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Banos v. Godfrey

United States District Court, W.D. Washington, Seattle

June 4, 2019

ARTURO MARTINEZ BAÑOS, et al., Plaintiffs-Petitioners,
ELIZABETH GODFREY, et al., Defendants-Respondents.


          James L. Robart United States District Judge.


         Before the court is Defendants-Respondents Elizabeth Godfrey, Lowell Clark, Thomas D. Homan, James McHenry, William Barr, and Kevin McAleenan's[1](collectively, “the Government”) Federal Rule of Civil Procedure 60 motion for relief from the court's final order. (See Mot. (Dkt. # 95).) Petitioners Edwin Flores Tejada and German Ventura Hernandez, [2] on behalf of themselves and on behalf of others who are similarly situated (collectively, “Petitioners”), oppose the motion. (Resp. (Dkt. # 97).) The court has reviewed the motion, all submissions filed in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. Being fully advised, [3] the court DEFERS RULING on the motion.


         On September 14, 2016, Petitioners filed a habeas corpus petition and class action complaint on behalf of themselves and other similarly-situated detained noncitizens in withholding of removal only proceedings under 8 C.F.R. § 1208.31(e), challenging the Government's refusal to provide them with custody redetermination hearings. (Petition (Dkt. # 1); see also Am. Petition.) On December 11, 2017, the court certified a class comprising of “[a]ll individuals who (1) were placed in withholding only proceedings under 8 C.F.R. § 1208.31(e) in the Western District of Washington after having a removal order reinstated, and (2) have been detained for 180 days (a) without a custody hearing or (b) since receiving a custody hearing.” (See 12/11/17 Order (Dkt. # 70) (adopting report and recommendation); see also 10/17/17 R&R (Dkt. # 67) at 17.)

         On January 23, 2018, Magistrate Judge Brian A. Tsuchida issued a report and recommendation concluding that Plaintiffs were entitled to summary judgment on their statutory claim that the Immigration and Nationality Act (“INA”) provides class members with custody redetermination hearings before an immigration judge after six months of detention. (1/23/18 R&R (Dkt. # 77).) A proposed order, declaring that the government violated 8 U.S.C. § 1231(a)(6) by failing to provide custody hearings to class members, accompanied the report and recommendation. (SJ Order (Dkt. # 77-1) ¶ 6.) The proposed order required the Government to (1) provide custody hearings to each class member “as soon as the individual's detention reaches 180 days (id. ¶ 8); (2) provide periodic custody hearings to class members “at every 180-day mark of their detention” (id. ¶ 10); (3) “provide simultaneous notice of class members' custody hearings to both class members and class counsel” (id. ¶ 13); and (4) notify class members in the event “the Government determines that an individual is not a class member” even though the individual meets the criteria outlined by the class definition (id. ¶ 14). The proposed order did not contain an end date or time limit for these requirements. (See generally id.) On February 7, 2018, the Government filed its objections to the report and recommendation but did not object to any specific aspect of the proposed order. (See generally 2/7/18 Objections (Dkt. # 78).)

         On April 4, 2018, the court adopted the January 23, 2018, report and recommendation “in its entirety, ” including the proposed order. (See 4/4/18 Order (Dkt. # 83) at 1.) The parties filed a stipulated motion to extend to the deadlines for the Government to begin conducting bond hearings pursuant to the order, which the court granted. (Stip. Mot. (Dkt. # 86); 4/25/18 Order (Dkt. # 87) (granting stipulated motion).) Since May 23, 2018, the Government has emailed class counsel once a week notifying class counsel of the bond hearings provided to class members, if any, pursuant to the court's order. (See Maltese Decl. (Dkt. # 98) ¶ 4, Ex. A.) There is no allegation that the Government has not fully complied with the court's April 4, 2018, order. (See generally Resp.; see also 5/11/18 Status Report (Dkt. # 88).)

