Bernardo Mendia v. John Garcia, et al

Filing

Filed opinion (MARY M. SCHROEDER, RICHARD C. TALLMAN and ROBERT H. WHALEY (SEE OPINION FOR FULL TEXT) )We retain jurisdiction of the case and remand Mendia s Bivens claims for the limited purpose of permitting the government to move, and the district court to rule, on the application of its earlier order. The appeal on the merits shall be held in abeyance without prejudice to each party s position on the merits pending the results of the limited remand we have ordered. Consistent with FRAP 12.1(b), the parties shall notify the circuit clerk when the district court has decided the motion on remand. Each party shall bear its own costs. REMANDED with instructions. [10642298] [16-15742, 16-16184]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNARDO MENDIA,
Plaintiff-Appellee,

No. 16-15742
16-16184

v.

D.C. No.
3:10-cv-03910-MEJ

JOHN M. GARCIA; CHING
CHANG,
Defendants-Appellants,

OPINION

and
U.S. DEPARTMENT OF
HOMELAND SECURITY,
Defendant.

Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Argued and Submitted September 11, 2017
San Francisco, California
Filed November 3, 2017

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MENDIA V. GARCIA
Before: Mary M. Schroeder and Richard C. Tallman,
Circuit Judges, and Robert H. Whaley, * District Judge.
Opinion by Judge Tallman
SUMMARY **
Civil Procedure

The panel remanded the case to the district court
pursuant to Federal Rule of Appellate Procedure 12.1(b) for
the limited purpose of allowing the district court to make a
final ruling on whether to dismiss plaintiff’s claims brought
pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff, a United States citizen, sued Immigration and
Customs Enforcement agents and the Department of
Homeland Security under Bivens and the Federal Torts
Claims Act, 28 U.S.C. § 1346(b), after agents erroneously
lodged an immigration detainer against him while he was
detained in county jail. The district court found that the
individual defendants were not entitled to qualified
immunity on plaintiff’s Bivens claims, and this interlocutory
appeal followed. After the notice of appeal on the Bivens
ruling was filed, however, the district court sanctioned
plaintiff for egregious misconduct during discovery and
The Honorable Robert H. Whaley, United States District Judge for
the Eastern District of Washington, sitting by designation.
*

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
**

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ultimately dismissed his claims brought pursuant to the
FTCA. Defendants then moved in this court for a limited
remand pursuant to FRAP 12.1(b) to allow the district court
to consider applying the sanction to plaintiff’s remaining
claims.
The panel held that a limited remand was permissible
pursuant to FRAP 12.1 even though defendants had never
asked the district court for a targeted indicative ruling under
Federal Rule of Civil Procedure 62.1. The panel held that a
FRCP 62.1 motion was not a prerequisite for a limited
remand under FRAP 12.1(b) where the district court has
already indicated it would grant a motion for the requested
relief. The panel stated that it was satisfied that the district
court made its intentions sufficiently clear in its order
dismissing plaintiff’s FTCA claim and the panel treated that
order as an indicative ruling for the purposes of applying
FRAP 12.1.
COUNSEL
Daniel Aguilar (argued) and H. Thomas Byron III, Appellate
Staff; Brian Stretch, United States Attorney; Civil Division,
United States Department of Justice, Washington, D.C.; for
Defendants-Appellants.
David R. Williams (argued), Ann M. Koppuzha, and
Michael J. Shepard, Hogan Lovells US LLP, San Francisco,
California, for Plaintiff-Appellee.

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MENDIA V. GARCIA
OPINION

TALLMAN, Circuit Judge:
Bernardo Mendia, a naturalized U.S. citizen, was
detained in county jail when Immigration and Customs
Enforcement (“ICE”) agents John Garcia and Ching Chang
lodged an immigration detainer placing a federal hold to pick
him up when state authorities were ready to release him.
Mendia sued Garcia, Chang, and the Department of
Homeland Security under Bivens 1 and the Federal Torts
Claims Act (“FTCA”), 28 U.S.C. § 1346(b), asserting
violations of his constitutional rights as a U.S. citizen. The
district court found that the individual defendants were not
entitled to qualified immunity on Mendia’s Bivens claims,
and this interlocutory appeal followed. Discovery proceeded
on the remaining claims in district court. After the notice of
appeal on the Bivens ruling was filed, however, the district
court sanctioned Mendia for egregious misconduct during
that discovery and ultimately dismissed his FTCA claims.
Defendants then immediately moved in our court for a
limited remand to allow the district court to consider
applying the sanction to Mendia’s remaining claims. See
Federal Rule of Appellate Procedure (“FRAP”) 12.1(b).
Under FRAP 12.1(b), a court of appeals may remand a
case to the district court, while still retaining jurisdiction, for
the limited purpose of allowing that court to make a final
ruling on the matter based on an earlier indicative ruling.
This procedure is employed in conjunction with Federal
1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971) (holding that a violation of a citizen’s constitutional
rights by federal officers can give rise to a federal cause of action for
damages).

