Roman v. Wolf

• Decision Date: 13 October 2020
• Docket Number: No. 20-55436,20-55436
• Citation: 977 F.3d 935
• Parties: Kelvin Hernandez ROMAN; Beatriz Andrea Forero Chavez; Miguel Aguilar Estrada, on behalf of themselves and all others similarly situated, Plaintiffs-Petitioners-Appellees, v. Chad F. WOLF, Acting Secretary, U.S. Department of Homeland Security; Tony H. Pham, Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement; David Marin, Director of the Los Angeles Field Office, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; James Janecka, Warden, Adelanto ICE Processing Center, Defendants-Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

977 F.3d 935

Kelvin Hernandez ROMAN; Beatriz Andrea Forero Chavez; Miguel Aguilar Estrada, on behalf of themselves and all others similarly situated, Plaintiffs-Petitioners-Appellees,

v.Chad F. WOLF, Acting Secretary, U.S. Department of Homeland Security; Tony H. Pham, Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement; David Marin, Director of the Los Angeles Field Office, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; James Janecka, Warden, Adelanto ICE Processing Center, Defendants-Respondents-Appellants.

No. 20-55436

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 15, 2020 San Francisco, California

Filed October 13, 2020

PER CURIAM:

In this interlocutory appeal, the Government¹ challenges a preliminary injunction entered by the district court in response to Plaintiffs’ claims that conditions at the Adelanto Immigration and Customs Enforcement Processing Center ("Adelanto"), where they were detained, placed them at unconstitutional risk of contracting COVID-19. A week after we heard oral argument, we received a joint status report from the parties informing us that, in the prior week, 58 detainees and eight staff members had tested positive for COVID-19 at Adelanto, and over 300 detainees were still awaiting their test results. Nine detainees had been hospitalized.

We affirm in part because the district court had broad equitable authority to grant provisional relief to remedy a likely constitutional violation. In light of the changed circumstances at Adelanto since the preliminary injunction was entered, however, we vacate it in part and remand so that the district court may address the current circumstances at Adelanto.

I.

Plaintiffs brought this class action on behalf of noncitizens detained at Adelanto. These noncitizens are being held in civil detention in connection with various immigration proceedings, and many of them have no criminal record. Plaintiffs seek declaratory and injunctive relief, as well as habeas relief. Their Complaint alleges that, in light of the COVID-19 pandemic, Adelanto's failure to implement necessary protective measures—including social distancing, sanitation, and the provision of sufficient masks and soap—violates detainees’ due process rights under the Fifth Amendment. On April 23, 2020, the district court certified a class of 1,370 Adelanto detainees and granted a preliminary injunction that, inter alia , imposed a moratorium on Adelanto's receipt of new detainees, required specific sanitation measures, mandated compliance with guidance issued by the U.S. Centers for Disease Control and Prevention ("CDC"), and ordered the facility's detainee population to be reduced to a level that would enable social distancing. The district court left to the Government's discretion whether to achieve the requisite population reduction by deporting selected detainees, transferring selected detainees to other facilities, or releasing selected detainees with appropriate conditions of release. The court likewise allowed the Government to determine which detainees to release, deport, or transfer.

The Government timely appealed and sought an emergency stay of the preliminary injunction pending appeal, which a motions panel, in an unpublished order, granted, except to the extent the preliminary injunction "require[d] substantial compliance with guidelines issued by the [CDC] for correctional and detention facilities to follow in managing COVID-19."

We heard oral argument on September 15, 2020. The next day, in response to an inquiry from Plaintiffs’ counsel, the Government revealed to Plaintiffs’ counsel that 38 detainees had tested positive for COVID-19 at Adelanto.

In the district court, Plaintiffs filed an ex parte application for a temporary restraining order ("TRO") on September 16, 2020, seeking an order compelling the Government to test all Adelanto detainees (using rapid, point-of-care tests, if possible) and to isolate all detainees who received positive test results. The Government filed a status report, which the district court construed as an opposition to the TRO application. The district court denied the application for a TRO on September 17, 2020, without specifying its reasoning.