         On May 30, 2018, the Government appealed this court's judgment to the Ninth Circuit Court of Appeals. (Not. of Appeal (Dkt. # 93).) The Government now seeks relief from this court under Rule 60 from the reporting requirements under paragraphs 13 and 14 of this court's final order. (See Mot. at 2; SJ Order at 13-14.) The court now considers the Government's motion.

         III. ANALYSIS

         The Government brings its motion pursuant to Federal Rules of Civil Procedure 60(b)(1) and 60(b)(6). (See Mot. at 5-6 (citing Fed.R.Civ.P. 60(b)(1), (6)).) In response, Petitioners assert that the court lacks jurisdiction over the Government's motion due to the Government's pending appeal. (Resp. at 5-6.)

         The general rule is that a notice of appeal confers jurisdiction on the court of appeals and divests the district court of jurisdiction with respect to the matters involved in the appeal. See, e.g., Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 59 (1982); McClatchy Newspapers v. Cent. Valley Typographical Union No. 46, 686 F.3d 731, 734 (9th Cir. 1982). A district court may, however, “retain[] jurisdiction during the pendency of an appeal to act to preserve the status quo.” Nat. Res. Def. Council v. Sw. Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). As the Government point out in its reply, Federal Rule of Civil Procedure 62(d) allows a district court to “suspend, modify, restore, or grant an injunction” while an appeal is pending. (See Reply (Dkt. # 99) at 2-3 (citing Fed.R.Civ.P. 62(d)).) However, Rule 62(d) grants the district court “no broader power than it has always inherently possessed to preserve the status quo during the pendency of an appeal.” Sw. Marine, 242 F.3d at 1166. Rule 62(d) “does not restore jurisdiction to the district court to adjudicate anew the merits of the case.” McClatchy Newspapers, 686 F.2d at 734. The Government's motion does not seek to “preserve the status quo”; it seeks instead to alter the status quo by removing certain requirements to notify class members and their counsel under the injunction. Thus, the court concludes that Rule 62(d) does not provide a basis for exercising jurisdiction over Defendants' motion.

         Nevertheless, under Rule 62.1(a), if a party brings a motion “that the court lacks authority to grant because . . . an appeal . . . is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.” Fed.R.Civ.P. 62.1. Thus, although the court lacks authority to grant Defendants' Rule 60(b) motion without a remand from the Ninth Circuit, it has jurisdiction to deny the motion on the merits, defer consideration of the motion, or issue an indicative ruling. See id.; see also Out of the Box Enters., LLC v. El Paseo Jewelry Exch., Inc., 737 Fed.Appx. 304, 305 (9th Cir. 2017) (unpublished). Here, for the reasons stated below, the court DEFERS RULING on the motion pursuant to Rule 62.1(a)(1) until after the Government's appeal before the Ninth Circuit is complete.

         Defendants argue that the court should rescind its “indefinite” reporting requirement for two reasons. First, the Government asserts that, given the presumption of regularity that attaches to government agencies' actions, the court's indefinite reporting requirement must have been either a “mistake or inadvert[ent].” (See Mot. at 7-9 (relying upon Fed.R.Civ.P. 60(b)(1)).) Second, the Government asserts that, given the Government's year-long track record of compliance with the court's order, the court should remove the reporting requirement because it places an “exceptional burden” on the Government. (See Id. at 9-12 (relying on Fed.R.Civ.P. 60(b)(6)).)

         Even assuming the court should terminate the final order's reporting requirements at some point in time, [4] the Government fails to demonstrate that termination should occur prior to the completion of its Ninth Circuit appeal. Indeed, the Government provided no evidence to support its allegations of “exceptional burden” when it initially filed its motion. (See Mot. at 11; see generally Dkt.) After Petitioners noted this lack of evidence in their response (Resp. at 11), the Government provided two declarations in conjunction with its reply to support its assertions of undue burden (see Neifert Decl. (Dkt. # 99-1); Guzm├ín Decl. (Dkt. # 99-2)). ...

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