U.S., In re

• Decision Date: 18 May 1988
• Docket Number: Nos. 86-5579,86-5604,s. 86-5579
• Citation: 844 F.2d 1528
• Parties: In re UNITED STATES of America, Petitioner. UNITED STATES of America, Plaintiff-Appellant, v. Manuel Blanco GARCIA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1528

844 F.2d 1528

In re UNITED STATES of America, Petitioner UNITED STATES of America, Plaintiff-Appellant, v. Manuel Blanco GARCIA, et al., Defendants-Appellees.

Nos. 86-5579, 86-5604.

United States Court of Appeals Eleventh Circuit.

May 18, 1988.

Leon B. Kellner, U.S. Atty., Elizabeth Ruff-Stein, Asst. U.S. Atty., Miami, Fla., Robert Kendall, Jr., Asst. Dir., Office of Immigration Litigation, Civil Div., Dept. of Justice, Washington, D.C., for petitioner.

Robert Kendall, Jr., U.S. Dept. of Justice/Civil Div., Washington, D.C., Elizabeth Ruf Stein, Special Asst., U.S. Atty., Miami, Fla., for plaintiff-appellant.

Andrew S. Berman, Spencer, Bernstein, Seemann & Klein, P.A., Miami, Fla., for Culmer.

Bonnie Rippingille, Coral Gables, Fla., for Carlos Lopez Aguiar & Edelberto Rodriguez.

Andrew L. Waks, Waks & Barnett, Miami, Fla., for Angel Torres-Ruiz.

Alfred K. Frigola, Marthon, Fla., for Juan Antonio Paan.

Robert J. Gorman, Ft. Pierce, Fla., for Gatchell.

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

On Petition for Writ of Mandamus

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

CLARK, Circuit Judge:

I. BACKGROUND

This is another appeal associated with the United States' ongoing efforts to collect fines from the owners and operators of vessels who participated in the 1980 Mariel Boatlift of Cuban nationals into the United States. Before the court are 62 consolidated cases in which the United States seeks to collect fines in accordance with 8 U.S.C. Sec. 1323. This statute provides that persons who bring undocumented aliens into the United States "shall pay ... the sum of $1,000 for each alien so brought." When the defendants returned from Cuba, the Immigration and Naturalization Service ("INS" or "the Service") served them with a "Notice of Intention to Fine." Following administrative adjudication of the noticed fines, the Service issued demand letters for payment. When the defendants failed to pay the fines, the Service referred these cases to the United States Attorney for the Southern District of Florida for the institution of civil collection actions. See 8 U.S.C. Secs. 1329 (district court jurisdiction); 1330 (suits for enforcement).

This much of the case is simple, and follows a pattern consistent with some 900 additional, identical suits filed by the United States. Of the total number of suits filed in the Southern District of Florida, some 60 to 90 were assigned to each active district judge sitting at the time. The district judge responsible for these 62 cases dismissed all of them in July 1985 for failure to state a claim. In a boilerplate order issued sua sponte in each case, the district court granted the United States 30 days leave to amend its complaint; such amendment would have had the effect of "reinstating" each individual action. As a condition precedent to filing an amended complaint, the court required the government to include certain specific allegations. ¹

The government appealed the dismissals after the 30 days had expired, and so ended the straightforward procedural history of these actions.

On October 22, 1985, this court requested the parties to respond to a jurisdictional query. On December 23, 1985, we dismissed the appeals for lack of jurisdiction without opinion. In February 1986, the government filed motions before the district court seeking to have the court reconsider its sua sponte orders of dismissal. In March 1986, these motions were denied as "grossly untimely." In a final attempt to have the district court reconsider its orders of dismissal, in May 1986, the government filed motions seeking to have all 62 cases remanded to INS for reconsideration in light of Pollgreen v. Morris, 770 F.2d 1536 (11th Cir.1985), and related decisions. ² 2]

II. JURISDICTION

Admittedly, the government is, as a matter of jurisdiction, "between a rock and a hard place." This court has indicated that it did not consider the district court's orders of dismissal to be final, and hence appealable, while the district court says that its orders were final. An intervening development in the law of this circuit has relieved this jurisdictional pressure.

