Ayuda, Inc. v. Janet Reno, Individually and as Attorney General of the United States, (Two Cases). Ayuda, Inc. v. Janet Reno

WALD, Circuit Judge,

dissenting:

I agree with my colleagues that there is little left to this ease after four years of appeals and two remands from the Supreme Court. Most of the 4000 illegal aliens who allegedly did not register for amnesty by the May 4, 1988 deadline because of misinformation received from INS agents or QDEs about their eligibility under the challenged INS “known to the government” regulations are now consigned to deportation or indefinite continuation of their shadow status. In Reno v. Catholic Social Services, Inc., — U.S. -, 113 S.Ct. 2485 , 125 L.Ed.2d 38 (1993) (“CSS”), the Supreme Court decided that, except in a very minute category of cases, an undocumented alien’s challenge to an INS regulation barring her eligibility for amnesty was not “ripe” unless she had tried unsuccessfully to apply for legalization and been turned away (even though the alien could not contest denial of legalization except by surrendering for deportation). The only cracks the Court left open for a front-end challenge were for those aliens who had been “front-desked,” ie., whose applications had been turned away without filing by lower-level INS officials, or for those aliens who might come within the confines of the Court’s footnote 28:

Although we think it unlikely, we cannot rule out the possibility that further facts would allow class members who were not front-desked to demonstrate that the front-desking policy was nevertheless a *252 substantial cause of their failure not [sic] to apply, so that they can be said to have had the [challenged regulations] applied to them in a sufficiently concrete manner to satisfy ripeness concerns.

Id. — U.S. at - n. 28, 113 S.Ct. at 2500 n. 28. The Court remanded to the trial court to identify any such eligible persons; other courts whose prior rulings, like ours, were vacated in light of CSS, have done likewise. See Perales v. Thornburgh, 4 F.3d 99, 100 (2d Cir.1993); League of United Latin American Citizens v. INS, 999 F.2d 1362 (9th Cir.1993); Catholic Social Services, Inc. v. Reno, 996 F.2d 221, 222 (9th Cir.1993).

My colleagues decline to follow that route, however, and it is from that determination that I dissent. I do not believe that on the extensive record before us, now spanning over five years, we can “rule out the possibility that further facts would allow class members who were not front-desked to demonstrate that the front-desking policy was nevertheless a substantial cause of their failure not [sic] to apply,” or the possibility that some of the thousands of aliens whose claims have been investigated by masters appointed by the district court were not actually front-desked. I would, therefore, remand for the identification process contemplated by the Court in CSS.

The objections my colleagues raise to pursuing that route are not persuasive. They say first that we have no certified class here as was the case in CSS and some of the other post-CSS remands; and further, since the original five plaintiffs in the Ayuda litigation and the organizational plaintiffs would not meet the CSS ripeness analysis so as to be eligible to continue the ease, no one else can possibly maintain it. 1 The tortured procedural history of this action, however, does not lend itself to any such neat “over and out” solution. When Judge Sporkin made his de-cisión on March 30, 1988 that the INS’s “known to the government” regulation was invalid (a decision the government chose not to appeal), he issued Supplemental Orders VII, IX, and X, which in tandem set up a procedure through which aliens who had not applied for amnesty because they were “not allowed or [were] dissuaded from filing an application by INS or its agents” could file statements with specially appointed masters about their reasons for not seeking legalization by May 4, 1988. 2 Ayuda, Inc. v. Meese, 687 F.Supp. 650 (D.D.C.1988) (Supplemental Order VII). The express purpose of this process was to identify aliens who had been deterred in any way from registering by the INS regulation or INS officials and to ascertain the nature and extent of their injury, so that appropriate remedies could be formulated. See Ayuda, Inc. v. Meese, 700 F.Supp. 49, 50 (D.D.C.1988). The aliens’ statements were to detail for the masters the reasons why they had not registered by the statutory deadline. See 687 F.Supp. at 672-74 (reproducing court-ordered form requesting statement of reasons). Given this order, the critical factual foundation for whether any of the aliens who filed such statements are eligible under the “front-desking” exception or footnote 28 already exists in the masters’ files below.

