Chiles v. Thornburgh, No. 86-5926

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before KRAVITCH and CLARK; CLARK
• Citation: 865 F.2d 1197
• Parties: Lawton CHILES, Jr., Plaintiff-Appellant, Bob Martinez, Metropolitan Dade County, et al., Intervenors-Appellants, v. Richard THORNBURGH, Attorney General of the United States, et al., Defendants-Appellees.
• Docket Number: No. 86-5926
• Decision Date: 16 February 1989

Page 1197

865 F.2d 1197 13 Fed.R.Serv.3d 1197 Lawton CHILES, Jr., Plaintiff-Appellant,
Bob Martinez, Metropolitan Dade County, et al., Intervenors-Appellants,
v.
Richard THORNBURGH, Attorney General of the United States,
et al., Defendants-Appellees. No. 86-5926. United States Court of Appeals,
Eleventh Circuit. Feb. 16, 1989.

Page 1200

Parker D. Thomson, Thomson Zeder Bohrer Werth & Razook, Cloyce L. Mangas, Jr., Miami, Fla., for Lawton Chiles, Jr.

Gregory C. Smith, Tallahassee, Fla., for Gov. Bob Martinez.

William F. Hamilton, Holland & Knight, Miami, Fla., for Krome Temporary Detainees X and Y, etc.

Thomas H. Robertson, Dade County Atty's Office, Miami, Fla., for Metropolitan Dade County.

Dexter W. Lehtinen, U.S. Atty., Robyn J. Hermann, Mayra Reyler Lichter, Linda Collins Hertz, Peter Prieto, Asst. U.S. Attys., Miami, Fla., for Edwin Meese, et al.

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

Before KRAVITCH and CLARK, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

CLARK, Circuit Judge:

In November of 1985, Lawton Chiles, a United States Senator from Florida, filed an action against the Attorney General of the United States and several other Department of Justice (DOJ) officials, and the Secretary of the Department of Defense (DOD), alleging that the federal government was operating Krome Detention Center (Krome), a federal facility located in

Page 1201

Dade County, Florida, illegally. After Senator Chiles' complaint was filed, Dade County and Bob Martinez, the Governor of Florida, were granted leave to intervene and filed complaints. ¹ Several Krome detainees, individual homeowners living near Krome, and a Homeowners' Association (the proposed intervenors) were not granted leave to intervene.

The district court dismissed the complaints, holding that all the plaintiffs and most of the proposed intervenors lacked standing and that the issues raised by the complaints presented nonjusticiable political questions. For the reasons which follow, we affirm in part, reverse in part, and remand the case to the district court.

I.

The facts set out below are taken from the verified complaints of Senator Chiles, Governor Martinez, and Dade County. See Record, Vol. 1 at Tabs 1, 17, 28. Because the government mounted a facial attack on the plaintiffs' complaints, we must of course accept the allegations in the complaints as true and construe the complaints in favor of the plaintiffs for purposes of our standing analysis. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).

A.

Krome is a minimum-security, short-term Bureau of Prisons (BOP) facility. Since the Mariel Boatlift of 1980, ² DOJ officials have used Krome to detain aliens awaiting processing, exclusion, or asylum. In 1981, several high-ranking DOJ officials, including the Attorney General and the Commissioner of the Immigration and Naturalization Service (INS), testified before Congress that Krome was not a long-term detention facility for aliens.

In 1981, at Senator Chiles' insistence, Congress enacted Pub.L. No. 97-92, Sec. 128, 95 Stat. 1198 (1981), which provides:

The Attorney General shall exercise his best efforts to ensure that none of the funds appropriated by this joint resolution may be obligated or expended after March 1, 1982, for the detention of any entrant, any applicant for political asylum or for refugee status, or any other alien which would cause the total number of aliens to exceed five hundred and twenty-five at the facility known as Krome[.]

When he questioned DOJ officials about the status of Krome in 1983, Senator Chiles was assured that Krome remained a temporary detention facility and that a permanent long-term detention facility would be ready by 1985.

Despite their assurances, DOJ officials used Krome as a long-term detention facility to hold large numbers of aliens, including convicted felons, indefinitely. Many of the felons held at Krome were aliens who had finished serving jail sentences for state and federal offenses committed in the United States and were waiting determination of their status by INS. In October of 1985, over forty alien felons rioted and escaped from Krome. Soon afterwards, the INS District Director stated publicly that the alien felons had to be removed from Krome for the protection of the other aliens. Although DOJ officials recognized that events such as the 1985 escape were the result of their policy of housing felons with nonviolent aliens, they did not transfer most of the felons from Krome. By 1986, the felons at Krome had formed gangs which preyed upon nonviolent aliens and regularly assaulted guards. DOJ officials hired improperly trained private security guards to protect the nonviolent aliens and maintain control of Krome.

