Opinion
Civil Action No. 19-2773 (ABJ)
05-01-2020
M.M.V., et al., Plaintiffs, v. William BARR, in his official capacity as Attorney General of the United States, et al., Defendants.
Gregory P. Copeland, Sarah Telo Gillman, Rapid Defense Network, Elora Mukherjee, Pro Hac Vice, Morningside Heights Legal Services, Inc., New York, NY, Steven G. Barringer, Greenberg Traurig, P.A., Washington, DC, Amy Maldonado, Law Office of Amy Maldonado, East Lansing, MI, Bridget Cambria, Pro Hac Vice, Reading, PA, Caroline Heller, Pro Hac Vice, Greenberg Traurig P.A., Hassan Minhaj Ahmad, HMA Law Firm PLLC, McClean, VA, for Plaintiffs. Christopher Charles Hair, Erez Reuveni, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
Gregory P. Copeland, Sarah Telo Gillman, Rapid Defense Network, Elora Mukherjee, Pro Hac Vice, Morningside Heights Legal Services, Inc., New York, NY, Steven G. Barringer, Greenberg Traurig, P.A., Washington, DC, Amy Maldonado, Law Office of Amy Maldonado, East Lansing, MI, Bridget Cambria, Pro Hac Vice, Reading, PA, Caroline Heller, Pro Hac Vice, Greenberg Traurig P.A., Hassan Minhaj Ahmad, HMA Law Firm PLLC, McClean, VA, for Plaintiffs.
Christopher Charles Hair, Erez Reuveni, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
ORDER
AMY BERMAN JACKSON, United States District Judge
On April 27, 2020, the Court granted defendants' partial motion to dismiss because it found that it did not have jurisdiction over a majority of the claims and claimants. Order Granting Partial Mot. to Dismiss and Denying Mots. for Joinder [Dkt. # 96]. Approximately one hundred plaintiffs were dismissed from the action, and therefore, the Court lifted the administrative stays of removal orders that had been issued to preserve the status quo while the jurisdictional issues were resolved. See id . The Court also denied plaintiffs' five motions to join additional individuals as plaintiffs in the case on the grounds that joinder would be futile, and it lifted the administrative stays it had issued pending the ruling on the joinder motions. Id. That same day, plaintiffs filed a Notice of Appeal. Notice of Appeal [Dkt. # 98]. On April 28, 2020, the government began removing these individuals from the United States, and plaintiffs filed a motion to stay the judgment pending appeal. [Dkt. # 102] ("Pls.' Stay Mot."). Defendants have opposed the motion. Defs.' Opp. to Pls.' Mot. for Stay [Dkt. # 105]
It is unclear whether the Court of Appeals has jurisdiction to hear the appeal since eighteen plaintiffs and their claims remain in the action and have yet to be decided. Courts of appeals have jurisdiction "of appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291. "A decision is final when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. By contrast, a decision that resolves some, but not all, of the claims in a complaint ... is generally non-final and non-appealable. With a handful of exceptions ... a party may appeal such a partial disposition only with the district court's permission, pursuant to Federal Rule of Civil Procedure 54(b)." Shatsky v. Palestine Liberation Org. , No. 17-7168, 955 F.3d 1016, 1025–26 (D.C. Cir. Apr. 14, 2020) (internal quotation marks and citations omitted).
A stay pending appeal is an extraordinary remedy. Cuomo v. U.S. Nuclear Regulatory Comm'n , 772 F.2d 972, 978 (D.C. Cir. 1985). It is "an intrusion into the ordinary processes of administration and judicial review and accordingly is not a matter of right." Nken v. Holder , 556 U.S. 418, 427, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal quotation marks and citation omitted). Instead, a stay is an exercise of judicial discretion, and whether to grant it depends upon the specific circumstances of the case. Id. at 433, 129 S.Ct. 1749. The moving party bears the burden of justifying why the court should grant this extraordinary remedy. Id. at 433–34, 129 S.Ct. 1749
A court is supposed to consider four factors in connection with a stay motion:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Id. at 434. The Supreme Court has explained that the first two factors "are the most critical." Id.
