Fernandez-Roque v. Smith

Citation671 F.2d 426
Decision Date04 March 1982
Docket NumberNo. 81-7853,FERNANDEZ-ROQUE,81-7853
PartiesRafael, et al., Plaintiffs-Appellees, v. William French SMITH, etc., et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Daniel E. Fromstein, Lauri Steven Filppu, Attys., U. S. Dept. of Justice, General Litigation and Legal Advice Section, Crim. Div., Washington, D.C., Douglas P. Roberto, Asst. U. S. Atty., Atlanta, Ga., for defendants-appellants.

Myron Kramer and Deborah S. Ebel, Atlanta, Ga., for Fernandez-Roque.

Phillip A. Bradley, Atlanta, Ga., for Chao-Estrada.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, TJOFLAT and CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

In this appeal the government seeks to have this Court determine the proper role of the judiciary with respect to the statutory procedures for granting amnesty. We must decline to do so for the reasons detailed below.

The present action is a consolidation of three suits filed by various groups of Cuban nationals. These plaintiffs-appellees represent a class of approximately 1800 Cubans who were detained by the Immigration and Naturalization Service upon their arrival in the United States as part of the 1981 Freedom Flotilla. 1 The original complaints sought only relief from detention. Appellees later amended their complaints alleging that they were "refugees" as that term is defined in the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, 2 (hereinafter Convention & Protocol), 19 U.S.T. 6223, T.I.A.S. 6577. Seeking the protections allegedly afforded them by the Convention & Protocol, the appellees asserted that they had a well-founded fear of persecution, if deported, because of their membership in a social group-the Freedom Flotilla. 3

During a hearing conducted on August 19, 1981, the Cuban detainees expressed their concern that the government might deport them during the pendency of this litigation. The district court first attempted to obtain assurances from the government counsel that they would provide the Court with advance notice prior to deporting any of the Cuban detainees. When this endeavor proved unsuccessful, the district court entered a temporary restraining order enjoining the government from deporting any of the Cuban detainees pending further order of the court. This order, entered on August 19, 1981, remains in effect at this time.

On October 16, 1981, the government filed a notice of appeal on the theory that the TRO had ripened into a preliminary injunction and thus appellate jurisdiction exists pursuant to 28 U.S.C. § 1292(a)(1) (1976). The proper role of the judiciary with respect to the detention or release of excludable aliens is not implicated in this appeal. Rather, the only issue before us is the propriety of the district court's actions relating to the asylum claims. The government seeks to have the district court's order dissolved on the ground that the district court had no authority to interject itself into the statutory scheme provided for by the immigration laws. Specifically, the government contends that the district court was without habeas corpus jurisdiction because the appellees have failed to exhaust their administrative remedies and because the immigration statute requires individual rather than class-wide determinations of appellees' asylum claims. In addition, the Convention & Protocol do not, in the government's view, provide appellees with any greater rights than those accorded by the immigration statutes. Moreover, the government contends that any judicial inquiry into the appellees' asylum claims at this point in time would necessarily intrude in the field of foreign affairs which is committed to the Congress and the President by Article I, section eight and Article II, section two of the Constitution.

It is incumbent upon this Court to first determine whether our power to declare the law has been properly invoked. It is well established that as a general rule a temporary restraining order is not appealable. E.g., Nelson v. Rosenthal, 539 F.2d 1034, 1035 (5th Cir. 1976); Chandler v. Garrison, 394 F.2d 828 (5th Cir. 1967); Connell v. Dulien Steel Products, Inc., 240 F.2d 414 (5th Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958). A preliminary injunction is, however, an interlocutory decision reviewable by a court of appeals. 28 U.S.C. § 1292(a)(1) (1976); Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940); Dilworth v. Riner, 343 F.2d 226 (5th Cir. 1965). Thus, our jurisdiction in this appeal turns on the proper characterization of the district court's order. Since the "label attached to an order by the trial court is not decisive," we are required to consider several factors in reaching a decision concerning the true nature of the order. Wright & Miller, Federal Practice and Procedure Civil § 2962 (1973); see Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Smith v. Grady, 411 F.2d 181 (5th Cir. 1969).

