Reply Brief — Tefel v. Reno

> Court, U.S.

() | OP RTLED

MAY 2.6 “ns

IN THE

Supreme Court of the S

ROBERTO TEFEL, et al.,

} Petitioners,

v.

UNITED STATES,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITIONER’S REPLY IN SUPPORT OF PETITION

Of Counsel:

Ira J. Kurzban

KURZBAN, KURZBAN,

WEINGER & TETZELI

2650 S.W. 27” Ave.

2nd Floor

Miami, Florida 33133

(305) 444-0060

(305) 444-3503 (fax)

Robert E. Juceam*

Jay D. Majors

Gejaa Gobena

FRIED, FRANK, HARRIS,

SHRIVER & JACOBSON

1001 Pennsylvania Avenue, NW

Suite 800

Washington, DC 20004

(202) 639-7000

(202) 639-7003 (fax)

Counsel for the Petitioners

*Counsel of Record

Balmar Legal Publishing Services, Washington, DC 20005 (262) 682-9829

N

—

TABLE OF CONTENTS

1. The Government’s Untested Appellate

Assertion That Some (But Not All) Of

The Class Representatives May Have

Individually Obtained Relief Is Irrelevant

And Does Not Denigrate The Continuing

Legal Importance Of This Class..................s000+

a. Under This Court’s Precedent,

The Claims Of The 40,000

Active And Justifiable Even If

Some Of The Individual Class

Representatives Have Been

SEPT siisciiibhienieiahdinddanneinilinnginenscnesen

They Have Raised A Valid Due-Process

_Claim Worthy Of This Court’s Review ..............

a. The Government’s Response Mis-

Benefit, Even If The Award

Already Paid Over $1.7 Million In

Fees And Had Abandoned Other

Claims For Relief

The Government’s Response Fails To

Overcome Petitioners’ Showing That

They Have Raised Valid Estoppel Claims

Worthy Of This Court’s Review............0-sse0

a. The District Court Expressly

Found That Petitioners Had

Demonstrated A Likelihood Of

Success On The Traditional

Elements Of Estoppel, And

The Eleventh Circuit Did Not

Showing (1) That The Eleventh

Circuit Erred In Concluding

That An Element Of

“Affirmative Misconduct” Was

Required By This Court’s

Precedent And (2) That It

Misapplied That Element In

iii

TABLE OF AUTHORITIES

‘ Page Number

Barrett v. United States, 423 U.S. 212 (1976)......c.cececscseoeee. 10

Connecticut Bd. Of Pardons v. Dumschat,

FE es Pe EOE) iitniistiiendibisihiltiscicniivtidcnictnccbtinnecustin 5,6

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

ER el Ae Oe hs GPF Cee acnserssevesosecencesocccseyecosnes 3

Office of Personnel Mgmt. v. Richmond,

FN AE ER IED hncktniisitsiiescbbtehiiatceesureninbiiioscbanntniianilicenais 9

Ponte v. Real, 471 U.S. 491 (1985)..........cccccccsssscssessssseceeeee 6

Shvartsman v. Apfel, 138 F.3d 1196 (7th Cir. 1998)............. 6

Soae v. Towa, 9 UB. FS (UGTS). vvsccvccccssssceccsssecsoosessocssrsee 2,3

United States ex rel. Accardi v. Shaughnessy,

EI: EN IIIT cieiiiscshicschciensddsanbhuedeniiniensesimensenocesicoce 6

United States v. Nixon, 418 U.S. 683 (1974)...........cccsceeseeee 6

United States Parole Comm'n v. Geraghty,

DF AAR. FO CAPO ectthccininiitntbiensscibeendievesiiccosncssabcedss 2,3

ARGUMENT

The Government’s response largely ignores Petitioners’

showing that the Eleventh Circuit’s opinion (1) contradicts

prior rulings by this Court as to Petitioners’ due process

claim; (2) misapplies the estoppel precedent of this Court; and .

(3) conflicts with the estoppel jurisprudence of other Circuits.

