Ukrainian-American Bar Ass'n, Inc. v. Baker, UKRAINIAN-AMERICAN
| Decision Date | 30 March 1990 |
| Docket Number | Nos. 88-5337,UKRAINIAN-AMERICAN,88-5338,s. 88-5337 |
| Citation | 893 F.2d 1374,282 U.S.App.D.C. 225 |
| Parties | , 58 USLW 2433 BAR ASSOCIATION, INC., et al., Appellants, v. James A. BAKER, III, Secretary of State, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 85-03487).
Andrew Fylypovych, of the bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of the Court, with whom Michael Waris, Jr., was on the brief, for Ukrainian-American Bar Ass'n, Inc., et al.
R. Craig Lawrence, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, Asst. U.S. Atty. and James G. Hergen, Asst. Legal Advisor, Dept. of State, were on the brief, for James A. Baker, III, Secretary of State, et al.
Before BUCKLEY, D.H. GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
The district court ordered the Secretary of State and the Immigration and Naturalization Service to give Soviet and East Bloc aliens seeking asylum in the United States a notice advising them of the offer of the Ukrainian-American Bar Association (UABA) to provide them free legal advice. See Ukrainian-American Bar Ass'n v. Shultz, 695 F.Supp. 33 (D.D.C.1988). In these cross-appeals, UABA maintains that the notice should include certain additional language and the Government maintains that the courts lack jurisdiction of this cause and, in the alternative, that the Government has no obligation to provide any information to would-be asylees about UABA's offer of legal assistance. Finding no bar to jurisdiction, we hold that the district court erred on the merits in granting relief.
This case arises from the dramatic attempt by a Ukrainian merchant seaman, Myroslav Medvid, to obtain political asylum in the United States. On the evening of October 24, 1985, Medvid jumped off a Soviet grain ship while it lay at anchor in the Mississippi River near New Orleans. He swam to shore, asked to be taken to the police, and was eventually brought to the local office of the U.S. Border Patrol. An official there telephoned an INS-certified Ukrainian interpreter, who translated a forty-five minute conversation between Medvid and the authorities. In the course of that conversation, Medvid was given a standard Miranda warning, including the advice that he was entitled to an attorney and that an attorney would be provided for him if he could not afford one. Medvid did not take up the offer of legal assistance.
The agent who interviewed him reported that Medvid "claims that he jumped ship in the United States for political and moral reasons," but the Border Patrol did not then pursue the possibility that Medvid was entitled to asylum. Instead, it returned him to Soviet custody shortly after the interpreted telephone interview. On October 28, the Coast Guard took Medvid from the Soviet ship to a U.S. Naval Base to be interviewed again. He was apparently returned to his ship the next day.
Also on October 28, Orest Jejna, an attorney and one of the plaintiffs below, learned of this incident from a news report. He contacted the State Department, the Border Patrol, and the INS that day, offering to assist Medvid in seeking political asylum. The Government rejected his offers. Plaintiff Julian Kelas likewise contacted the INS and the State Department and received the same response.
The UABA, Jejna, and Kelas filed this suit on November 1 in order to prevent Medvid's ship from departing with him aboard. The district court denied that relief and, after a highly expedited appeal, this court affirmed. Ukrainian-American Bar Ass'n, Inc. v. Shultz, No. 85-6062, mem. op. (D.C.Cir. Nov. 5, 1985). The district court has since found that when the ship left U.S. waters on November 9, Medvid had "stated that he did not wish to seek asylum any more."
Plaintiffs thereafter amended their complaint to allege that it is the Government's policy to deny them access to potential political asylees such as Medvid, and that that policy has "denied the plaintiffs their rights of access to Medvid and others like him under the First Amendment to counsel such individuals regarding their Constitutional and statutory right to apply for political asylum." Plaintiffs sought, inter alia,
that the governmental defendants be ordered to notify the plaintiffs each and every time a person from the USSR seeks or appears to be seeking, or when there is a question whether such a person is seeking political asylum in the U.S. and that access to said individual be granted immediately.
The district court acknowledged the plaintiffs' claimed first amendment right--in essence, a "right to counsel others"--but granted them only part of the relief they sought. It ordered the INS to forward plaintiffs' offer of legal assistance to each person seeking asylum from a Soviet or East Bloc country, but it did "not require, as plaintiffs originally requested, the government to notify the UABA every time a Ukrainian seeks political asylum here or to provide access without the individual specifically requesting legal assistance."
The Government argues that the district court had no jurisdiction to adjudicate the UABA's claims because: there is no live case or controversy between the parties; the plaintiffs lack standing; and the issue plaintiffs raise is a non-justiciable political question. Alternatively, even if the courts have jurisdiction, the Government suggests that we should stay our hand because the case has become too attenuated. We address each of these threshold issues before considering the merits.
In asserting that no live case or controversy remains, the Government proceeds from a mistaken view of the nature of plaintiffs' amended complaint and of the district court's findings. The district court found, on the bases of the Medvid incident and of the affidavit of a State Department official, that it is the Government's policy to deny lawyers access to an alien in Medvid's situation. The Government does not now deny the existence of such a policy; i.e., it does not assert that it would grant plaintiffs the access they request were the same incident to occur today, or if it would not, that the reason would be some different policy than the one of which plaintiffs have complained. Instead, the Government claims that because Medvid is long gone from the United States, there is no longer any subject matter over which to dispute.