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Rule of Civil Procedure (“FRCP”) 62.1, which permits a
party to request an “indicative ruling” from the district court
when that court lacks jurisdiction in the matter based on a
pending appeal. Unlike our sister circuits, we have never
addressed whether a limited remand is permissible without
first moving in the district court under FRCP 62.1 for a
targeted “indicative ruling.” We hold that it is permissible,
and in this case, a limited remand is appropriate so the
government can move for dismissal of the remaining claims.
I
Plaintiff-appellee Mendia alleges he was being held in
pretrial detention in Contra Costa County, California, when
the two ICE agents lodged an immigration detainer,
erroneously believing he was subject to removal. Mendia
sued the agents and the Department of Homeland Security
under Bivens and the FTCA. The individual defendants then
moved to dismiss the Bivens claims on qualified immunity
grounds, which the court denied. After Garcia and Chang
filed an interlocutory appeal from that denial, the case
proceeded to discovery on Mendia’s remaining FTCA
claims.
During discovery, Mendia repeatedly failed to comply
with orders to compel discovery. His misconduct included
failing to produce requested documents to support his
damages calculations, refusing to attend meet and confer
sessions, and failing to appear for his own deposition. When
he finally appeared at his rescheduled deposition, Mendia
was completely uncooperative and claimed he was unable to
recall basic information such as his immediate family
members’ names, his education and work histories, his
current address, or whether he had ever owned a bank
account or paid taxes. After giving him several warnings,
imposing a $3500 fine, and ordering Mendia to show cause

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as to why further sanctions should not be imposed for his
repeated noncompliance with his discovery obligations,
Magistrate Judge Maria-Elena James finally dismissed
Mendia’s case with prejudice on May 31, 2017. See Fed. R.
Civ. P. 37(b)(2)(A)(v). Defendants’ pending appeal,
however, deprived the district court of authority to dismiss
the suit in its entirety. As soon as the district court entered
its partial dismissal of the FTCA claims, defendants moved
for a limited remand under FRAP 12.1(b) to file a motion in
the district court to enter the same sanction as to the Bivens
claims consistent with the May 31 order.
II
In opposing defendants’ motion, Mendia maintains that
a limited remand is unavailable here because defendants
never asked for an indicative ruling from the district court
under FRCP 62.1. In other words, Mendia reads FRAP 12.1
to require, as a prerequisite to a limited remand, a formal
FRCP 62.1 motion. Mendia further argues that, even if we
decide a prior FRCP 62.1 motion is not required, we should
still decline to construe the district court’s May 31 order as
an “indicative ruling” that it would impose the same sanction
as to Mendia’s remaining Bivens claims on remand. We find
these arguments unpersuasive.
A
FRAP 12.1 permits us to remand a case to the district
court, while retaining jurisdiction, for the limited purpose of
allowing the district court to take action consistent with an
earlier indicative ruling. The advisory committee notes to
FRAP 12.1 explain that the rule is intended to work in
conjunction with FRCP 62.1, which allows a party to ask the
district court for an “indicative ruling” on an issue the court
is without jurisdiction to decide because of a pending appeal.