One inherent characteristic of a temporary restraining order is that it has the effect of merely preserving the status quo rather than granting most or all of the substantive relief requested in the complaint. See, e.g., American Motors Corp. v. FTC, 601 F.2d 1329 (6th Cir.), cert. denied, 444 U.S. 941, 100 S.Ct. 294, 62 L.Ed.2d 307 (1979); Siebert v. Great Northern Development Co., 494 F.2d 510 (5th Cir. 1974). The circumstances of the instant case indicate that in issuing this order, the district court intended merely to preserve the status quo in the face of the stated intention of the government to deport the appellees without notice to the court. Indeed, a hearing was originally scheduled for August 28, 1981, nine days after the order was issued. Although this hearing was postponed indefinitely, the order never assumed the function of providing appellees with the substantive relief requested in their amended complaints, that is, release from detention or a declaration of their substantive rights afforded by the Convention & Protocol. 4

Another, and perhaps more important, characteristic of a temporary restraining order is the limitation on its duration. Rule 65 of the Federal Rules of Civil Procedure provides in pertinent part:

Every temporary restraining order granted without notice shall ... expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period....

Fed.Rule Civ.Proc. 65(b) (emphasis added). This rule has been interpreted to mean that a temporary restraining order continued without the consent of the parties beyond the twenty day maximum may be treated as a preliminary injunction. Sampson v. Murray, 415 U.S. 61, 86-88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974); Connell v. Dulien Steel Products, Inc., 240 F.2d 414, 417 (5th Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958). Conversely a temporary restraining order issued or extended with the consent of all parties remains a nonappealable order. Ross v. Evans, 325 F.2d 160 (5th Cir. 1963); cf. Haitian Refugee Center v. Civiletti, 614 F.2d 92 (5th Cir. 1980) (preliminary injunction entered upon the consent of all parties cannot be appealed).

On the facts of this case, we must conclude that the government consented to the extension of the temporary restraining order. The order was entered on August 19, 1981, and a hearing on appellees' motion for a preliminary injunction was scheduled for nine days later. The issues were fully briefed by both parties. The jurisdictional arguments contained in the government's brief were essentially the same as those asserted in this appeal. Prior to the date of the scheduled hearing, however, a disagreement arose between the court and the government as to the scope of this hearing. The court apparently indicated that before ruling on the motion for a preliminary injunction, it desired to hear evidence concerning the appellees' alleged fear of persecution if they were returned to Cuba. 5 The government, on the other hand, desired to have a hearing solely on the issue of jurisdiction. It asserted that any judicial inquiry, including an evidentiary hearing, into the merits of appellees' group asylum claim would intrude upon the President's constitutional power to conduct foreign affairs. As a result of this stalemate, no hearing was ever held. Yet the government never filed a motion to dissolve the temporary restraining order. It also never took any steps to obtain a limited ruling on jurisdiction. 6 Rather, as the record demonstrates, the government chose to allow the order to continue. Indeed, at a September 10, 1981 conference, government counsel informed the court that it was "(n)ot at this point" seeking a hearing. Moreover, during the September 24, 1981 conference, the following colloquy occurred:

THE COURT: The next question, what do you want to do with the TRO? Are the parties satisfied to let the matter-let the temporary restraining order continue until some further time? That was the posture at which we left it at the September 10th meeting.

GOVERNMENT COUNSEL: At this point I don't now (sic) what the Government's position is. We do, in fact, have serious concerns about the jurisdictional question of the Court's authority to enter the injunction at all....

THE COURT: I will be happy to vacate the restraining order as long as I get a representation by the Government that I get two days notice before you try and deport anybody.

GOVERNMENT COUNSEL: What I would like to do is leave it up in the air right now....

Finally, we note that the district court stated in its order of November 4, 1981, that it "construed the representations of the...

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