Zambrano v. I.N.S., 00-16191.

• Decision Date: 07 March 2002
• Docket Number: No. 00-16191.,00-16191.
• Parties: Marta ZAMBRANO; Margarita Rodriguez; Graciela Lopez; Andrea Ruiz; Martha OZUNA; Jorge Perdoma, Plaintiffs-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE; Edwin Meese; Alan Nelson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.3d 1145

Marta ZAMBRANO; Margarita Rodriguez; Graciela Lopez; Andrea Ruiz; Martha OZUNA; Jorge Perdoma, Plaintiffs-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE; Edwin Meese; Alan Nelson, Defendants-Appellees.

No. 00-16191.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2001.

Filed March 7, 2002.

Richard M. Pearl, Berkeley, CA, for appellants.

William J. Howard and Antony W. Norwood, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for appellees.

Appeal from the United States District Court for the Eastern District of California, Edward J. Garcia, District Judge, Presiding. D.C. No. CV-88-00455-EJG.

Before: HUG, D.W. NELSON, and HAWKINS, Circuit Judges.

HUG, Circuit Judge.

OVERVIEW

This case presents the question of whether a court can reconsider the issue of subject matter-jurisdiction for purposes of awarding fees under the Equal Access to Justice Act ("EAJA") when the underlying action had previously been dismissed for lack of subject-matter jurisdiction, and that decision has become final. We conclude that it cannot.

Plaintiffs appeal the district court's denial of fees in this class action, which deals with a challenge to regulations as applied and implemented by the Immigration and Naturalization Service ("INS").¹ After dismissing the action for lack of subject-matter jurisdiction, Plaintiffs moved for fees under the EAJA. The district court denied this motion, again basing that decision on lack of subject matter jurisdiction. We affirm.

I. BACKGROUND

This case began as a class action challenge to regulations applied by the Immigration and Naturalization Service ("INS") in connection with its implementation of the legalization provisions of the Immigration Reform and Control Act of 1986 ("IRCA"). The case has a lengthy procedural history spanning ten years in three different courts. Due to the nexus between the case history and the current appeal, the chronology is set forth in considerable detail.

In 1988, the district court denied Defendants' motion to dismiss for lack of jurisdiction pursuant to 8 U.S.C. § 1255a(f), and granted the Plaintiffs' motions for preliminary injunction and class certification, certifying two classes of individuals.² In 1989, the court granted partial summary judgment in favor of the Plaintiffs, invalidating the challenged regulations and permanently enjoining their enforcement by the Defendants. To effectuate the injunction, Defendants were enjoined from denying work authorizations to or deporting class members.

Defendants selectively appealed from the court's orders, contesting only the court's jurisdiction, its extension of the statutory filing deadline, and its order directing the production of confidential information. To the extent challenged, we affirmed the district court's orders. See Zambrano v. INS, 972 F.2d 1122 (9th Cir. 1992). However, the Supreme Court granted certiorari, vacated the judgment and remanded the case to this Court for further consideration in light of the Supreme Court's opinion in Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993)("CSS III"). We, in turn, remanded the case to the district court.

In CSS III, as in the present case, the Supreme Court did not reach the merits. Instead, while it rejected Defendants' jurisdictional arguments, it nonetheless found other jurisdictional hurdles that neither class of Plaintiffs in the instant case could overcome. First, it found that for those who had not yet applied for legalization (Zambrano Class Two members), their substantive challenge to the regulations was not ripe because those Plaintiffs could not show they had taken all necessary steps to apply for legalization before the regulations were applied to them by the INS. Additionally, the Court found that although the claims of the timely filers (Zambrano Class One members) were ripe, their sole remedy was to raise them before the Circuit Courts of Appeal following issuance of a final order of deportation, as set forth within the statutory scheme. CSS III, 509 U.S. at 60-61, 113 S.Ct. 2485.

Although the Supreme Court's decision forcefully closed a door on the thousands of aliens whose timely filed applications were denied because of the challenged regulations, it left open a window through which some of the late filers might be able to maneuver. The Court recognized the possibility of district court jurisdiction over the claims of late filers who had been either actually or constructively "front-desked."

