Dinh v. Reno

• Decision Date: 18 November 1999
• Docket Number: GARCIA-PEREZ,PALAGANAS-SUAREZ,No. 98-1312,98-1312
• Citation: 197 F.3d 427
• Parties: (10th Cir. 1999) TUONG HUAN VAN DINH; OSCAR; MESERET ANTANAW WASSIE; BENIGNO; LOI NGUYEN; JUAN CISNEROS; CELESTE FERGUSON; JANE DOE and JOHN DOE as UNNAMED DETAINEES AT WCC/INS, individually, and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. JANET RENO, Attorney General, United States of America, in her official and individual capacities; JOSEPH GREENE, District Director, United States Immigration and Naturalization Service, Denver, Colorado, in his official and individual capacities, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 427

197 F.3d 427 (10th Cir. 1999)

TUONG HUAN VAN DINH; OSCAR GARCIA-PEREZ; MESERET ANTANAW WASSIE; BENIGNO PALAGANAS-SUAREZ; LOI NGUYEN; JUAN CISNEROS; CELESTE FERGUSON; JANE DOE and JOHN DOE as UNNAMED DETAINEES AT WCC/INS, individually, and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. JANET RENO, Attorney General, United States of America, in her official and individual capacities; JOSEPH GREENE, District Director, United States Immigration and Naturalization Service, Denver, Colorado, in his official and individual capacities, Defendants-Appellees.

No. 98-1312

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 18, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. D.C. No. 98-K-926.

Jim Salvator, Lafayette, Colorado, for Plaintiffs-Appellants.

Linda A. McMahan, United States Attorney, and Michael E. Hegarty, Assistant U.S. Attorney, Denver, Colorado, and David J. Kline, Deputy Director, and William J. Howard, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Defendants-Appellees.

Before TACHA, McKAY, and MURPHY, Circuit Judges.

McKAY, Circuit Judge.

Plaintiffs-appellants appeal from the district court's denial of attorney's fees and costs for which they applied pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A).¹ Our jurisdiction arises under 28 U.S.C. § 1291. Because we conclude that the district court lacked subject matter jurisdiction over appellants' underlying Bivens² class action suit, we remand for entry of an order dismissing the case with prejudice.³

I. Background Facts and Procedures

Plaintiff Tuong Huan Van Dinh⁴ is an alien who had permanent resident alien status until he was convicted of a criminal act and was sentenced to deportation. See Appellees' Supp. App. at 11, 13. Tuong apparently did not appeal the order of deportation to the Board of Immigration Appeals, see id. at 13-14. Instead he filed a habeas corpus action in federal district court, individually and on behalf of others similarly situated, challenging the constitutionality of holding deported aliens for an indeterminate time when their country of origin refuses to allow them reentry. Cf. Galaviz-Medina v. Wooten, 27 F.3d 487, 491-94 (10th Cir. 1994) (noting, under former immigration statutes, that habeas petitions are proper vehicle for constitutional claims when alien does not appeal from a final order of deportation but raises constitutional concerns arising from subsequent decisions). The habeas action was filed in March 1998, is numbered in the district court as No. 98-CV-652, and is hereinafter referred to as "the habeas action."

Tuong was incarcerated in a facility in Aurora, Colorado, pending deportation. On April 23, 1998, Tuong and other aliens confined at the Aurora facility were informally notified that "there was a 'distinct probability'" that all Immigration and Naturalization Service (INS) prisoners at that facility would be moved because the INS's contract with the facility would expire on April 28 and there was an impasse in extension negotiations. See Appellant's App. at 111 (Class Action Complaint). On April 24, sixty-five "unknown plaintiffs were transferred to various unknown locations." Id.

On April 24, Tuong filed an amended application for habeas corpus. See id. at 13. He challenged as unconstitutional the possibility of his transfer, alleging that he would be denied his right to counsel if moved to a remote area, and requested the court to either issue a writ directing the INS to place him in another Denver-area facility or order the INS to place him on bail. See id. at 8, 17. The same day, he also filed a motion to maintain a class action for the amended application, see id. at 22, and a motion for a temporary restraining order (TRO) that requested the same remedies as the amended application, see id. at 32, 37.