In Schuurman v. Motor Vessel "Betty K V", 798 F.2d 442 (11th Cir.1986), the district court granted a defendant's motion to dismiss for lack of in personam jurisdiction, but allowed the plaintiff 20 days from the date of the dismissal order to amend the complaint. The district court then denied the plaintiff's motion for reconsideration. The plaintiff failed to amend, believing that the denial of his motion for reconsideration was final. An appeal followed. We reviewed our decision in Czeremcha v. International Association of Machinists, 724 F.2d 1552 (11th Cir.1984), along with United States v. Mayton, 335 F.2d 153 (5th Cir.1964), and United Steelworkers v. American International Aluminum Corp., 334 F.2d 147 (5th Cir.1964), cert. denied, 379 U.S. 991, 85 S.Ct. 702, 13 L.Ed.2d 611 (1965), and held that

[i]n dismissing the complaint, the district court may also provide for a stated period within which a plaintiff may amend the complaint. If the plaintiff does not amend the complaint within the time allowed, no amendment may be made absent leave of court, and the dismissal order becomes final at the end of the stated period. For appeal purposes, we hold that the order of dismissal in this situation becomes final upon the expiration of the time allowed for amendment.

798 F.2d at 445. ³ In accordance with the rule announced in Schuurman, the district court's orders of dismissal became final when the United States failed to amend its complaints within the period specified by the district court. ⁴ This court, therefore, has jurisdiction over these appeals.

III. ELEVENTH CIRCUIT FLOTILLA JURISPRUDENCE

In Pollgreen, vessel owners and operators like the defendants here sued to challenge section 1323 fines and the seizure of vessels which had resulted from their participation in the Mariel Boatlift. INS had determined that duress was not a defense to penalties incurred under section 1323. ⁵ The district court disagreed and concluded that duress was available in efforts to mitigate and defend against penalties assessed under this statute. Having found that duress was established on the record before it, the district court ordered the remission of the fines assessed by INS and the release of vessels seized.

We established conclusively that duress is a defense to fines imposed under section 1323, 770 F.2d at 1538, 1544, but reversed the district court because it had decided the factual question of duress de novo. Id. at 1544; see also Lyden v. Howerton, 783 F.2d 1554, 1155 (11th Cir.1986) ("It is now the settled law of this circuit that duress is available as a defense to violations of 8 U.S.C. Sec. 1323."). We directed the district court to remand the individual vessel owners' cases to INS "for rehearing, reconsideration, and redetermination ... on such new or further evidence as the agency in the first instance, deems appropriate on the issue of duress." Id. at 1546.

Lyden arose in a fashion similar to Pollgreen. As in Pollgreen, the district court found that the vessel owners and operators had made out a defense of duress. We again held that remand to INS was appropriate since the agency had misapplied the law. ⁶

In Lyden, we described the position of INS, as evidenced by decisions of the Board of Immigration Appeals ("BIA"), which obtained prior to our decision in Pollgreen. See, e.g., In re M.V. Solemn Judge, 18 I & N Dec. 186 (B.I.A.1982). ⁷ INS processed the fines imposed during the Mariel Boatlift while under the view that "even if duress were available in mitigation the owners forfeited that right by going to Cuba to perform an illegal act, thereby placing themselves in danger of duress." Lyden, 783 F.2d at 1556. (citing Solemn Judge, supra ). ⁸ Consequently, until the matter was resolved by this court, INS operated under the "erroneous belief that section 1323 is a strict liability statute without defense." Lyden, 783 F.2d at 1557.

IV. THE GOVERNMENT'S POSITION

The government raises two basic arguments on appeal. First, it contends that the district court erred in holding that the complaints filed in these cases failed to state a claim. With this basic contention we must agree. The complaints filed in all 62 cases allege (1) the presence of jurisdiction; (2) that the defendant(s) in question brought a certain number of undocumented aliens into the United States in violation of section 1323; (3) that INS served the defendant(s) in question with a Notice of Intention to Fine which described the violationl; (4) that the propriety of a fine was adjudicated administratively; and (5) that the fine remains unpaid. ⁹ In dismissing these complaints, it is clear that the district court failed to adhere to the well-established principle that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), quoted in Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir.1985). We have no doubt that these complaints "g[a]ve the defendant[s] fair notice of what the plaintiff's claims [are] and the grounds upon which [they] rest[ ]." Conley, 355 U.S. at 47, 78 S.Ct. at 103. ¹⁰

The government also contends that the district court erred in denying its motions to have these cases remanded to INS for reconsideration in light of Pollgreen and Lyden. It urges this court to require the district court to so remand all 62 cases. Although many of these cases may ultimately be remanded to INS, we cannot now direct the district court to so remand them because we are without authority to issue such an order. This case is unlike Pollgreen and Lyden in one crucial respect. We re...