Moreover, as the majority notes, a class certification motion and a motion to add new plaintiffs as representatives of the class have been pending for several years. These motions have never been acted on by the district court. After Judge Sporkin announced his intention to retain jurisdiction over the case to formulate relief for individuals misled or prevented from applying by the INS (or QDEs), the original plaintiffs sought to amend their complaint to certify a class of persons who “failed to apply for legalization *253 prior to May 5, 1988 because they were dissuaded or misled ... [by] the INS or its agents ... or because they were not allowed to file or were dissuaded from filing an application by INS or its agents.... ” Plaintiffs’ First Amended Complaint at 17-18. This original class certification motion was filed in September 1988 and renewed two years later. Judge Sporkin held the motion in abeyance pending completion of the mastérs’ work. See 700 F.Supp. at 52 .

A search of the masters’ files would reveal whether any of the putative class members meets the new CSS ripeness test. 3 If such persons exist, it should not be too late for the court to rule on a certification motion to allow the action to continue. Rule 28(c)(1) requires a ruling on a class certification motion “[a]s soon as practicable after the commencement of an action.” Fed.R.Civ.P. 23(c)(1). The district court held the motion for class certification open pending the results of its special inquiry “to determine who the injured parties are and the extent to which their injuries were caused by the government’s conduct and need to be remedied.” Aytida, 700 F.Supp. at 50 . Although the words “as soon as practicable” are not without effect, “there is no set deadline by which the court must act.” Montelongo v. Meese, 803 F.2d 1341, 1351 (5th Cir.1986) (decision to certify made three years after institution of suit), cert. denied, 481 U.S. 1048 , 107 S.Ct. 2179 , 95 L.Ed.2d 835 (1987); see also Larionoff v. United States, 533 F.2d 1167 , 1183 n. 40 (D.C.Cir.1976) (citing Marvin E. Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39 , 41-42 (1967)) (“[T]he time when a hard determination is ‘practicable’ as to the propriety of a class action will obviously vary from case to case.... [I]t may not be possible to decide even tentatively near the outset of the ease whether it should continue as a class action.”), aff 'd, 431 U.S. 864 , 97 S.Ct. 2150 , 53 L.Ed.2d 48 (1977). In light of the complexity of the legal and factual issues raised in this case and the labyrinthine route it has followed through the appellate courts, we should afford the district court considerable latitude with regard to matters of timing. Moreover, “although the question of the propriety of class certification after a judgment on the merits in favor of the class is a difficult one,” Postow v. OBA Federal Savings & Loan Ass’n, 627 F.2d 1370, 1381 (D.C.Cir.1980), we have long recognized that “there may be equitable reasons for allowing post-judgment certification in some cases.” Id. at 1383 . Because of the singularly difficult posture of this case, and because strong considerations of equity should animate its resolution, I would give the district court an opportunity now to rule on a class certification motion that would accommodate the CSS test, if that proves feasible.

My colleagues also argue that our earlier opinions acknowledged that if any aliens claiming they were “known to the government” because of failure to file required reports under section 265, 8 U.S.C. § 1305 (1970), had actually been turned away from filing, they could have brought suit in the district court, but that no such cases were advanced. See Ayuda, Inc. v. Thornburgh, 948 F.2d 742, 751 (D.C.Cir.1991). Such persons, however, would not at the time have been plaintiffs in the suit, and their statements may not yet have been filed with the masters — or, if filed, may well have been buried among the 4000 stories in the masters’ files. Moreover, non-section 265 aliens who would fall into the “front-desker” or *254 footnote 28 categories would have had little motivation to come forward in the section 265 portion of the case, since the earlier district court decision invalidating the “known to the government” regulation not involving section 265 aliens was never appealed. And although the government now asserts, as the majority points out, that “known to the government” applications were never “front-desked,” this policy appears only to have been instituted after the March 30 decision by the district court invalidating the regulation. 4 The plaintiffs have had no opportunity to respond to that claim. See Plaintiffs’ Response to July 7, 1993 Order at 9 (asserting need for review of applicants who were “fronfidesked” by the INS or a QDE or who fall within the scope of CSS footnote 28).