On April 24, the court issued a TRO ordering that Tuong and "the class" not be transferred out of the Denver area before April 27. In the event no stipulation was reached between the parties, the court set a hearing for April 27 on the matters. See id. at 102. On April 27, in its response to Tuong's motions, the INS challenged the court's subject matter jurisdiction but also asserted that neither Tuong nor any other alien with matters pending before the federal courts would be transferred out of the Denver area. See id. at 46-47, 73-74. It also stated that the INS would "transport back to Colorado as necessary any individuals currently represented over whom the court has jurisdiction and whose presence is required by the immigration court or any federal court." Id. at 74.

The day of the hearing, Tuong and the other named plaintiffs filed a Bivens class action complaint (numbered in the district court as No. 98-CV-926) which asserted jurisdiction based on 28 U.S.C. § 1331. The complaint requested injunctive relief restraining all alien transfers until local counsel had an opportunity to interview their clients and potential pro bono clients, injunctive relief restraining transfer outside the Denver area of those aliens with an established attorney-client relationship (or, in the alternative, ordering that those aliens be released on bail or on their own recognizance), and costs and attorney fees. See id. at 113. Along with the complaint, plaintiffs filed a motion to certify it as a class action, a motion to consolidate the suit with Tuong's habeas action, and another motion for TRO. See id. at 105.

At the April 27 hearing on the TRO motion filed in Tuong's habeas case, the parties stipulated to the district court that a temporary contract extension with the Aurora facility had been signed, so the TRO issues were moot for the time being. See Appellees' Supp. App. at 2. The court denied plaintiffs' motion filed in the Bivens class action to consolidate the class action suit with Tuong's habeas action. See id. at 3. Plaintiffs then suggested that the court stay everything in the Bivens class action until the parties filed a status report, and the court agreed. See id. at 4.

The INS executed a new contract for the Aurora facility on May 19, and on May 22, the INS moved the court to dismiss as moot the Bivens class action. At a June 3 hearing, the court continued the motion to dismiss for a week. See id. at 8. The court then again turned to the motion for TRO filed in Tuong's habeas case. See id. at 9. The parties informed the court that they had reached a stipulation with regard to Tuong's bail and that the TRO issues were moot. See id.

On June 10, plaintiffs filed their concurrence in the INS's motion to dismiss the Bivens class action, along with a motion for attorney fees and costs brought pursuant to the EAJA. See id. at 17; Appellants' App. at 105. The court denied the motion for attorney fees and costs, concluding that plaintiffs had not shown that they were the prevailing party in the underlying Bivens class action or that the position of the INS was not substantially justified. See Appellant's App. at 244.

II. Legal Standards

The EAJA requires that a court

award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C.§ 2412(d)(1)(A) (emphasis added). The statute includes an express requirement that a court have subject matter jurisdiction over the underlying action before it may issue an award for fees and costs. See Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1482 n.2 (10th Cir. 1995). We review whether a court has subject matter jurisdiction over a Bivens action de novo. See Maddick v. United States, 978 F.2d 614, 615 (10th Cir. 1992). A decision regarding whether attorney fees and costs should be awarded under the EAJA will be reversed only for abuse of discretion. See Kopunec v. Nelson, 801 F.2d 1226, 1229 (10th Cir. 1986).

III. Discussion

On appeal, appellants argue that they were the prevailing parties because the district court issued the April 24 TRO precluding their transfer out of the Denver area until April 27, and that they therefore should have been awarded attorney's fees and costs. See Kopunec, 801 F.2d at 1228-29 (stating that "[a] plaintiff prevails for attorney fee purposes if success on a significant issue of litigation achieves some of the benefit the plaintiff sought in bringing the suit"). The INS asserts, inter alia, that the district court never had subject matter jurisdiction over the Bivens class action suit under 8 U.S.C. § 1252(a)(2)(B)(ii) and 8 U.S.C. § 1252(f) and that denial of attorney's fees was therefore proper.

Section 1252(a)(2)(B)(ii) provides:

Notwithstanding any other provision of law, no court shall have jurisdiction to review . . . (ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.

Appellants argue that this section does not apply because: (1) it does not repeal habeas review under 28 U.S.C. § 2241; (2) it applies only to review of final orders of removal; and (3) it is silent regarding constitutional issues.

Section 1252(f) provides, in part, that

no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [§§ 1221-31] of this subchapter . . . other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

Appellants argue that this section does not...