Sannon v. U.S., 80-5088

• Citation: 631 F.2d 1247
• Decision Date: 04 December 1980
• Docket Number: No. 80-5088,80-5088
• Parties: Marie SANNON et al., Petitioners-Appellees, v. UNITED STATES of America et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1247

631 F.2d 1247

Marie SANNON et al., Petitioners-Appellees, v. UNITED STATES of America et al., Respondents-Appellants.

No. 80-5088.

United States Court of Appeals Fifth Circuit.

Dec. 4, 1980.

Daniel E. Fromstein, Atty., Criminal Div., U. S. Dept. of Justice, Washington, D. C., Rex Young, Atty., Immig. & Nat. Service, U. S. Dept. of Justice, Washington, D. C., for respondents-appellants.

Ira Kurzban, National Emergency & Civil Liberties, Bierman, Sonnett, Beiley & Osman, Donald I. Bierman, Almon & Brodsky, Michael Brodsky, Miami, Fla., for petitioners-appellees.

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

Before RONEY, HILL and FAY, Circuit Judges.

JAMES C. HILL, Circuit Judge:

The government asserts in this appeal that a federal district court has exceeded its authority by requiring the Immigration and Naturalization Service (INS) to publicize certain new regulations more extensively than the notice provisions of the Administrative Procedure Act, see 5 U.S.C. § 553 (1976), would mandate. Determining that all named petitioners have received the relief they sought in this lawsuit and regarding class-wide relief as constitutionally impermissible under the facts, we remand the case to the district court with instructions to vacate the existing injunction ¹ without provision, ² and to dismiss the case as moot.

I. Facts and Procedural History

On April 4, 1974, a group of named Haitian refugees filed the lead lawsuit in these consolidated cases challenging by way of habeas corpus INS orders denying them entry into the United States. In the initial years of the lawsuit, the number of named petitioners grew as additional parties successfully moved the district court for joinder. ³ The essence of petitioners' arguments was that the immigration judges at petitioners' exclusion hearings ⁴ improperly narrowed the scope of the proceedings and improperly refused to consider petitioners' claims for asylum. While petitioners prevailed initially in the district court, see Sannon v. United States, 427 F.Supp. 1270 (S.D.Fla.1977), this Court vacated that decision and remanded, see 566 F.2d 104 (5th Cir. 1978), the case for consideration in light of Pierre v. United States, 547 F.2d 1281 (5th Cir. 1977), cert. granted, vacated and remanded for consideration of mootness, 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977). Following the remand of Sannon, the district court enjoined the INS from holding exclusion hearings involving Haitians until final disposition of the case. After an initial misfire ⁵ properly promulgated INS regulations, see 44 Fed.Reg. 21,253-21,259 (1979), bearing on this litigation became effective. These regulations ensure that refugees wishing political asylum in this country will be permitted to raise asylum claims in their exclusion hearings. On June 14, 1979, the district court announced its intention to dismiss these cases as moot since petitioners' objection, that their political asylum claims went unconsidered by immigration judges at their exclusion hearings, was cured by the new regulations. The district court made clear, however, by order dated July 25, 1979, that the injunction against further exclusion hearings would continue until the entry of a final order of mootness. While some confusion ensued in the interim among government counsel ⁶ as to precisely what motions or affidavits had or had not been filed, on January 7, 1980 the district court issued its final order. On April 11, 1980, the district court denied an earlier filed government motion for relief under Fed.R.Civ.P. 60(b), but entered an order correcting clerical mistakes contained in the January 7 final order. The government perfected a timely appeal to this Court.

The district court's order declared these cases moot and dissolved the October 11, 1978 injunction with the provision that the new federal regulations be implemented by the INS in a specific manner. The order stated that the petitioners in these cases "have an absolute right to a hearing on their claims for political asylum and (that) no action to exclude them can be finalized until they have been given a full, fair and impartial evidentiary hearing on their claims for political asylum before an Immigration Judge." Record, vol. 7, at 71. Moreover, the court required the INS to alert all potential Haitian asylum claimants of the new regulations by means of a notice, in English and Creole, contained in Schedule A of the order. This notice was to be published weekly for six months in more than ten newspapers, broadcast nightly for six months over more than ten radio stations, broadcast weekly for six months over television stations, and posted in more than 22 designated grocery stores, community centers and churches. Schedule B, §§ 5, 6 of the district court's order further required the INS: (1) to provide the Schedule A written notice to all Haitians who appear in INS offices; (2) to provide such written and oral notice to all detained Haitians at least 36 hours in advance of any final deportation action; and (3) to provide such written and oral notice "to all Haitians known to the INS who arrive and/or seek entry into the U.S." when they first appear before INS officials. It is this district court order, as corrected, and its conditional injunction, that the government has appealed and which we instruct the district court to vacate and dismiss.