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Fed. R. App. P. 12.1 advisory committee’s notes to 2009
adoption; see also Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982) (holding that the filing of a
notice of appeal “confers jurisdiction on the court of appeals
and divests the district court of its control over those aspects
of the case involved in the appeal”).
FRAP 12.1’s text clearly contemplates that its
procedures work in tandem with FRCP 62.1. FRAP 12.1(a)
provides that if a party makes a FRCP 62.1 motion in district
court, and the district court “states either that it would grant
the motion or that the motion raises a substantial issue,” the
party is to notify the circuit clerk. Then, “the court of
appeals may remand for further proceedings but retains
jurisdiction unless it expressly dismisses the appeal.” FRAP
12.1(b). The parties are to notify the court of appeals when
the district court has decided the motion after remand. Fed.
R. App. P. 12.1(b).
B
Although this is an issue of first impression for us, other
circuits have not treated a FRCP 62.1 motion as a
prerequisite for ordering a limited remand. Instead, courts
have been willing to construe district court actions as
indicative rulings even when no FRCP 62.1 motion (or, in
the criminal context, a resentencing motion under 18 U.S.C.
§ 3582(c)) was filed. See, e.g., Smitherman v. Bayview Loan
Servicing, LLC, 683 F. App’x 325, 326 (5th Cir. 2017)
(construing a district court order vacating its judgment and
remanding to state court as an indicative ruling under FRCP
62.1(a)(3)); United States v. Cardoza, 790 F.3d 247, 248 (1st
Cir. 2015) (treating a district court’s sua sponte resentencing
order as an indicative ruling); United States v. MaldonadoRios, 790 F.3d 62 (1st Cir. 2015) (construing a district
court’s grant of defendant’s resentencing motion as an

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indicative ruling); Mendez v. Republic Bank, 725 F.3d 651,
656 (7th Cir. 2013) (remanding case under FRAP 12.1 in
anticipation of FRCP 60(b) motion).
In Maldonado-Rios, for example, the First Circuit noted
that while the parties should have followed the procedures
contemplated in FRAP 12.1, the district court “could hardly
have more clearly stated ‘that it would grant the motion,’ as
Rule 12.1 requires, given that the district court purported to
grant the requested relief directly.” 790 F.3d at 65.
Accordingly, the court construed the district court’s action
as an indicative ruling, and granted a limited remand to
permit the district court to enter its modification order. Id.
The appellate court further noted that allowing a limited
remand under the circumstances would serve FRAP 12.1’s
purpose of promoting judicial efficiency. Id. (“[The rule]
provides an efficient means of resolving an issue on appeal
that the district court is willing to render moot.”). Therefore,
in the interest of effectively using our time and resources, as
well as a means of legitimate case management, we join our
sister circuits in holding that a FRCP 62.1 motion is not a
prerequisite for a limited remand under FRAP 12.1(b) where
the district court has already indicated it would grant a
motion for the requested relief.
C
Next, we must determine whether the district court’s
ruling in this case indicates “that it would grant the motion”
when it “did not ‘actually issue an indicative ruling.’” Fed.
R. App. P. 12.1 advisory committee’s notes to 2009
adoption; Cardoza, 790 F.3d at 248 (quoting MaldonadoRios, 790 F.3d at 65). Mendia maintains that the district
court has not indicated that it would impose the same
sanction related to Mendia’s Bivens claims. Mendia points
out, for example, that the May 31 order fails to make mention

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of Mendia’s Bivens claims. The district court did, however,
say that Mendia’s refusal to cooperate in discovery affected
all of his constitutional claims. The court also observed that,
because Mendia claims U.S. citizenship derivatively through
his mother, his refusal to provide even basic information
about his mother (with whom he remains in frequent contact)
struck at the “core” of Mendia’s action—specifically, his
contention that the defendants “violated his constitutional
rights by placing an immigration detainer on him despite his
United States citizenship.” That is sufficient for us to infer
that Mendia’s intransigent behavior during discovery was
related to seeking relevant information concerning all of his
claims, and it gives us sufficient insight into how the district
court would rule on remand.
Although the district court did not explicitly state it
would have dismissed Mendia’s Bivens claims had it
retained jurisdiction over those claims, it would be
reasonable for the district court to decline to make such a
statement, knowing it lacked authority to address them while
this appeal was pending, and that such a ruling would have
been in excess of its power at that time. We are satisfied the
district court made its intentions sufficiently clear in the May
31 order and we will treat that order as an indicative ruling
for the purposes of applying FRAP 12.1.
We retain jurisdiction of the case and remand Mendia’s
Bivens claims for the limited purpose of permitting the
government to move, and the district court to rule, on the
application of its earlier order. The appeal on the merits shall
be held in abeyance without prejudice to each party’s
position on the merits pending the results of the limited
remand we have ordered. Consistent with FRAP 12.1(b), the
parties shall notify the circuit clerk when the district court
has decided the motion on remand.

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Each party shall bear its own costs.
REMANDED with instructions.