Instead, the Government devotes the bulk of its brief to an

irrelevant discussion of the status of the individual claims of

the named class representatives. Petitioners are a certified

class of 40,000 plaintiffs, who continue to suffer the threat of

deportation and other related harms. The Government’s

suggestion that this Court’s certiorari review should turn upon

an examination of claims of certain of the class

representatives ignores this Court’s explicit precedent making

Clear that the claims of the class members survive the

resolution of any individual claims and remain

worthy of this Court’s review.

The Government’s attacks upon the substance of

Petitioners’ claims are no more well-grounded. Just as the

Eleventh Circuit did, the Government turns this Court’s

precedent on its head to suggest that it bars Petitioners’

procedural due process claim when in fact it squarely supports

it. As to Petitioners’ estoppel claim, the Government entirely

declines to address Petitioners’ rebuttal of the single basis on

which the Eleventh Circuit denied this claim. Moreover, it

simply ignores the conflicts in the law of estoppel arising

between the Eleventh Circuit’s application of the law and that

of several other Circuits.

1. The Government’s Untested Appellate Assertion That

Some (But Not All) Of The Class Representatives May

Have Individually Obtained Relief Is Irrelevant And Does

Not Denigrate The Continuing Legal Importantce Of This

Case.

The Government devotes the bulk of its response to a

suggestion that the validity of Petitioners’ claims is somehow

2

reduced because some (albeit unquestionably not all) of the

named class representatives allegedly may have been awarded

some form of relief. This contention is meaningless to this

Court’s decision to grant certiorari, because (1) the class’s

claims survive any individual relief to the named

representatives, and (2) the Government admits that some of

the named representatives have not resolved their claims.’

a. Under This Court’s Precedent, The Claims Of

The 40,000 Class Members Remain Fully Active

And Justiciable Even If Some Of The Individual

Class Representatives Have Been Mooted

Under the explicit precedent of this Court established in

Sosna v. Iowa, 419 U.S. 393 (1975), the Government’s

remarks that relief may have been obtained by some of the

named class representatives are irrelevant to this Court’s

decision to award certiorari in this case. See Government

Response (“Resp.”) at 14-16. Sosna squarely held that an

action brought by a certified class of plaintiffs survives the

mooting of a named class representative’s claims. This Court

stated specifically that an Article III case or controversy “may

exist ... between a named defendant and a member of the

class represented by the named plaintiff, even though the

_claim of the named plaintiff has become moot.” Sosna, 419

US. Id. at 402. In United States Parole Comm'n v. Geraghty,

the Court extended the rationale of Sosna to cases in which

class certification has been denied. 445 U.S. 388, 404 (1980).

In this case, of course, the Petitioners constitute a duly

certified class, so the class’s claims plainly survive any

resolution of the individual representatives’ claims, under

Sosna. Moreover, even if the class certification is as flawed

as the Government alleges (but Petitioners dispute), this

Court’s holding in Geraghty unquestionably states that the

' Moreover, the Government’s remarks as to the relief obtained by

some of the named class representatives do not rely upon any evidence

properly introduced at trial. These assertions were only introduced as the

arguments of coumsel on appeal, and they thus carry no weight.

3

claims of the Petitioners’ class are still fully worthy of

certiorari.

This Court fecently reiterated the principles that

animated Sosna and Geraghty, noting that “a defendant

Claiming that its voluntary compliance moots a case bears tine

formidable burden of showing that it is absolutely clear the

allegedly wrongful behavior could not reasonably be-expected

to recur.” Friends of the Earth, Inc. v. Laidiaw

Environmental Servs. (TOC), Inc., 120 S. Ct. 693, 709 (2000).

The Government has not even attempted to make any such

showing in this case. Plainly, the district court recognized

that the 40,000 Petitioners in the certified class faced

enormous harm beyond the individualized claims of the

named class representatives. It found “powerfully

persuasive” the claims detailed in its opinion as representing

“a cross-section of the Plaintiff class. There are thousands of

other cases that could be developed at the ultimate trial in this

case.” Petition Appendix (“Pet. App.”) B at 83a. That court

was fully aware that the relief afforded to some of the

individual named Petitioners is hardly indicative of the

treatment of the class as a whole. The district court

specifically found that “The Defendants have respectfully, but

forcefully, made it clear that they will continue to deport class

members.” Id. at 84a. Moreover, the class of 40,000

Petitioners has suffered other unredressed harms besides the

threat of deportation, in such forms as denial of access to

employment while proceedings were pending, expiration of

claims by aged-out parties, and inability to pursue claims or

benefits on behalf of family members.