Page 1202

B.

The procedural history of this case is important to an accurate understanding of what is at issue on appeal. In 1985, Senator Chiles filed his complaint. Alleging the facts above, the complaint sought several forms of relief: (1) a declaratory judgment that the government's affirmative misrepresentations estopped the government from operating Krome as other than a minimum security, short term facility with a cap of 525 persons, none of whom would be felons ("the estoppel claim"); (2) declaratory and injunctive relief relating to the responsibilities and duties of DOJ, BOP, and INS with respect to Krome; ³ and (3) a writ of mandamus ordering the government to (a) remove all alien felons from Krome and transfer them to medium security or maximum security federal facilities; (b) obey the cap on the number of aliens which can be detained at Krome; and (c) limit detention of aliens at Krome to short-term minimum security processing stays.

Dade County and Governor Martinez sought to intervene. Their complaints alleged the same facts and sought similar relief as Senator Chiles except that they did not assert a separate and distinct equitable estoppel claim. The district court allowed them to intervene. Record, Vol. 1, Tab 45. Subsequently, three additional groups sought to intervene: detainees X and Y individually and as representatives of a class of non-felon detainees, the Kendall Federation Homeowners Association, and two individual homeowners, David Lowry and Dorothy Cissel. The intervenors sought the same relief as Senator Chiles. In an order of dismissal, the district court ended the lawsuit. The court found that Senator Chiles, the Governor, and Dade County did not have standing. He also denied the proposed intervenors right to intervene on the grounds that the detainees had adequate recourse through habeas corpus and that the homeowners and Homeowners Association had failed to allege an injury from the operation of Krome. Finally, the district court held that the case presented a nonjusticiable political question because it involved policy decisions which were entrusted to the Executive branch.

All plaintiffs and proposed intervenors appealed. The procedural posture of the case, therefore presents only the question of the justiciability of the suit, both as to whether the plaintiffs have standing and whether the issues are justiciable. When considering standing, we do not assess the merits of the underlying cause of action because "standing in no way depends on the merits of the plaintiffs contention that the particular conduct is illegal." Warth v. Seldin, 422 U.S. at 500, 95 S.Ct. at 2206. Indeed, just as we accept the validity of the plaintiff's factual assertions, we must also accept the validity of the plaintiff's theory of a cause of action, including the theory that estoppel lies against the government when acting in its sovereign capacity, if it engages in affirmative misconduct. Goldwater v. Carter, 617 F.2d 697, 702 (D.C.Cir.) (citing Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206), vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979).

C.

The merits of the underlying claim are not irrelevant on appeal. The merits are relevant to the question of mootness--i.e. whether a live case and controversy still exists. It is not enough that a real controversy existed when the lawsuit was filed, the controversy must be a "live" controversy throughout all stages of the case. Burke v. Barnes, 479 U.S. 361, 362-64, 107 S.Ct. 734, 736, 93 L.Ed.2d 732 (1987) If the legal or factual basis for the cause of action no longer exists, the case may be moot. In this case, both factual and legal developments create an issue as to whether the entire case or portions of it are moot.

1.

Since we heard oral argument, Congress passed Pub.L. No. 100-202, which states

Page 1203

[E]ffective February 28, 1988, none of the funds appropriated herein shall be available to detain aliens convicted of a felony under State or Federal law at the Krome processing center unless such center has been designated a security level three or higher level correctional facility.

Pub.L. No. 100-202, 101 Stat. 1329 (1987). The INS then elected to remove alien felons from Krome in lieu of losing funding or being required to upgrade Krome to a security level three facility. See INS' Krome Detention Center: Data Show No Felon Record, 88 G.A.O. Rep. 62 (1988); Last Felons Moved Out of Krome, Miami Herald, Feb. 29, 1988, at B1, col. 4. Since that time, however, it seems that INS has begun to convert Krome into a medium security facility. See Work to Start to Make Krome More Secure, Miami Herald, April 2, 1988, at D3, col. 2.

These intervening events, however, are not sufficient to render this case moot. The removal of the felons and upgrading of the facility was in reaction to the passage of Pub.L. No. 100-202. Since, as pointed out below, the statute has recently lapsed, it is quite possible that the defendants may decide to place felons back at Krome, and/or discontinue the efforts to upgrade the facility. Since "[i]ntervening events have not 'irrevocably eradicated the effects of...