Hassoun v. Searls ( 2020 )

20-2056
Hassoun v. Searls
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2020
No. 20-2056-cv
ADHAM AMIN HASSOUN,
Petitioner-Appellee,
v.
JEFFREY SEARLS, IN HIS OFFICIAL CAPACITY AS ACTING ASSISTANT
FIELD OFFICE DIRECTOR AND ADMINISTRATOR OF THE BUFFALO
FEDERAL DETENTION FACILITY,
Respondent-Appellant.
On Motions to Dismiss and to Vacate the District Court’s Decisions
and Order Granting Judgment to Appellee, and to Vacate the
Opinion Granting the Government’s Motion for a Stay
SUBMITTED: SEPTEMBER 4, 2020
DECIDED: SEPTEMBER 22, 2020
Before: CABRANES, SULLIVAN, and MENASHI, Circuit Judges.
On July 21, 2020, the government removed Adham Amin
Hassoun from the United States. The removal mooted the
government’s appeal of an order of the U.S. District Court for the
Western District of New York (Wolford, J.), directing the government
to release Hassoun from immigration detention. The government
now moves to dismiss the appeal as moot and requests vacatur of the
district court’s decisions related to 8 C.F.R. § 241.14(d), a regulation
that the government had invoked to detain Hassoun. Hassoun
opposes the government’s request for vacatur and separately requests
vacatur of this court’s opinion granting the government’s motion for
a stay pending appeal. After concluding that the case is moot and
considering the equities, we DENY Hassoun’s motion to vacate this
court’s opinion granting the government’s motion for a stay pending
appeal, and we GRANT the government’s motion to VACATE the
district court’s decisions related to 8 C.F.R. § 241.14(d), DISMISS the
appeal as moot, and REMAND to the district court with instructions
to dismiss Hassoun’s challenge to his detention under 8 C.F.R.
§ 241.14(d) as moot.
Jonathan Hafetz (Brett Max Kaufman, Charles Hogle,
Judy Rabinovitz, Celso Perez, for the American Civil
Liberties Union Foundation, New York, NY; Scott
Michelman, Arthur B. Spitzer, for the American Civil
Liberties Union Foundation of the District of Columbia,
Washington, DC; A. Nicole Hallett, for the Mandel Legal
Aid Clinic, University of Chicago Law School, Chicago,
IL; Jonathan Manes, for the Roderick & Solange
MacArthur Justice Center, Chicago, IL, on the brief), for
Petitioner-Appellee.
Steven A. Platt, Counsel for National Security (Ethan P.
Davis, Acting Assistant Attorney General; William C.
Peachey, Director; Timothy M. Belsan, Chief; John J.W.
2
Inkeles, Counsel for National Security, for the Office of
Immigration Litigation, United States Department of
Justice, Washington, DC; Daniel B. Moar, Assistant
United States Attorney, for James P. Kennedy, Jr., United
States Attorney for the Western District of New York,
Buffalo, NY, on the brief), for Respondent-Appellant.
Stephen I. Vladeck, Austin, TX, for amicus curiae Stephen
I. Vladek.
MENASHI, Circuit Judge:
On June 29, 2020, the U.S. District Court for the Western District
of New York ordered the government to release Adham Amin
Hassoun from immigration detention. Hassoun v. Searls, No. 19-CV-
370, 2020 WL 3496302, at *19 (W.D.N.Y. June 29, 2020). While the
government’s appeal of that order was pending, the government
“successfully removed Hassoun pursuant to his final order of
removal from the United States to a third county.” Appellant’s Notice
of Removal, Hassoun v. Searls, 968 F.3d 190 (2d Cir. 2020) (No. 20-
2056), ECF No. 72.
The government now moves to dismiss this appeal as moot and
requests vacatur of the district court’s decisions related to 8 C.F.R.
§ 241.14(d), a regulation that the government had invoked as
authority for Hassoun’s continued detention. See, e.g., Hassoun v.