Finally, Defendants’ arguments are an invitation to abuse

of the class action form. If they prevail, any defendant facing

class litigation could escape accountability to the class by

granting even small relief to the representatives.

4

b. As The Government Itself Concedes, At Least

Two Of The Individual Class Representatives

Indisputably Remain Active Plaintiffs

Even if the status of the individual class representatives’

causes of action were in some way relevant to the Court’s

decision to grant certiorari in this matter, it is clear from the

Government’s own brief that this point is a diaphanous issue.

Concededly, at least two of the named class representatives

have not obtained any form of relief from deportation. Resp.

at 14, 16.

Indeed, the district court had examined the claims of the

named class representatives at length in its opinion, including

one of the individuals whom the Government admits is stili

facing deportation, and found that each one had asserted valid

claims through which to seek suspension of deportation. Pet.

App. B at 74a-84a. The district court specifically described

the situation faced by Ms. Khadijeh Aidinezhad, One of the

two individual class representatives whose claims the

Government admits are still unquestionably unresolved and

unredressed. It noted that the “attorney for INS agreed that

Ms. Aidinezhad would suffer extreme hardship if deported to

Iran.” The district court further found that Ms. Aidinezhad

was an adequate class representative, because, inter alia,

. Aidinezhad is the sole care-giver and financial

vider to her 79-year-old mother, a U.S. resident .

. . Ms. Aidinezhad’s mother requires constant

medical attention and care and relies entirely on Ms.

Aidinezhad to provide her with basic necessities

and medicine . .. Ms. Aidinezhad hoped to continue

her education in the United States and complete her

master’s degree, an opt'on not available to women

in Irap.

If Ms. Aidinezhad is deported, she will lose the

chance to. continue her education, and more

importantly, her elderly and dependent mother will

—

5

lose the only financial support and care giver she

has.

Id. at 79a. There has been no showing that any of these facts

have changed. The same remains true for Subalecthumy

Vengadasalam, the other named class representative conceded

by the Government still to be in danger of deportation. See

Resp. at 19 n.13. Even if this Court were inclined to review

the status of the named class representative, the adequacy of

those representatives is not in doubt.

2. The Government’s Response Fails To Overcome

Petitioners’ Showing That They Have Raised A Valid

Due-Process Claim Worthy Of This Court’s Review

a. The Government’s Response Misstates The

Holding In Dumschat, Where This Court

Squarely Stated That Due Process Protection

Can Attach To The Right To Seek A Benefit,

Even if The Award Thereof Is Discretionary

The Government’s response attempts to craft a new due

process rule in conflict with this Court’s jurisprudence by ignoring

the clear language of Connecticut Bd. of Pardons yv.

Dumschat, 452 U.S. 458 (1981). Repeating the error made by

the Eleventh Circuit, the Government simply posits without

support the notion that, because Petitioners do not have a due

process right to obtain suspension of deportation, they must

therefore have no protectable right to seek suspension. Resp.

at 23. Dumschat, respectfully, reached precisely the opposite

conclusion.

As Petitioners noted in their Petition, the Court in

Dumschat affirmed the legal basis for distinguishing between

the right to receive relief and the property or liberty interest in

the right to seek relief: “We hold that the power vested in the

Connecticut Board of Pardons to commute sentences

conferred no rights on respondents beyond the right to seek

commutation.” Petition (“Pet.”) at 11; Dumschat at 467

(emphasis added). Petitioners further showed that, in so

ruling, Dumschat was one of a string of cases reaching

6

essentially this conclusion. Pet. at 11; United States ex rel.

Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); United

States v. Nixon, 418 U.S. 683, 695-69 (1974); Ponte v. Real,

471 U.S. 491, 498-99 (1985). The Government’s attempt to

distinguish some of these cases simply reiterates the same

fallacy it made in discussing Dumschat, by incorrectly

equating the right to obtain relief with the right to seek it.’

Resp. at 23 n.14.

Moreover, Petitioners demonstrated that the Eleventh

Circuit’s opinion was both contrary to all of these cases from

this Court and sharply at variance with cases from other

Circuits. Pet. at 13-14. The Government attempts to address

only a few of these cases and to distinguish them on factual

grounds, but it cannot escape the ciear holdings of these cases,

which harmonize with Dumschat.’

" For the same reason, the various cases cited by the Government in

support of the proposition that Petitioners have no due process right to

receive suspension of deportation are irrelevant to this Court’s decision as

to the granting of certiorari, because the right to receive suspension was

and is, simply, not the issue in either Dumschat or this case. See Resp. at

21-22.

‘ The only case that the Government cites for of its suggestion that

due process cannot attach to a right to seek a benefit is Shvartsman v.

Apfel, 138 F.3d 1196 (7th Cir. 1998). The Seventh Circuit’s opinion, of

course, is not controlling upon this Court, and it is significantly limited in

its analysis, insofar as it entirely fails to mention Dumschat or Ponte.

Nonetheless, even Shvartsman recognized that, upon a sufficient showing

of a property interest, due process protection can attach to particular

procedures for seeking benefits. Jd. at 1200. In that case, the plaintiffs

were not able to show any such property interest, whereas the Petitioners

in this case have presented considerable evidence of fees paid and

worthwhile claims relinquished in order to seek suspension.

siemens

7

b. As The Eleventh Circuit And The District Court

Found, The Petitioners’ Claim Sounds In

Procedural Due Process, Because The Harm

Stems From The Government’s Decision To

Assign A Different Legal Significance To The

Issuance Of An INS Order

The Government attempts to confuse the issue tendered

for this Court’s review by seeking, in contravention of the

findings of both the Eleventh Circuit and the district court, to

-characterize Petitioners’ due process claim as arising from

“substantive,” as opposed to procedural, due process. Resp.

at 21. On its face, this suggestion is belied by the facts of this-

case. Petitioners’ claims for relief, after all, arise from the

Government’s decision to assign a different legal significance

to the Government’s procedural act of sending an Order to

Show. Cause to Petitioners. Pet. App. B at 67a. In other

words, as the district court found, the due-process “analysis . .

.' turns on whether someone is served with a charging

document.” Id. This is plainly a procedural distinction.

The Eleventh Circuit reached the same conclusion and

squarely rejected the Government’s contention. The section

of its opinion dealing with Petitioners’ claims is entitled

“Procedural-Due-Process Ciaim,” and the first sentence

- thereof analyzes “the procedural component of the Fifth

Amendment’s Due Process Clause.” Pet. App. A at 24a, 27a,

28a.

c. The Statatory Change Referred To In The

Government’s Response Did Not Abrogate

Petitioners’ Property Interest, Because They Had

Already Paid Over $1.7 Million In Fees And Had

Abandoned Other Claims For Relief

The Government’s response attempts to suggest that

Petitioners have demonstrated no property interest protectable

by due process. Resp. at 24-25. The district court, however,

made extensive findings establishing protected property

interests. It found that, collectively, individuals in the plaintiff

8

class had paid the Government over $1.7 million in fees

seeking suspension of deportation, before the Government

changed the stop-time' rule and retroactively sought to bar

these Petitioners from pursuing relief. Pet. App. B at 64a. It

also found that many of the Petitioners abandoned other legal

claims in order to pursue suspension. For instance, the district

court noted with regard to one of the named class

representatives that “[bJefore the Immigration Judge reviewed

Ms. Aidenezhad’s application for asylum, Ms. Aidenezhad

withdrew her application for asylum and applied for and was

granted suspension of deportation.” Jd. at 79a. These

substantial payments and sacrifices, undertaken at the

Government’s encouragement, were held in the district court

to have vestec valuable property interests, protectable by

procedural due process, in the 40,000 individuals in the class.

Id.

