Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001). Although a jurisdictional decision may “preclude relitigation of the issues determined in ruling on the jurisdiction question,”8 such preclusion is limited to “the precise issue of jurisdiction,” GAF Corp. v. United States, 818 F.2d 901, 912 (D.C. Cir. 1987) (emphasis added). As Hassoun admits, “[t]here is no realistic probability that [he] could in the future be in a position to allege that he had been injured by the regulation” because “he is in a foreign country and is forever barred from entry into the United States.” Hassoun Opp‘n 14 (quoting Gov‘t Mot. 13). Accordingly, there is no realistic probability that the court‘s jurisdictional decision will spawn legal consequences for Hassoun and vacatur of the court‘s order is thus inappropriate. See Mahoney v. Babbitt, 113 F.3d 219, 224 (D.C. Cir. 1997) (“In the unlikely event that these same parties again face each other in litigation involving a claim of issue preclusion based on this litigation, then that preliminary stage of this litigation would be a factor for the future court to weigh in evaluating that argument.“).
Because there are no legal consequences of the court‘s opinion for the parties, in terms of preclusion or even precedent, vacatur is inappropriate. “Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property
CONCLUSION
For the foregoing reasons, we DENY Hassoun‘s motion to vacate this court‘s opinion granting the government‘s motion for a stay pending appeal, and we GRANT the government‘s motion to VACATE the district court‘s decisions related to
Any other pending motions are denied as moot.