Searls, 427 F. Supp. 3d 357 (W.D.N.Y. 2019). Hassoun does not oppose
the government’s motion to dismiss the appeal as moot but opposes
vacatur of the district court’s decisions related to 8 C.F.R. § 241.14(d).
In addition, Hassoun requests vacatur of this court’s opinion granting
the government’s motion for a stay pending appeal.
3
“When a civil case becomes moot pending appellate
adjudication, ‘the established practice in the federal system is to
reverse or vacate the judgment below and remand with a direction to
dismiss.’” Arizonans for Off. English v. Arizona, 520 U.S. 43, 71 (1997)
(alterations omitted). Federal courts follow this practice “to prevent a
judgment, unreviewable because of mootness, from spawning any
legal consequences.” United States v. Munsingwear, Inc., 340 U.S. 36, 41
(1950). Because the district court’s decisions related to 8 C.F.R.
§ 241.14(d) could have legal consequences in future litigation between
the parties, those decisions should be vacated so that “the rights of all
parties are preserved.” Id. at 40.
In contrast, this court’s opinion granting the government’s
motion for a stay pending appeal does not warrant vacatur because it
does not have legal consequences for the parties. A decision
concerning a stay is not a final adjudication on the merits of an appeal
and lacks preclusive effect. We therefore deny Hassoun’s motion to
vacate this court’s opinion granting the government’s motion for a
stay pending appeal, and we grant the government’s motion to vacate
the district court’s decisions related to 8 C.F.R. § 241.14(d), dismiss the
appeal as moot, and remand to the district court with instructions to
dismiss Hassoun’s challenge to his detention under 8 C.F.R.
§ 241.14(d) as moot.
BACKGROUND
In 2003, Hassoun was ordered removed from the United States
for violating the terms of his non-immigrant visa. Before he could be
deported, Hassoun was taken into custody on federal criminal
charges of conspiracy to murder, kidnap, and maim persons overseas;
of conspiracy to provide material support to terrorists; and of
4
providing material support to terrorists. He was convicted of those
charges and sentenced principally to a 188-month term of
imprisonment.
Upon his release from prison in October 2017, Hassoun was
placed in immigration detention under 8 U.S.C. § 1231(a)(6), pending
his removal from the United States. He then petitioned for a writ of
habeas corpus. The district court granted Hassoun’s petition and
ruled that the government could not continue detaining Hassoun
under 8 U.S.C. § 1231(a)(6) because there was not a significant
likelihood that the government would remove him from the United
States in the reasonably foreseeable future. Hassoun v. Sessions, No. 18-
CV-586, 2019 WL 78984, at *1, *6 (W.D.N.Y. Jan. 2, 2019) (applying the
framework of Zadvydas v. Davis, 533 U.S. 678, 701 (2001)).
Subsequently, the government invoked 8 C.F.R. § 241.14(d) and
8 U.S.C. § 1226a as additional authorities to allow it to continue
detaining Hassoun.
In March 2019, Hassoun filed another petition for a writ of
habeas corpus, challenging his continued detention under 8 C.F.R.
§ 241.14(d) and 8 U.S.C. § 1226a. In December 2019, the district court
held that “8 C.F.R. § 241.14(d) is … a legal nullity that cannot
authorize” Hassoun’s continued detention, Hassoun, 427 F. Supp. 3d
at 372, and subsequently ordered the government to release him,
Hassoun, 2020 WL 3496302, at *19. The district court also denied the
government’s request for a stay pending appeal. Id.
The government appealed the district court’s decisions related
to 8 C.F.R. § 241.14(d) to this court and moved for an administrative
stay and a stay pending appeal. See Emergency Mot. for Stay Pending
Appeal, Hassoun, 968 F.3d 190 (No. 20-2056), ECF No. 9. This court
5
entered an administrative stay until July 15, so that the government’s
motion for a stay pending appeal could be considered by a three-
judge panel. Order, Hassoun, 968 F.3d 190 (No. 20-2056), ECF No. 16.
