Northwest Immigrant Rights Project et al v. United States Citizenship and Immigration Services et al

Filing 145

ORDER concerning parties' letter briefs (Dkts. 137 , 138 ). The court (1) declines to require full compliance with its injunction by a date certain, and (2) declines to require individuals who seek to compel Defendants to adjudicate a specific EAD application to file their action in this court. Signed by Judge James L. Robart. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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WILMAN GONZALEZ ROSARIO,
et al.,

CASE NO. C15-0813JLR
ORDER

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Plaintiffs,
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v.
U.S. CITIZENSHIP AND
IMMIGRATION SERVICES, et al.,
Defendants.

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I.

INTRODUCTION

Before the court are two letter briefs filed by the parties. (Plf. Ltr. (Dkt. # 138);

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Def. Ltr. (Dkt. # 139).) The parties filed these letters pursuant to a stipulated order

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directing them to do so. (See Stip. Order (Dkt. # 137).) The parties ask the court to

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resolve two disputes concerning the parties’ agreed plan to implement the court’s

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injunction in this matter. (See generally Plf. Ltr.; Def. Ltr.; see also Agreed Imp. Plan

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(Dkt. # 134-1); SJ Order/Injunction (Dkt. # 127).) In addition to their initial filings, the

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court ordered the parties to simultaneously file responsive letters (11/15/18 Order (Dkt.

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# 140)), and those letters are also before the court (Plf. Resp. Ltr. (Dkt. # 141); Def. Resp.

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Ltr. (Dkt. # 142)). Based on the parties’ initial and responsive letters, the court resolves

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the parties’ disputes as described below.

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II.

BACKGROUND

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On July 18, 2017, the court granted in part and denied in part Plaintiffs’ motion for

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class certification. (CC Order (Dkt # 95) at 27.) The court certified a class of noncitizens

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who have filed or will file applications for employment authorization that were not or

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will not be adjudicated within 30 days and who have not or will not be granted interim

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employment authorization. (Id. at 26.) The court further stated that the class consists of

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only those applicants for whom 30 days has accrued or will accrue under the applicable

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regulation, 8 C.F.R. §§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4). (Id. at 27.)

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On July 26, 2018, the court granted Plaintiffs’ motion for summary judgment and

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found Defendants in violation of 8 C.F.R. § 208.7(a)(1). (SJ Order at 12.) The court also

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enjoined Defendants “from further failing to adhere to the 30-day deadline for

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adjudicating [employment authorization document (“EAD”)] applications [for asylum

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seekers], as set forth in 8 C.F.R. § 208.7(a)(1).” (Id.) Finally, the court ordered

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Defendants “to submit status reports every six (6) months regarding the rate of

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compliance with the 30-day timeline.” (Id.) At the time of the order, Defendants’ own

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data revealed that from 2010 to 2017, Defendant U.S. Citizenship and Immigration

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Services (“USCIS”) met the 30-day deadline in in only 22% of cases. (See id. at 3.)

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On September 14, 2018, the parties submitted a joint plan for implementation of

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the court’s order and injunction. (Joint Statement (Dkt. # 134); see also Agreed Imp.

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Plan.) Nevertheless, the parties stated they had not been able to come to agreement on

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two points: “(1) whether the [c]ourt should specify specific rates of compliance for

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employment authorization document (EAD) adjudication as part of an implementation

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order and what those rates should be; [and] (2) the appropriate venue for filing any

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Federal District Court action where an EAD application is not adjudicated in compliance

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with this [c]ourt’s order, after the individual has complied with the steps set forth in the

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implementation plan.” (Joint Statement at 1.) The parties asked the court if they could

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“simultaneously file short letter-briefs of no more than three pages addressing these two

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issues” and have the court “resolve this lingering dispute.” (Id.) On October 3, 2018, the

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court entered an order consistent with the parties’ stipulated motion. (10/3/18 Order

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(Dkt. # 137); see also Plf. Ltr.; Def. Ltr.) At the direction of the court, the parties also

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simultaneously filed responsive letters. (11/15/18 Order; Plf. Resp. Ltr.; Def. Resp. Ltr.)