That the particular situation that precipitated the constitutional challenge to the Government's policy is no longer "live" is not determinative, however. See Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974); Allende v. Shultz, 845 F.2d 1111, 1115 n. 7 (1st Cir.1988). The Government's failure to contest the existence of the alleged policy precludes it from prevailing in the argument that the controversy became moot once Medvid left the country; the complaint challenges the Government's policy, not merely the Government's handling of the Medvid incident.
The Government argues in the alternative that the Medvid case was a fluke. It concedes that INS Operating Instruction 208.8, which establishes a procedure for dealing with "immediate action cases" involving nationals of Soviet and East Bloc countries, was violated in the Medvid case, and it tries to use that concession as evidence that the Medvid facts are unique and therefore an insufficient basis upon which to predicate generic relief. The Government does not claim, however, that plaintiffs would have been granted access to Medvid had the Operating Instruction been followed, much less that they will be granted access to similarly situated individuals in the future. Accordingly, we have no basis upon which to doubt the district court's finding that it is the Government's policy to deny lawyers access to a potential asylee from a Soviet or an East Bloc country.
The Government argues that the court should decline to adjudicate the present dispute because it has become too attenuated with time: "The unique incident involving Seaman Medvid has long since past, and the UABA plaintiffs have failed to identify any remotely comparable occurrence." Under the doctrine of attenuation, a court may indeed, upon prudential grounds, "refuse to entertain a suit which, while 'not actually moot, is so attenuated that considerations of prudence and comity ... counsel the court to stay its hand, and to withhold relief it has power to grant.' " Community for Creative Non-Violence v. Hess (CCNV), 745 F.2d 697, 700 (D.C.Cir.1984) (quoting Chamber of Commerce v. United States Dept. of Energy, 627 F.2d 289, 291 (D.C.Cir.1980)). This doctrine counsels abstention when "the defendant voluntarily has discontinued the challenged activity." Id. The Government's attempt to invoke the doctrine is unavailing here, however, because it does not assert that it will permit access to aliens such as Medvid in the future. In other words, the case is not too attenuated to command our attention for the same reason that it is not moot: the policy has not changed.
In order to establish his standing to challenge a particular act or policy, a litigant must " 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' and that the injury 'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision.' " Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982) (citations omitted). So our first inquiry is into the...
To continue reading
Request your trial
-
Advocacy Ctr. For the Elderly v. La. Dep't of Health, Civil Action No. 10-1088
...given the Supreme Court's discussion in Gerstein ). 90 See also Olmstead, 527 U.S. at 594 n. 6, 119 S.Ct. 2176. 91 893 F.2d 1374 (D.C.Cir.1990) (D. Ginsburg, J.). 92 Id. at 1377. 93 Fed.R.Civ.P. 8(a). 94 Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 547, 127 S.Ct. 1955). 95 Id. at ......
-
Barapind v. Reno, Civ-F-98-5583 OWW.
...abuse," aliens seeking initial admission are entitled to no constitutional due process protection); Ukrainian-American Bar Association v. Baker, 893 F.2d 1374, 1382 (D.C.Cir.1990) ("an seeking initial admission to the United States requests a privilege and has no constitutional rights regar......
-
Haitian Refugee Center, Inc. v. Baker, s. 91-6099
...not require the Government to assist the holder of a constitutional right in the exercise of that right. Ukrainian-American Bar Ass'n. v. Baker, 893 F.2d 1374, 1381 (D.C.Cir.1990); see also DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.......
-
American Immigration Lawyers Ass'n. v. Reno, No. CIV.A. 97-0597(EGS) (D. D.C. 8/20/1998)
...plaintiffs have standing to raise their First Amendment claim. See Wood Defs.' Mot. at 21 n. 8 (citing Ukrainian-American Bar Ass'n v. Baker, 893 F.2d 1374, 1382 (D.C.Cir. 1990)). ii) Associational Standing To satisfy the Article III requirements for associational standing, each organizatio......
-
Charting a Course Toward a Legal Challenge in At-sea Interdiction and Custody Scenarios: Habeas Corpus as a Light on the Horizon
...not require the Government to assist a third party in exercising their right of associa-tion); Ukrainian-American Bar Ass’n v. Baker, 893 F.2d 1374, 1337 (D.C. Cir. 1990) (holding that “the Government does not infringe a third party’s first amendment right to associate with an alien by hol......
-
Mooting Unilateral Mootness.
...461 U.S. 95,97-98 (1983). (119.) Id. at 101, 109. (120.) Id. at 116 (Marshall, J., dissenting). (121.) Ukrainian-Am. Bar Ass'n v. Baker, 893 F.2d 1374, 1377 (D.C. Cir. 1990). But the D.C. Circuit only extends this exception when litigants challenge an underlying policy, not the handling of ......
-
Commentary: Attorneys have no right to consult with witnesses.
...Bar Association, Inc. v. Christopher, 43 F.3d 1412, 1429 & n.21 (11th Cir. 1995); Ukrainian-American Bar Association v. Baker, 893 F.2d 1374, 1381-82 (D.C. Cir. Viewpoint Discrimination The court also rejected First Defense's argument that, even if police can exclude everyone from the i......