With respect to the first factor, the Court of Appeals has stated that "[i]t is not enough that the chance of success on the merits [is] better than negligible." Id. (internal quotation marks and citation omitted). Instead, it must be "substantial[.]" Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc. , 559 F.2d 841, 843 (D.C. Cir. 1977). The Court has also observed that a movant's failure to satisfy this stringent standard for demonstrating a likelihood of success on the merits is "an arguably fatal flaw for a stay application." Citizens for Responsibility & Ethics in Washington ("CREW") v. Fed. Election Comm'n , 904 F.3d 1014, 1019 (D.C. Cir. 2018) (per curiam); see Ark. Dairy Co-op Ass'n, Inc. v. U.S. Dep't of Agric. , 573 F.3d 815, 832 (D.C. Cir. 2009) (affirming the denial of injunctive relief where the plaintiff failed to show likelihood of success on the merits).
The second factor, similarly, requires more than the mere "possibility of irreparable injury." Nken , 556 U.S. at 434, 129 S.Ct. 1749 (internal quotation marks and citation omitted). "Irreparable harm must be ‘both certain and great[,]’ and ‘actual and not theoretical.’ " CREW , 904 F.3d at 1019, quoting Wis. Gas Co. v. F.E.R.C. , 758 F.2d 669, 674 (D.C. Cir. 1985). Where there is a low likelihood of success on merits, a movant must show a proportionally greater irreparable injury, see Cuomo , 772 F.2d at 974, in order to warrant the "extraordinary remedy" of a stay, id. at 978.
The last two factors, "the harm to the opposing party and weighing the public interest ... merge when the Government is the opposing party." Nken , 556 U.S. at 435, 129 S.Ct. 1749. Here, for all of the reasons stated in the memorandum opinion granting the partial motion to dismiss and denying the motions for joinder, the Court cannot find that plaintiffs have a substantial likelihood of success on the merits of their appeal. Their stay motion merely reiterates the arguments advanced in their opposition to the partial motion to dismiss, and the Court has not been presented with anything new to consider.
First, there is no evidence that a majority of the challenged actions have been reduced to writing, and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") clearly strips the Court of jurisdiction to review unwritten policies. 8 U.S.C. § 1252(a)(2)(A) ; Mem. Op. at 24–32, citing L.M.-M. v. Cuccinelli , Civ. A. No. 19-2676, 442 F.Supp.3d 1 (D.D.C. Mar. 1, 2020) (finding that it did not have jurisdiction to review unwritten policies); American Immigration Lawyers Association v. Reno , 18 F. Supp. 2d 38 (D.D.C. 1998), aff'd 199 F.3d 1352 (D.C. Cir. 2000) (same). Second, the D.C. Circuit has found that the sixty-day statutory time limit for bringing claims is jurisdictional and begins running on the date that the challenged regulation or written policy became effective. Am. Immigration Lawyers Ass'n v. Reno ("AILA") , 199 F.3d 1352, 1355 (D.C. Cir. 2000) ; 8 U.S.C. § 1252(e)(3)(B). The D.C. Circuit has affirmed the dismissal of plaintiffs from the case whose claims fall outside of the time limit. AILA , 199 F.3d at 1356–57. Therefore, the Court is without jurisdiction to hear the claims of those plaintiffs added to the second amended complaint, [Dkt. # 54], and any plaintiffs added thereafter. Finally, the motions for joinder would be futile because all of the proposed plaintiffs' claims fall well outside of the sixty-day jurisdictional time period. Thus, this factor does not weigh in favor of a stay.
Plaintiffs argue that they have a substantial likelihood of success on the merits because the Court misinterpreted AILA . Pls.' Stay Mot. at 10. Plaintiffs argue that the Appeals Court "merely affirmed the dismissal of plaintiffs who were joined after the 60-day filing window where no plaintiff had a timely, viable claim," id. , while here there are plaintiffs with viable claims within the filing window.
The district court in AILA found that those plaintiffs added to an amended complaint that was filed after the sixty-day window could not "relate back" to the date of the original complaint because the statutory deadline was jurisdictional. AILA v. Reno , 18 F. Supp. 2d 38, 46–47 (D.D.C. 1998). Thus, the court's ruling was not predicated on the fact that no plaintiff had a viable claim. The D.C. Circuit, upon review, stated: "[w]e see no reason to disturb the district court's analysis, and so we affirm the dismissal of these claims substantially for the reasons stated in the court's thorough opinion." Id. at 1357.