II. Named Petitioners

Turning to the effect of the April 10, 1979 regulations upon the claims advanced by the named petitioners, we note at the outset several well established restraints on the exercise of federal jurisdiction. The federal courts are said to be of "limited jurisdiction," see County Court of Ulster County, N. Y. v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). The Constitution of the United States extends the "judicial Power" of the federal government only to "Cases" or "Controversies." U.S.Const., art. III, § 2. The "case or controversy" requirement demands, inter alia, that a cause of action before a federal court present a "justiciable" controversy. Moreover, "no justiciable controversy is presented ... when the question sought to be adjudicated has been mooted by subsequent developments...." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968) (footnote omitted). See also Benton v. Maryland, 395 U.S. 784, 788, 89 S.Ct. 2056, 2059, 23 L.Ed.2d 707 (1969). Clearly, the federal courts require vitality of a lawsuit at all stages of the action, not merely at its institution. Defunis v. Odegaard, 416 U.S. 312, 319, 94 S.Ct. 1704, 1707, 40 L.Ed.2d 164 (1974); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973); Carr v. Saucier, 582 F.2d 14, 16 (5th Cir. 1978); Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355 (5th Cir. 1976), cert. denied, 430 U.S. 949, 97 S.Ct. 1588, 51 L.Ed.2d 797 (1977); McDonald v. Oliver, 525 F.2d 1217, 1255 (5th Cir.), cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976). Striking at the very heart of federal subject matter jurisdiction, ⁷ a mootness issue quite clearly can be raised sua sponte if not addressed by the parties. State of Alabama ex rel. Baxley v. Woody, 473 F.2d 10, 12-13 (5th Cir. 1973).

In this appeal, we observe that the named petitioners have sought from the outset to present their claims for political asylum to an immigration judge. Under the regulations that became effective on April 10, 1979, see 44 Fed.Reg. 21,253-21,259 (1979), each named petitioner in the cases before us has the right to exactly the hearing he sought. That newly promulgated regulations immediately applicable to litigants in a given case can have the effect of mooting what once was a viable case is without doubt. Carr v. Saucier, 582 F.2d 14 (5th Cir. 1978) (amendment of federal regulation under attack may moot controversy); Jeffers v. Louisiana State Univ., 511 F.2d 131 (5th Cir. 1975) (amendment of university regulation under constitutional attack moots controversy); Logan v. West Orange-Cove Independent School District, 440 F.2d 1076 (5th Cir. 1971) (repeal of school regulation under constitutional attack moots controversy). ⁸ Furthermore, the government has articulated quite clearly that "(a)ll petitioners in these three consolidated habeas corpus cases now are entitled" to hearings "on their asylum claims" before immigration judges. Appellant's Reply Brief at 17. Indeed, the government concedes this to be required by the new regulations, 8 C.F.R. § 236.3 (1980). Accordingly, as to the named petitioners there exists no viable controversy over Paragraph A ⁹ of the district court's order, and the appeal therefrom is moot.

Paragraph B ¹⁰ of the district court's order, as supplemented by the extensive notice requirements of Schedules A & B, essentially requires the INS to inform for a period of six months potential political asylum claimants of their new rights under the April 10, 1979 regulations. Unable to convince this Court to stay the district court's final order pending appeal, the government allegedly has complied with Paragraph B, Sched. A & Sched. B, pts. 1-4, for the requisite six months. ¹¹ Accordingly, the appeal from those portions of the order is moot by the passage of time.

The remaining portions of the district court order, which grant mandatory injunctive relief to Haitians who are not named as petitioners in this action, bring into issue the appropriateness of "class"-wide relief in this action. It is to these concerns that we now turn.

III. Class-Wide Relief

The absence of a class certification order by the district court notwithstanding, petitioners assert on appeal that this litigation has been conducted from the outset as a class action and should be recognized as such by this Court. ¹² Conceding that they never moved the trial court for a certification order throughout six litigious years, petitioners nonetheless maintain that class-wide relief is...