On July 13, before the administrative stay expired, the court entered
a temporary extension of the administrative stay to ensure that it had
adequate time to consider the government’s motion. Order, Hassoun,
968 F.3d 190 (No. 20-2056), ECF No. 41. On July 16, after due
consideration, the court granted the government’s motion for a stay
pending appeal and noted that “[a]n opinion will be forthcoming.”
Order, Hassoun, 968 F.3d 190 (No. 20-2056), ECF No. 60. That opinion
was published on July 30. Hassoun, 968 F.3d 190.
During the court’s consideration of the government’s motion,
the government periodically updated the court on the status of its
attempts to remove Hassoun. On July 13, the government filed a
notice claiming “material progress in achieving [Hassoun’s] removal
from the United States” and that “[a]bsent an extraordinary or
unforeseen circumstance, the government intends to remove
[Hassoun] from the United States by July 27, 2020.” Consented Mot.
to Extend Administrative Stay, Hassoun, 968 F.3d 190 (No. 20-2056),
ECF No. 43. On July 20, the government again notified the court that
“U.S. Immigration and Customs Enforcement (ICE) intends to
remove … Hassoun from the United States to a third country during
the week of July 20, 2020,” and, for the first time, that “[t]he U.S.
government has reached an agreement with a third country to accept
Petitioner upon his removal from the United States.” Appellant’s
Notice of Intent to Remove, Hassoun, 968 F.3d 190 (No. 20-2056), ECF
No. 67. Finally, on July 22, the government filed a notice that Hassoun
had been removed from the United States the previous day.
Appellant’s Notice of Removal, Hassoun, 968 F.3d 190 (No. 20-2056),
6
ECF No. 72; see also Pet’r-Appellee’s Notice of Removal, Hassoun, 968
F.3d 190 (No. 20-2056), ECF No. 71.
On August 5, following Hassoun’s removal, the government
moved to dismiss this appeal as moot and requested that we vacate
the district court’s decisions related to 8 C.F.R. § 241.14(d).
Appellant’s Mot. to Dismiss and to Vacate, Hassoun, 968 F.3d 190 (No.
20-2056), ECF No. 82 (“Gov’t Mot.”). Though Hassoun agrees with the
government that the appeal is now moot, he opposes vacatur of the
district court’s decisions. Pet’r-Appellee’s Opp’n to Resp’t’s Mot. to
Vacate, Hassoun, 968 F.3d 190 (No. 20-2056), ECF No. 86 (“Hassoun
Opp’n”). In addition, Hassoun filed his own motion, requesting that
the court vacate its opinion granting the government’s motion for a
stay pending appeal. Pet’r-Appellee’s Mot. to Vacate, Hassoun, 968
F.3d 190 (No. 20-2056), ECF No. 87 (“Hassoun Mot.”).
We have jurisdiction to consider the parties’ motions to dismiss
and for vacatur for the reasons set out in our opinion granting the
government’s motion for a stay pending appeal. See Hassoun, 968 F.3d
at 195-98. Both parties’ motions raise the question of mootness.
“[W]hen a case becomes moot, the federal courts lack subject matter
jurisdiction over the action.” Doyle v. Midland Credit Mgmt., Inc., 722
F.3d 78, 80 (2d Cir. 2013) (quoting Fox v. Bd. of Trs. of State Univ. of
N.Y., 42 F.3d 135, 140 (2d Cir. 1994)). Thus, “[w]henever mootness
occurs, the court … loses jurisdiction over the suit, which therefore
must be dismissed.” Russman v. Bd. of Educ. of Enlarged City Sch. Dist.
of Watervliet, 260 F.3d 114, 118-19 (2d Cir. 2001). Of course, we have
jurisdiction to resolve questions about our jurisdiction. United States
v. Shipp, 203 U.S. 563, 573 (1906); Roth v. McAllister Bros., 316 F.2d 143,
145 (2d Cir. 1963) (“[A] tribunal always possesses jurisdiction to
determine its jurisdiction.”).