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On September 21, 2018, Defendants filed a notice of appeal concerning the court’s
summary judgment order and injunction. (Not. of App. (Dkt # 135).)
On January 25, 2019, Defendants submitted their first status report pursuant to the

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court’s order. (Status Report (Dkt. # 144); see also SJ Order at 12.) Defendants’ status

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report indicates that Defendants achieved a 96.3% compliance rate with 8 C.F.R.

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§ 208.7(a)(1) in December 2018, and an average compliance rate of 92.7% for the final

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quarter of 2018. (Status Report at 2; see also Status Report Ex. A (Dkt. # 144-1) at 3.)

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The court now considers the issues presented in the parties’ letters.

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III.
A.

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ANALYSIS

Jurisdiction
Because Defendants filed a notice of appeal (Not. of App. (Dkt. # 135)), the court

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initially considers its jurisdiction. The filing of a notice appeal generally divests the

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district court of jurisdiction over the matters appealed. McClatchy Newspapers v. Cent.

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Valley Typographical Union No. 46, Int’l Typographical Union, 686 F.2d 731, 734 (9th

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Cir. 1982), amended sub nom. McClatchy Newspaper v. Local 46 (9th Cir. Sept. 22,

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1982). Nevertheless, the district court retains jurisdiction to enforce an injunction under

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certain exceptions to this rule. First, Federal Rule of Civil Procedure 62(d) provides that

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“[w]hile an appeal is pending from . . . [a] final judgment that grants . . . an injunction,

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the court may suspend, modify, restore or grant an injunction on terms for bond or other

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terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(d). Second, until its

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judgment is superseded on appellate review, the district court retains jurisdiction to

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enforce the injunction and to preserve the status quo. See Nat. Res. Def. Council, Inc. v.

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Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001); Robinson v. Delgado, No.

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1:02-CV-01538-NJV, 2012 WL 4753493, at *1 (N.D. Cal. Oct. 4, 2012). Thus, the court

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concludes that it retains jurisdiction to consider the issues that the parties have stipulated

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to place before this court.

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B.

Rates of Compliance

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Plaintiffs argue that the court should require Defendants to be in full compliance

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with 8 C.F.R. § 208.7(a)(1) by a date certain instead of simply requiring 6-month status

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reports. (Plf. Ltr. at 1.) Defendants assert that an order specifying Defendants’ rate of

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compliance would be an improper modification of the court’s injunction and would

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improperly curtail the scope of the court’s adjudication of Defendants’ “substantial

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compliance” with the injunction if Plaintiffs were to pursue an enforcement action. (Def.

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Ltr. at 2.)

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The court agrees that adding such a provision to the injunction when the court has

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already specified that Defendants are to submit status reports at regular intervals would

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be an improper modification to the court’s injunction. A party seeking to modify an

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injunction bears the burden of establishing that a significant change in circumstances

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warrants a revision of the injunction. See Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S.

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367, 383 (1992). Here, even if the court had jurisdiction to order such a change, see

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supra § III.A., Plaintiffs have failed to meet their burden. Defendants’ January 25, 2019,

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status report demonstrates clear improvement in Defendants’ compliance rates. (See

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Status Report.) Given that the adjudication rate reflects significant improvement since

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the court entered its injunction, modification of the court’s injunction to include specific

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rates of compliance is not justified by any change in the law or facts.

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Further, if Plaintiffs at some point allege that Defendants have failed to comply

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with the court’s injunction, their remedy is a motion for civil contempt. Civil contempt is

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defined as “a party’s disobedience to a specific and definite court order by failure to take

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all reasonable steps within the party’s power to comply.” Reno Air Racing Ass’n., Inc. v.

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McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). As Defendants point out, substantial

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compliance is a defense to civil contempt. Gen. Signal Corp. v. Donallco, Inc., 787 F.2d

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1376, 1379 (9th Cir. 1986). “If a violating party has taken all reasonable steps to comply

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with the court order, technical or inadvertant [sic] violations of the order will not support

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a finding of civil contempt.” Id. (internal quotations omitted); see also Kelly v. Wengler,

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822 F.3d 1085, 1096 (9th Cir. 2016) (“A contemnor in violation of a court order may

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avoid a finding of civil contempt only by showing it took all reasonable steps to comply

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with the order.”) (italics in original). Thus, the court concludes that adoption of specific

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rates of compliance would not be appropriate because such rates would invite the

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possibility of arbitrary enforcement actions that would fail to take into account the

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reasonable steps that Defendants take to comply with the court’s order.

