Jose Rolando Escobar Ruiz v. Immigration and Naturalization Service

J. BLAINE ANDERSON, Circuit Judge,

dissenting,

in which. dissent Judges BEEZER and BRUNETTI concur:

I dissent. This case fails to satisfy the threshold requirement imposed by U.S. Const. Article III, § 2 that those who seek to invoke the power of the federal courts must allege an actual case or controversy. Jenkins v. McKeithen, 395 U.S. 411, 421-25 , 88 S.Ct. 1843 , 1848-51, 23 L.Ed.2d 404 (1969); Flast v. Cohen, 392 U.S. 83, 94-101 , 88 S.Ct. 1942, 1949-53 , 20 L.Ed.2d 947 (1968). A case arises within the meaning of Article III, § 2, if it involves “[a] declaration on rights as they stand ... not on rights which may arise in the future ... an actual controversy over an issue, not a desire for an abstract declaration of the law.” In re Summers, 325 U.S. 561, 567 , 65 S.Ct. 1307, 1311 , 89 L.Ed. 1795 (1945). 1 Plaintiffs in the federal courts “must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.” Linda R.S. v. Richard D., 410 U.S. 614, 617 , 93 S.Ct. 1146, 1148 , 35 L.Ed.2d 536 (1973). There must be a “personal stake in the outcome” such as to “assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 , 82 S.Ct. 691, 703 , 7 L.Ed.2d 663 (1962). 2 This fundamental principle is no different where statutory issues are raised. Cf. United States v. SCRAP, 412 U.S. 669, 687 , 93 S.Ct. 2405, 2415 , 37 L.Ed.2d 254 (1973).

A consequence of Ruiz’s prevailing on the issue that the majority confronts and decides will not advance his interests one iota. To put it more bluntly, he’s damned if we do and damned if we don’t. He has not demonstrated “injury in fact and a sub *1031 stantial likelihood that the judicial relief requested will prevent or redress the claimed injury. . . .” INS v. Chadha, 462 U.S. 919, 936 , 103 S.Ct. 2764, 2776 , 77 L.Ed.2d 317 (1983) (quoting Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 79 , 98 S.Ct. 2620, 2633 , 57 L.Ed.2d 595 (1978)). We are thus precluded from considering the issue of whether the EAJA applies to deportation proceedings. The majority’s discussion and ultimate determination of this issue amounts to nothing more than an advisory opinion that we are powerless to render. U.S. Const. Article III, § 2; FCC v. Pascifica Foundation, 438 U.S. 726, 735 , 98 S.Ct. 3026, 3033 , 57 L.Ed.2d 1073 , reh. denied, 439 U.S. 883 , 99 S.Ct. 227 , 58 L.Ed.2d 198 (1978); Paschall v. Christie-Stewart, Inc., 414 U.S. 100, 101-02 , 94 S.Ct. 313, 314-15 , 38 L.Ed.2d 298 (1973); Golden v. Zwickler, 394 U.S. 103, 108 , 89 S.Ct. 956, 959 , 22 L.Ed.2d 113 (1969).

This case in fact illustrates most of the reasons why Article III, § 2 has been construed to forbid advisory opinions. One is a desire to conserve judicial time and effort by avoiding unnecessary adjudication. Secondly, a practice of giving advisory opinions would promote friction with the other branches of government. Thirdly, advisory opinions often turn out to have no consequence on the particular litigant involved. This is aptly illustrated in the majority’s final paragraph. Finally, because an advisory opinion may be less consequential than a decision in an actual controversy, the parties may not invest sufficient resources in contesting the issues to give the court the information it needs to decide them correctly.

What the majority has done is render an advisory opinion. Escobar Ruiz did not demonstrate he was a prevailing party when he first appealed, Escobar Ruiz v. INS, 787 F.2d 1294, 1298 (9th Cir.1986), and he has not done so to date. Majority Op. at 1029 (“Escobar Ruiz is not presently a prevailing party”).

If and when Escobar Ruiz shows prevailing party status on the merits of his claim, then we should decide whether the EAJA applies to deportation proceedings. Until then, we have circumvented our responsibility under Article III, § 2 to decide cases and have instead acted in a capacity reserved for the legislative branch. I would hold that Ruiz’s appeal is not presently justiciable.

. "The controversy ‘must be a real and substantial [one] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ” Chadha v. INS, 634 F.2d 408, 419 (9th Cir.1980), aff’d, 462 U.S. 919 , 103 S.Ct. 2764 , 77 L.Ed.2d 317 (1983) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 , 57 S.Ct. 461, 464 , 81 L.Ed. 617 (1937)).

. In Chadha v. INS, supra, 634 F.2d at 419 , we determined that there was sufficient adverseness to constitute a justiciable case stating:

"Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold [the statute], the INS will execute its order and deport him.”