3. The Government’s Response Fails To Overcome

Petitioners’ Showing That They Have Raised Valid

Estoppel Claims Worthy Of This Court’s Review

a. The District Court Expressly Found That

Petitioners Had Demonstrated A Likelihood Of

Success on The Traditional Elements Of

Estoppel, And The Eleventh Circuit Did Not

Disturb That Holding

The Government’s only response to the Petitioners’

arguments in favor of certiorari on their estoppel claim

attempts to raise an issue that even the Eleventh Circuit did

not find persuasive: the suggestion that the traditional

_elements of estoppel are not present. Resp. at 27-28. This

contention has no record support; the district court analyzed at

great length each of the elements traditionally necessary to an

estoppel claim and found that Petitioners had demonstrated a

likelihood of success on every element. Pet. App. B at 68a-

74a. The Eleventh Circuit apparently agreed, as it left these

findings undisturbed. See, e.g., Pet. App. A at 30a.

9

b. The Government’s Response Fails To Address

Petitioners’ Showing (1) That The Eleventh Circuit

Erred In Concluding That An Element Of

“Affirmative Misconduct’ Was Required By This

Court’s Precedent And (2) That It Misapplied That

Element In Conflict With The Law In Other Circuits

The Government apparently concedes the Petitioners’

central argument for certiorari on their estoppel claim by

offering no response. As Petitioners pointed out, the Eleventh

Circuit overturned the injunction as to Petitioners’ estoppel

claim on the sole grounds that, as a matter of first impression

in that Circuit, this Court’s jurisprudence required a showing

of “affirmative misconduct” to estop the Government. Pet. at

16. Despite the absence of any findings by the district court,

the Eleventh Circuit found that element lacking in this case as

a matter of law.

As a threshold matter, Petitioners demonstrated that this

Court’s precedent did not require “affirmative misconduct” by

the Government beyond the traditional elements of estoppel.

Pet. at 17. Rather, this Court has explicitly declined to adopt

an affirmative-misconduct element. Office of Personnel

Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).

Even if some form of “affirmative misconduct” were

necessary to estop the Government as a general rule,

Petitioners further showed that the Eleventh Circuit’s

application of that element was both erroneous under the

circumstances of this case and in conflict with the manner in

which several other Circuits had applied it. The Government

did not address this point in its Response. Simply, the

Second, Third, and Ninth Circuits had defined “affirmative

misconduct” as including omissive conduct (such as the INS’

failure to advise the Petitioners in this case) where an

individual loses a right to benefits. See Pet. at 17-18. The

First and Ninth Circuits additionally based the determination

of affirmative misconduct upon a factual evaluation, which

the Eleventh Circuit ignored by ruling, in the absence of

10

factual findings by the district court, that affirmative

misconduct was not established as a matter of law. See Pet. at

19. Earlier, the. Seventh Circuit ruled that affirmative

misconduct may be found even if the Government did not

violate its own applicable regulations. See id. These variant

standards produce sharply differing results. They make

certiorari as to Petitioners’ estoppel claim appropriate in the

interest of clarity, fairness and uniformity. Barrett v. United

States, 423 U.S. 212, 215 (1976) (certiorari appropriate in

case revealing “overtones of conflict” among the Circuits).

CONCLUSION

For the foregoing reasons, and for all of the reasons set

forth in their Petition, Petitioners respectfully request that a

writ of certiorari be issued to the U.S. Court of Appeals for

the Eleventh Circuit.

Of Counsel:

Ira J. Kurzban

KURZBAN, KURZBAN,

WEINGER & TETZELI

2650 S.W. 27th Ave.

2nd Floor

Miami, Florida 33133

(305) 444-0060

(305) 444-3503 (fax)

DATE: May 26, 2000

11

Respectfully submitted,

Robert E. Juceam*

Jay D. Majors

Gejaa Gobena

FRIED, FRANK, HARRIS, |

SHRIVER & JACOBSON

1001 Pennsylvania Ave. NW

Suite 800 |

Washington, DC 20004 |

(202) 639-7000

(202) 639-7003 (fax)

Counsel for the Petitioners

*Counsel of Record