"Front-desking" is a term-of-art coined in CSS III to refer to those plaintiffs who were rejected before they even applied because they were told at the "front desk" of an INS office that the challenged regulations would prevent their applications from being approved. The Court noted that this class of persons would have ripe claims. "[A] class member whose application was `front-desked' would have felt the effects of the [challenged] regulation in a particularly concrete manner, for his application for legalization would have been blocked then and there; his challenge to the regulation should not fail for lack of ripeness." CSS III, 509 U.S. at 63, 113 S.Ct. 2485.

In addition to those persons who were actually front-desked, the Supreme Court left open the possibility that the existence of the front-desking policy may have concretely affected other late filers sufficiently to render their claims ripe as well. "Although we think it unlikely, we cannot rule out the possibility that further facts would allow class members who were not front-desked to demonstrate that the front-desking policy was nevertheless a substantial cause of their failure not to apply, so that they can be said to have had the[challenged] regulation applied to them in a sufficiently concrete manner to satisfy ripeness concerns." Id. at 2500, n. 28. This group of persons has come to be known as those who were constructively front desked.

Since neither CSS nor Zambrano had a fully developed factual record, the Supreme Court remanded for the lower courts to determine, in the first instance, whether any putative class members were front-desked and thus had ripe claims.

After Zambrano was returned to the district court in August 1993, and after the parties engaged in a lengthy but unsuccessful attempt at settlement, Defendants moved to dismiss the complaint contending that no claims survived the Supreme Court's opinion in CSS III. Plaintiffs responded by amending their complaint to delete Class One completely and to add new claims. Three of their claims were new, while one, alleging that the public charge regulations violated IRCA, was a carryover from the original complaint. The court dismissed this latter claim for lack of subject matter jurisdiction, finding that Plaintiffs had failed to identify any class members with a ripe claim. The Plaintiffs were allowed to proceed with the three new claims, all of which raised procedural challenges and none of which had been before the Supreme Court in CSS III.

On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA"), a portion of which directly impacted the district court's jurisdiction over the present case. Under § 377 of IIRIRA, which amends IRCA and purports to divest district courts of jurisdiction to consider any claims related to legalization applications, Defendants moved to vacate all prior orders of this court and to dismiss Plaintiffs' third amended complaint.

On February 18, 1997, the district court denied Defendants' motion, finding that § 377 of IIRIRA was merely a codification of the Supreme Court's ripeness holding in CSS III, and that Plaintiffs' claims came within one of the Act's express exceptions to its mandatory jurisdictional bar. Having found that the Zambrano class in the third amended complaint contained putative Plaintiffs who satisfied the definition of "constructive front-desking," the district court held that § 377 did not warrant dismissal of the three remaining claims in the third amended complaint.

In June of 1997, after the district court denied Defendants' request for reconsideration of their motion to dismiss, they filed an immediate appeal and sought a stay of the court's 1989 interim relief orders which had, inter alia, allowed class members to work and remain in this country pending resolution of the litigation. The court denied Defendants' request for a stay on August 6, 1997.

On January 16, 1998, the Ninth Circuit issued an amended opinion which sounded the death knell for both the CSS and Zambrano Plaintiffs. The court explained that with the enactment of § 377 "Congress intended to eliminate federal court jurisdiction over claims by aliens who were not actually subjected to front-desking but [who, nonetheless] failed to file an application because of the front-desking policy." Catholic Social Services v. Reno, 134 F.3d 921, 925 (9th Cir.1998) ("CSS V"). In other words, even claims which raise collateral challenges to the Defendants' procedures and practices in the application process require as a prerequisite class members who were actually front-desked. The court opined that "[a] broader interpretation of § 377 would contravene Congress's clearly expressed intention to `put an end to[this] litigation.' An expansive reading of § 377 would foster litigation to define the parameters of an attempt to file a complete application." Id. at 926.

Five days later, Plaintiffs filed a motion seeking to add two recently discovered front-desked persons as class representatives "to quiet any protest by the INS about jurisdiction in this case." The district court denied the motion informing Plaintiffs that Defendants' pending appeal of the court's order denying dismissal divested the court of jurisdiction to consider Plaintiffs' motion to intervene. Plaintiffs, in turn, appealed the order denying...