7
DISCUSSION
No one disputes that this case has become moot, given that
Hassoun has been removed from the United States. See, e.g., Nieto-
Ayala v. Holder, 529 F. App’x 55, 55 (2d Cir. 2013) (summary order).
But the parties disagree about when that occurred. The government
claims that “this case was mooted [on July 21] after a third country
agreed to allow Hassoun to remain within its borders and when the
government in turn effectuated its mandatory obligation to remove
him.” Gov’t Mot. 2. Hassoun, on the other hand, claims that this case
“became practically moot upon the government’s July 13 notice that
[Hassoun’s] removal would take place ‘[a]bsent an extraordinary or
unforeseen circumstance’ by July 27.” Hassoun Mot. 6.
The parties also disagree about the consequences of mootness.
The government requests vacatur of the district court’s decisions
related to 8 C.F.R. § 241.14(d) because it is now unable to challenge
those rulings. Hassoun opposes vacatur of the district court’s
decisions related to 8 C.F.R. § 241.14(d), arguing that “[t]he
government’s active role in mooting this case makes vacatur
unwarranted.” Hassoun Opp’n 8. He also requests vacatur of this
court’s opinion granting the government’s motion for a stay pending
appeal on the ground that the case was practically moot when the
government’s motion was granted.
I
Hassoun contends that the government’s appeal was
“practically moot” on July 13, Hassoun Mot. 1, when the government
filed a consented motion for a stay claiming “material progress in
achieving [Hassoun’s] … removal from the United States,” Consented
Mot. to Extend Administrative Stay, Hassoun, 968 F.3d 190 (No. 20-
8
2056), ECF No. 43. The government had previously represented to the
district court that it planned to remove Hassoun, but those prior plans
did not materialize. In response to Hassoun’s first habeas petition, for
example, the government told the district court that Hassoun’s
removal was “significantly likely in the reasonably foreseeable
future” and that it had found a country “willing to issue travel
documents” to Hassoun. Hassoun, 2019 WL 78984, at *1-2. After that
representation, however, “[o]bstacles … ar[o]se[]” and Hassoun was
not removed. Id. at *2.
Regardless of the weight given to the government’s
representation on July 13, the controversy between the parties
remained live as long as Hassoun was detained. “A case becomes
moot only when it is impossible for a court to grant any effectual relief
whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, 567
U.S. 298, 307 (2012) (internal quotation marks omitted). Hassoun’s
habeas petition requested that “the government … release Mr.
Hassoun immediately.” Am. Verified Pet. at 20, Hassoun v. Searls, 2020
WL 3496302 (No. 19-CV-370), ECF No. 13. Hassoun was still detained
on July 13—and he remained so until July 21. Because Hassoun
sought release from custody and the government was unwilling to
release him, a court still could grant effectual relief and the case was
not moot. Indeed, the government sought to continue detaining
Hassoun despite the district court’s order that he be released and filed
a motion for a stay pending appeal in this court, and Hassoun
opposed that motion. 1
1 Although the parties agreed to extend the briefing schedule on the
motion, neither party abandoned its position with respect to the lawfulness
of Hassoun’s detention or the propriety of a stay pending appeal. In a case
of even greater agreement between the parties, the en banc D.C. Circuit
9
Hassoun’s argument draws on the Supreme Court’s decision in
Zadvydas, which interpreted 8 U.S.C. § 1231(a)(6) to allow the
government to hold an alien in confinement “until it has been
determined that there is no significant likelihood of removal in the
reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. Under that
framework, “once the alien provides good reason to believe that there
is no significant likelihood of removal in the reasonably foreseeable
future, the Government must respond with evidence sufficient to
rebut that showing” for 8 U.S.C. § 1231(a)(6) to continue to authorize
the detention. Id. Assuming that Hassoun had provided “good reason
to believe that there [was] no significant likelihood of removal in the
reasonably foreseeable future,” we doubt that the government’s
unsworn assertion that it expected to be able to remove Hassoun—in
the context of this case, in which it had made such assertions before—
amounts to the sort of “evidence” the Zadvydas Court would have
found “sufficient to rebut that showing.” 2 But we need not resolve
that question for two reasons.
