Haitian Refugee Center v. Civiletti, 79-3690

• Citation: 614 F.2d 92
• Decision Date: 21 March 1980
• Docket Number: No. 79-3690,79-3690
• Parties: HAITIAN REFUGEE CENTER et al., Plaintiffs-Appellees, v. Benjamin R. CIVILETTI, Attorney General of the United States, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 92

614 F.2d 92

HAITIAN REFUGEE CENTER et al., Plaintiffs-Appellees, v. Benjamin R. CIVILETTI, Attorney General of the United

States, et al., Defendants-Appellants.

No. 79-3690.

United States Court of Appeals,

Fifth Circuit.

March 21, 1980.

Daniel E. Fromstein, Atty., Crim. Div., U. S. Dept. of Justice, Rex Young, Atty., Immigration & Naturalization Service, Dept. of Justice, Washington, D. C., for defendants-appellants.

Peter Schey, Legal Services Aliens' Rights Program, Los Angeles, Cal., Ira Kurzban, Miami, Fla., for plaintiffs-appellees.

Bruce J. Winick, Coral Gables, Fla., for amicus American Civil Liberties Union Foundation of Florida.

Brian R. Hersh, Miami, Fla., for amicus Assn. of Immig. and Nationality Lawyers, S. Fla. Chapter.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, GARZA and RANDALL, Circuit Judges.

PER CURIAM:

This appeal springs from a putative class action brought in the Southern District of Florida on May 9, 1979, questioning on constitutional and statutory grounds practices and procedures allegedly followed by the defendants in handling and processing applications of Haitian nationals who seek political asylum in the United States. Plaintiffs asked declaratory and injunctive relief and relief in the nature of mandamus.

On July 23, 1979, the individual plaintiffs applied for a temporary restraining order enjoining defendants from removing plaintiffs and proposed class members from the United States and from requiring plaintiffs and proposed class members to appear in deportation hearings which, it was alleged, were being conducted without due process. The district court conducted a conference with counsel on July 23 at which counsel for defendants agreed to the entry of an order preserving the status quo. Counsel for defendants reiterated their agreement in a letter to the district judge on July 24. On July 25, the district court entered an "Order Granting Injunctive Relief." The order recited that it was based upon the agreement of the parties. It restrained the Commissioner of the Immigration and Naturalization Service from transporting out of the United States various Haitian nationals or otherwise executing final orders of deportation or voluntary departure entered against them. The purpose of the order was stated as follows:

This order is entered to preserve the status quo in this matter and to insure that potential class members are not removed by INS from the jurisdiction of this Court pending a further hearing in this action.

The July 25 order set plaintiffs' motion for a preliminary injunction for hearing September 8, 1979. At the hearing, actually conducted September 10-12, the taking of testimony was not completed. The matter was continued to October 9 for further hearing, and defendants agreed that the July 25 order would continue in effect. Pursuant thereto the court entered, on September 12, its second injunctive order. ¹ With small variations not material to our decision it simply continued the July 25 order in effect. Before the continued hearings were completed in the district court the defendants filed this appeal under 28 U.S.C. § 1292(a)(1), seeking to overturn the September 12 preliminary injunction. ²

The defendants cannot appeal from an injunction to which they agreed. In re 4145 Broadway Hotel Co., 100 F.2d 7 (7th Cir. 1938); See Swift & Co. v. U. S., 276 U.S. 311, 324, 48 S.Ct. 311, 72 L.Ed. 587, 596 (1928); U. S. v. Babbitt, ...