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Based on the foregoing analysis, the court declines to require Defendants to be in

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full compliance with 8 C.F.R. § 208.7(a)(1) by a date certain.

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C.

Venue for Future Individual Actions

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The parties agree that only this court has jurisdiction to enforce compliance with

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issues that affect all or a substantial part of the class. (Plf. Resp. Ltr. at 3; Def. Ltr. at 3

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(“[T]o the extent that Plaintiffs seek enforcement of this [c]ourt’s injunction . . . on a[]

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. . . class-wide basis—the only proper venue is in this [c]ourt.”). The parties disagree on

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whether this court is the only court to have jurisdiction over an action filed by an

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individual class member seeking to compel adjudication of his or her individual EAD

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application. Plaintiffs argue that any district court that would otherwise have venue

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should be able to adjudicate individual plaintiffs’ claims to compel timely adjudication of

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their individual EAD applications. (Plf. Ltr. at 2-3; Plf. Resp. Ltr. at 3.) Defendants

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insist that all such individual claims must be filed in this court. (Def Ltr. at 3; Def. Resp.

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Ltr. at 1-2.)

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Defendants’ position is both practically problematic and legally incorrect. As

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Plaintiffs point out, there were over 200,000 initial asylum EAD applications filed in

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Fiscal Years 2017 and 2018. (See Plf Ltr. at 2, Ex. A.) The class is numerous and

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inherently transitory. As such, there will be class members in various locations

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throughout the country who may wish to file mandamus or Administrative Procedure Act

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district court actions if their EAD applications are not decided within 30 days. Requiring

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all of these actions to be filed in this court would represent an unreasonable and

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unwarranted burden on both this court and the individual plaintiffs who may be involved.

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Further, any such district court action would require examination of more than what this

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court already decided—that USCIS is obligated to comply with the 30-day deadline in 8

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C.F.R. § 208.7(a)(1). (See generally SJ Order.) For example, based on the specific facts

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alleged, such individual actions may require the court to engage in additional factual

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inquiry to determine whether the 30-day clock has run, whether the EAD application was

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complete, and whether the individual met the requirements of the implementation plan,

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was responsible for any delay, or had been convicted of an aggravated felony.

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This court’s binding resolution of the common question whether USCIS is

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obligated to adjudicate initial asylum EADs within 30 days is distinct from the factual

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questions that may arise in individual actions. The general principle of class litigation is

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that court may resolve common questions—in this case the 30-day deadline—but

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individual, future claims for individualized relief can still be brought separately. See,

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e.g., Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 881 (1984) (observing that

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Rule 23 class action procedures are designed to provide a mechanism for the expeditious

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decision of common questions, but would not bar later exclusively individual claims); In

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re TFT-LCD (Flat Panel) Antitrust Litig., No. M 07-1827 SI, 2012 WL 273883, at *3

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(N.D. Cal. Jan. 30, 2012) (“[A] Rule 23(b)(2) judgment, with its one-size-fits-all

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approach and its limited procedural protections, will not preclude later claims for

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individualized relief.”); Cameron v. Tomes, 990 F.2d 14, 17 (1st Cir. 1993) (“[I]n

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Cooper, . . . the Supreme Court confirmed what common sense would suggest: a class

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action judgment . . . binds the class members as to matters actually litigated but does not

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resolve any claim based on individual circumstances that was not addressed in the class

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action.”).

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Thus, the court concludes that any class-wide relief requested by either Plaintiffs

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or Defendants, including any contempt motions, are properly directed to this court.

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However, the class certification order in this case does not preclude individual class

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members from filing separate actions in other appropriate forums because the delay in a

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particular case involves individual circumstances and would require the court to go

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beyond the legal issues already decided by this court.

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IV.

CONCLUSION

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Based on the foregoing analysis, the court (1) declines to require full compliance

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with its injunction by a date certain, and (2) declines to require individuals who seek to

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compel Defendants to adjudicate a specific EAD application to file their action in this

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court.

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Dated this 20th day of March, 2019.

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A

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JAMES L. ROBART
United States District Judge

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