recently held that that a criminal case was not moot despite the fact that
“the Government has filed a motion to dismiss and Petitioner (defendant
below) consents” because “there remains a case or controversy unless and
until that motion is granted by the District Court.” In re Flynn, No. 20-5143,
2020 WL 5104220, at *1 n.2 (D.C. Cir. Aug. 31, 2020). Here, there remained
a case or controversy unless and until Hassoun obtained the release he
sought in his petition and the government no longer sought to detain him.
2 The government acknowledges that in its July 13 filing, it “did not
represent to the Court that removal was a certainty.” Appellant’s Opp’n to
Appellee’s Mot. To Vacate at 6, Hassoun, 968 F.3d 190 (No. 20-2056), ECF
No. 107. The government also acknowledges that it had previously
represented similar confidence that it would likely remove Hassoun in 2018
and 2019, but “those efforts did not succeed at that time.” Id. at 10.
10
 First, even if the government were detaining Hassoun pursuant
to 8 U.S.C. § 1231(a)(6), and even if it had established a significant
likelihood of Hassoun’s removal in the reasonably foreseeable future,
that would not render the case moot. The case would remain live as
long as the petitioner was detained and the government refused to
grant his release. A significant likelihood of removal would affect
only the merits question of whether continued detention under
§ 1231(a)(6) was properly authorized. A case does not become moot
when an intervening change merely affects the parties’ arguments on
the merits without depriving the court of the ability to provide
effectual relief to the prevailing party.
Second, the government was not detaining Hassoun pursuant
to § 1231(a)(6), and therefore the legality of its continued detention
did not depend on whether there was a significant likelihood of
removal in the reasonably foreseeable future. Rather, the government
continued to detain Hassoun pursuant to 8 C.F.R. § 241.14(d), which
authorizes the detention of removable aliens based on a showing of
security or terrorism concerns. In fact, the government did not appeal
the ruling, made on Hassoun’s first habeas petition, that 8 U.S.C.
§ 1231(a)(6) did not authorize Hassoun’s continued detention. See
Hassoun, 2020 WL 3496302, at *4; see also Hassoun, 2019 WL 78984, at
*8.
It is true that the government “reserve[d] the right to re-detain
[Hassoun] pursuant to § 1231(a)(6) in the event ‘there again become[s]
a significant likelihood of his removal in the reasonably foreseeable
future.’” Hassoun, 2020 WL 3496302, at *4 n.5. But the government
never sought to “re-detain” Hassoun under § 1231(a)(6), and in any
event that development would not moot the appeal before this court,
11
which concerned only whether detention was authorized under
8 C.F.R. § 241.14(d).
When this court resolved the government’s motion for a stay
pending appeal on July 16, there was still a live case concerning
whether the government was lawfully permitted to detain Hassoun
under 8 C.F.R. § 241.14(d). The court could, and did, provide
“effective relief” in the form of an order permitting continued
detention pending resolution of the appeal. Cap. Commc’ns Fed. Credit
Union v. Boodrow (In re Boodrow), 126 F.3d 43, 47 (2d Cir. 1997).
Recognizing the lack of actual mootness, 3 Hassoun offers a
different argument: that even if this court’s order on the stay motion
was proper when it was issued, the court should not have
subsequently issued an opinion explaining that order because the
government had already removed Hassoun from the United States by
the time the opinion was published.
When we granted the government’s motion for a stay pending
appeal on July 16, we noted that “[a]n opinion will be forthcoming.”