In addition, the test for eligibility to sue touched upon in earlier opinions was not precisely the one adopted by the CSS Court, years later. The majority found no evidence of the INS “literally closing the INS’ office doors in aliens’ faces.” Ayuda, 948 F.2d at 751 . The Supreme Court was a tad more generous, acknowledging the possibility that if the “front-desking policy was nevertheless a substantial cause of their failure not [sic] to apply, aliens might be eligible.” CSS, — U.S. at - n. 28, 113 S.Ct. at 2500 n. 28. This new and somewhat broader test would now be the central focal point of the standing/ripeness inquiry in any continued litigation. It certainly was not so in the earlier rounds.

There is no doubt that this is the last act of the Ayuda drama. Given the narrowness of the exception left open by the Supreme Court and the ready availability of information as to whether any aliens within this exception exist, together with the pendency of a class certification motion for over five years that would include such persons and a motion to add new plaintiffs as class representatives, a remand to allow the plaintiffs to renew a class certification motion for persons registered with the masters who meet the CSS ripeness criteria seems the safe, humane, and legally correct thing to do.

I respectfully dissent from the panel’s refusal to remand for that limited purpose.

. I do agree that in light of the Supreme Court’s analysis in CSS, the organizational plaintiffs would not likely have any standing, although we have never decided that issue expressly. I also would not rely on the original five plaintiffs in the Ayuda suit, four of whom alleged only that they did not file because they thought it "futile" and the fifth of whom actually filed, to represent any class created under the Supreme Court's new test.

. The Memorandum Opinion accompanying Supplemental Order XI subsequently changed the wording to "individuals ... misled to their detriment by INS’s erroneous interpretation and related government actions.” Ayuda, Inc. v. Meese, 700 F.Supp. 49, 50 (D.D.C.1988).

. Throughout the diffuse record there are indications that such persons may exist. See, e.g., Defendants’ Opposition to Renewal of Plaintiffs’ Motions for Leave to Amend Complaint and for Class Certification, Sept. 26, 1990, at 21 ("testimony ... show[s] wide variation as to whom [at INS] the aliens spoke to, what they said, and what was said to them’’); Special Master’s Report, Oct. 25, 1989, at 2 (identifiable class of aliens exists who did not file by the May 4, 1988 deadline because they were illegally dissuaded or misled by the INS); Transcript of Status Call, May 2, 1988, at 35-36 (statements that INS officers in two cities are not accepting applications for legalizing applicants eligible under the terms of the court’s order); Bedor Affidavit, attached to Notice of Evidence of Defendants' Failure to Comply with the Court's Orders and Renewal of Request to Toll May 4, 1988 Filing Deadline at ¶ 10 (refusals to accept "known to the government" applications without fee despite order of the court); Tafoya Affidavit at ¶ 20 (applicants told by INS they were ineligible under "known to the government" criteria and declarant not aware INS kept records of such rejected applicants).

. See Press Release attached to Notice of Measures to be Taken in Response to Court's Order of March 30, 1988, Apr. 4, 1988 (new policy announced in March 1988 permitting filing of “known to the government” applications).

My colleagues cite a "concession” at oral argument by plaintiffs' counsel almost five years ago that "at most, some local INS offices were informing aliens that the office would recommend denial of applications based on the section 265 theory.” Ayuda, 880 F.2d at 1342 (cited in maj. at 251). We have no transcript of that argument, so it is not possible to evaluate in what context any such "concession” may have been made. I do note, however, that such a concession appears to be at odds with what the plaintiffs have said subsequently, see Plaintiffs' Response to July 7, 1993 Order at 9, and with other evidence in the record, see note 3 supra, and even on its own terms does not apply to non-section 265 aliens who apparently had been front-desked prior to Judge Sporkin's March 30, 1988 order. See, e.g., INS News Release, Apr. 11, 1988, attached to Supp.App. to Defendant-Appellants' Brief at 8 (No. 90-5293) (INS "will immediately begin accepting applications for legalization from some non-immigrant aliens in this country who were previously viewed as ineligible for the program.”) (emphasis added); Affidavit of William S. Slattery, Assistant Commissioner, Legalization, Apr. 28, 1988 at ¶ 9, attached to Supp.App. to Defendant-Appellants' Brief at 2 (No. 90-5293) (“INS has not received any complaints that any Legalization Office or officer has refused to accept applications in the 'known to the Government' category, since we have begun our efforts to publicize the court’s orders ") (emphasis added).