The following day, Plaintiffs filed an ex parte application for reconsideration of the district court's denial of their motion for a TRO and sought a further TRO. Specifically, Plaintiffs requested that the district court order the Government to:

(1) Test all detainees at Adelanto; (2) Isolate, in single occupancy cells, all detainees who have tested positive for COVID-19 and all detainees who are awaiting test results; (3) Prevent staff who worked in the West 5C and West 5D housing units from returning to work pending their COVID-19 test results, even if they are asymptomatic; (4) Suspend intake of new detainees into Adelanto; and (5) Provide daily status reports.

Plaintiffs acknowledged that the Government was already undertaking some of the measures requested but contended that the Government had neither adopted the isolation protocols proposed by Plaintiffs nor suspended its receipt of new detainees into Adelanto. The Government again opposed the motion.

In an order issued on September 22, 2020, the district court expressed concern about the adequacy of the Government's response to the outbreak, but it stated that its "hands have been tied by the Ninth Circuit's stay." The district court therefore denied reconsideration, but it instructed the parties to file a joint status report "regarding Adelanto's Covid-19 outbreak" with our court, which we received later that same afternoon.

The parties’ report informed us that, as of September 22, there were 58 confirmed COVID-19 cases among detainees and eight among staff members. More than half of the detainees who had received results tested positive. Twenty of the COVID-19-positive detainees belong to a medically vulnerable group at the greatest risk of suffering severe complications, and nine detainees were hospitalized. The Government stated its intention to test all Adelanto detainees and staff. Just over half of the 774 detainees had been tested by September 20. Tests apparently take at least three days to return results, so the parties were awaiting results for hundreds of detainees.

We received an emergency motion from Plaintiffs on the evening of September 22, several hours after we received the parties’ status report, asking us to clarify or to partially lift the emergency stay imposed by the motions panel.² The emergency motion asserted that the Government had not imposed measures at Adelanto necessary to counter the developing outbreak. Among other things, Plaintiffs reported that the detainees in the housing unit with confirmed cases were being held "two per cell," less than six feet apart; new detainees were continually being brought into the facility; and only some of the detainees had been tested for the virus so far. Plaintiffs asked us to clarify that the emergency stay of the district court's preliminary injunction did not "deprive[ ] [the district court] of authority to order appropriate isolation protocols and a temporary halt to new intakes" in light of the changed circumstances presented by the current outbreak. Plaintiffs requested, in the alternative, that we "lift the stay insofar as it prohibits the district court from responding to the current crisis." In light of the urgency of the situation described in the emergency motion, we issued an unpublished version of this opinion on September 23.³

II.

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Where the government is a party to a case in which a preliminary injunction is sought, the balance of the equities and public interest factors merge. Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014). Further, where the "balance of hardships ... tips sharply towards the plaintiff," a plaintiff need only show "serious questions going to the merits," rather than likelihood of success on the merits, to warrant preliminary injunctive relief. All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011) (quotation marks and citation omitted). Injunctions that alter the status quo "are not granted unless extreme or very serious damage will result and are not issued in doubtful cases." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co. , 571 F.3d 873, 879 (9th Cir. 2009) (quotation marks omitted).

We review a district court's decision to grant or deny a preliminary injunction for abuse of discretion. Sw. Voter Registration Educ. Project v. Shelley , 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). We review the district court's legal conclusions de novo and its factual findings for clear error. K.W. ex rel. D.W. v. Armstrong , 789 F.3d 962, 969 (9th Cir. 2015).

A district court's decision regarding class certification is also reviewed for abuse of discretion. Pulaski & Middleman, LLC v. Google, Inc. , 802 F.3d 979, 984 (9th Cir. 2015).

III.

As a threshold matter, the parties dispute whether district courts have authority to order the types of relief in the preliminary injunction in response to habeas claims. Specifically, the Government argues that a district court on habeas review may not order reductions in the number of detainees held at a facility, or any other injunctive relief, to remedy unconstitutional conditions of confinement. We need not reach that issue to resolve this appeal because, separately from their habeas petition, Plaintiffs brought a class action complaint for declaratory and injunctive relief seeking to remedy...