Order, Hassoun, 968 F.3d 190 (No. 20-2056), ECF No. 60. This is a
common practice. 4 To resolve the motion, we were required to “bring
3 See Hassoun Mot. 11 (admitting that, at least as a “formal matter, the
government’s appeal was not moot until the government relinquished
custody of [Hassoun] by freeing him in another country on July 2[1]”).
4 See, e.g., Yang v. Kosinski, 805 F. App’x 63, 65 (2d Cir. 2020) (summary
order) (issuing an order and noting that while “[t]he mandate shall issue
forthwith,” “[a]n opinion of this Court will follow explaining its reasoning
in further detail”); United States v. Watkins, 940 F.3d 152, 157 (2d Cir. 2019)
(noting that “we entered an order denying Watkins’s motion for bail, ‘with
an opinion forthcoming’”); Chevron Corp. v. Naranjo, No. 11-1150, 2011 WL
4375022, at *1 (2d Cir. Sept. 19, 2011) (dissolving an injunction with an
opinion to “follow in due course”); In re DBSD N.A., Inc., 627 F.3d 496, 497
12
considered judgment to bear” on the four factors that govern the
issuance of a stay. Nken v. Holder, 556 U.S. 418, 427, 434 (2009); see
Hassoun, 968 F.3d at 195 (considering the Nken factors). Because the
court’s opinion explained its previous order—which addressed a live
case or controversy—the opinion was not advisory. See Ex parte
Quirin, 317 U.S. 1, 1, 20 (1942) (issuing an opinion to explain a prior
order in a habeas case that had become moot several months before
the opinion issued); see also Romeu v. Cohen, 265 F.3d 118, 122 (2d Cir.
2001) (explaining a prior order that denied a Puerto Rico resident’s
request for a New York absentee ballot even though the election took
place and mooted the case months before the opinion issued); Little
Rock Sch. Dist. v. Pulaski Cnty. Special Sch. Dist. No. 1, 839 F.2d 1296,
1299-1301 & n.1 (8th Cir. 1988) (explaining a prior order that
permitted an election to proceed months after the election took
place). 5
(2d Cir. 2010) (issuing an order and noting that “[a]n opinion will follow in
due course”); Santiago v. Rumsfeld, 403 F.3d 702, 702 (9th Cir. 2005)
(resolving an “urgent motion for injunction pending appeal” while noting
that “[a]n opinion or opinions will follow in due course”); Wisconsin v.
Weinberger, 736 F.2d 438, 438 (7th Cir. 1984) (vacating an injunction while
noting that “an opinion … will follow in due course”).
5 Hassoun also suggests that the government’s motion for a stay pending
appeal was already moot by July 16 because the government had obtained
relief in the form of an administrative stay. Hassoun Mot. 8; Pet’r-
Appellee’s Reply in Supp. of Mot. to Vacate at 5, Hassoun, 968 F.3d 190 (No.
20-2056), ECF No. 111. But “an appellate court’s power to hold an order in
abeyance while it assesses the legality of the order” is constrained by the
four factors that govern the issuance of a stay. Nken, 556 U.S. at 426, 434.
Accordingly, an administrative stay—which in this case issued only to
provide time for a motions panel to receive and to decide the government’s
motion for a stay pending appeal—cannot be employed to grant a party
effectual relief. It would arguably be an abuse of discretion for a motions
13
II
The government’s appeal is now moot because Hassoun has
been removed from the United States. Accordingly, the “issues
presented are no longer ‘live’” and “the parties lack a legally
cognizable interest in the outcome” of this appeal. Powell v.
McCormack, 395 U.S. 486, 496 (1969).
When a case becomes moot on appeal, “‘[t]he established
practice ... in the federal system ... is to reverse or vacate the judgment
below and remand with a direction to dismiss.’” Arizonans for Off.