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This problem is particularly acute for the movants who have never been joined in this case as plaintiffs at all. While this action was pending, plaintiffs filed a succession of motions for joinder and emergency motions seeking to stay the deportation of proposed additional plaintiffs. While the Court granted the motions for administrative stays while it considered the merits of the joinder motions, it ultimately found that the plaintiffs could not be joined to the action, and it denied the motions without prejudice to future actions that these plaintiffs may want to file. The joinder motions had little legal support, particularly given the sixty-day rule, and the administrative stays extended to the proposed plaintiffs have been hanging by a thread for some time.
Plaintiffs argue, though, that they will be irreparably harmed, because they will be returned to countries where they "will suffer further sexual and physical violence, persecution, torture, or death." Pls.' Stay Mot. at 18. The Court is sensitive to the harsh circumstances that these plaintiffs have endured, and the fact that many of these plaintiffs are children, and it agrees that this factor weighs in favor of plaintiffs. But, given the low likelihood of success on the merits, the question is whether this showing alone warrants a stay pending appeal.
The last two factors do not weigh heavily in favor of either plaintiffs or defendants. The Supreme Court has stated that there is a "public interest in prompt execution of removal orders," because "[t]he continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established and permits and prolongs a continued violation of United States law." Nken , 556 U.S. at 436, 129 S.Ct. 1749 (internal alterations, citations and quotation marks omitted). But these plaintiffs are not being removed because they violated the law; they are being removed because their asylum petitions have been denied under troubling circumstances. The Court recognized that "[t]he interest in prompt removal may be heightened by the circumstances as well" which may include whether the alien "has substantially prolonged his stay by abusing the processes provided to him." Id. But there is no evidence of that either. The Supreme Court also stated in Nken that there is a "public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm." Id. at 436, 129 S.Ct. 1749. Therefore, the third and fourth factors are neutral.
The D.C. Circuit has provided some guidance that could point in the direction of a stay. While the Court is not persuaded of the strength of the appeal, a stay pending appeal may be warranted if there are "serious, substantial, [and] difficult" questions going to the merits, which make them "fair ground for litigation and thus for more deliberative investigation." Holiday Tours, Inc. , 559 F.2d at 844 ; see also Comm. on the Judiciary of the United States House of Representatives v. Miers , 542 F.3d 909, 911–12 (D.C. Cir. 2008) (Tatel, J., concurring). More recently, the D.C. Circuit found that "a lessor likelihood of success on the merits might suffice if each of the other three factors ‘clearly favors’ granting the injunction" but that "serious legal questions" would not suffice where the other three factors were merely "not contrary to a preliminary injunction." Davis v. Pension Ben. Guar. Corp. , 571 F.3d 1288, 1292 (D.C. Cir. 2009), quoting Holiday Tours , 559 F.2d at 843.
Considering those authorities, and the fact that the issues in this case warrant considerable deliberation, the Court would be inclined to grant a stay pending appeal. This is not the case described in Davis in which the factors are simply "not contrary" to the issuance of a stay; the Court has found that irreparable harm weighs in plaintiffs' favor. But there is another impediment to the issuance of such an order: the Court must also consider the statutory restrictions set forth in the Immigration and Nationality Act. 8 U.S.C. § 1252(e)(1) of the INA provides:
Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may—
(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection.
The relevant "subsequent paragraph" is § 1252(e)(3)(A)(ii), which states that judicial review of determinations under § 1225(b) (which governs the expedited removal process) must be limited to determinations of "whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law." 8 U.S.C. § 1252(e)(3)(A)(ii). This paragraph also provides that any challenge on the validity of the system must be filed no later that sixty days after the challenged action is first implemented. Id. § 1252(e)(3)(B).
As stated above, in granting defendant's partial motion to dismiss, the Court found that it was precluded from reviewing a majority of the second amended complaint because they did not fall within § 1252(e)(3). Specifically, the Court found that a majority of the actions alleged in the second amended complaint were not written, and that many of the plaintiffs had brought claims outside of the sixty-day statutory window. Because this "subsequent paragraph" does not authorize judicial review, and there is no statutory provision "specifically authoriz[ing]" the Court to stay removal orders in the event of an appeal regarding the applicability the paragraph, the Court is restricted from issuing any "declaratory, injunctive, or other equitable relief." 8 U.S.C. § 1252(e)(1)(A). Thus, the Court is precluded from staying the removal orders of those plaintiffs who have been dismissed from the case.
For these reasons, plaintiffs' motion to stay pending appeal is DENIED and the temporary administrative stay issued on April 28, 2020 is hereby lifted.
SO ORDERED .