English, 520 U.S. at 71; see Bragger v. Trinity Cap. Enter. Corp., 30 F.3d
14, 17 (2d Cir. 1994). “The reason for this is … to avoid giving
preclusive effect to a judgment never reviewed by an appellate court.”
N.Y.C. Emps.’ Ret. Sys. v. Dole Food Co., 969 F.2d 1430, 1435 (2d Cir.
1992). To determine whether vacatur is appropriate, we must “look at
the equities of the individual case.” Staley v. Harris County, 485 F.3d
305, 312 (5th Cir. 2007); see U.S. Bancorp Mortg. Co. v. Bonner Mall
P’ship, 513 U.S. 18, 26 (1994).
Vacatur is appropriate “to prevent a judgment, unreviewable
because of mootness, from spawning any legal consequences.”
Munsingwear, 340 U.S. at 41. It is “generally appropriate where
mootness arises through ‘happenstance,’ or the unilateral action of the
party prevailing below, but not where the appellant moots the case
by settlement or withdrawing the appeal.” Kerkhof v. MCI WorldCom,
Inc., 282 F.3d 44, 53-54 (1st Cir. 2002) (internal citations omitted).
panel to decline to decide a pending motion because an administrative stay
is in place.
14
“These end points mark the extremes; for gray-area cases such as this
one, the result depends on particular circumstances.” Id. at 54.
A
Hassoun claims that “[t]he government’s active role in mooting
this case makes vacatur [of the district court’s decisions]
unwarranted.” Hassoun Opp’n 8. But “not all actions taken by an
appellant that cause mootness necessarily bar vacatur of the district
court’s judgment.” Russman, 260 F.3d at 122. An appellant’s actions
“constitute ‘forfeiture’ of the benefit of vacatur” if the appellant
voluntarily acts with an “inten[t] that the appeal become moot.” Id.
On the other hand, “conduct that is voluntary in the sense of being
non-accidental, but which is entirely unrelated to the lawsuit, should
not preclude our vacating the decision below.” Id.; see N.J. Carpenters
Health Fund v. Novastar Mortg., Inc., 753 F. App’x 16, 21 (2d Cir. 2018)
(summary order) (granting vacatur, in part, because an appellant did
not act “with the purpose of mooting its appeal”); E.I. Dupont de
Nemours & Co. v. Invista B.V., 473 F.3d 44, 48 (2d Cir. 2006) (granting
vacatur where “this appeal has been mooted through no fault or
machination” of the appellant); Leser v. Berridge, 668 F.3d 1202, 1210
(10th Cir. 2011) (granting vacatur, despite the appellant and moving
party having mooted the case, because she lacked “the motive of
vacating the district court order”).
“[T]he touchstone of our analysis” is “[t]he appellant’s fault in
causing mootness.” FDIC v. Regency Sav. Bank, F.S.B., 271 F.3d 75, 77
(2d Cir. 2001). “If the appellant has taken action depriving us of
continuing jurisdiction over the case, under circumstances that
suggest an intention to do so, the appellant is deemed to have
15
forfeited the benefit of the equitable remedy of vacatur of the
judgment of the lower court.” Id.
In this case, however, we conclude that the government’s
appeal was “frustrated by the vagaries of circumstance,” U.S. Bancorp
Mortg. Co., 513 U.S. at 25, and the removal of Hassoun to a third
country was “the natural and apparently long-anticipated result” of
the government’s immigration enforcement efforts, Russman, 260 F.3d
at 123. Under 8 U.S.C. § 1231(a)(1)(A) and (4)(A), the government is
required to remove an alien who has been ordered removed “within
a period of 90 days.” Based on these statutory provisions, the
government argues that “the mootness-causing action,” Hassoun’s
removal, resulted “from the typical progression of events.” Houston
Chron. Pub. Co. v. City of League City, 488 F.3d 613, 620 (5th Cir. 2007);
see Catawba Riverkeeper Found. v. N.C. Dep’t. of Transp., 843 F.3d 583,
591 (4th Cir. 2016) (holding that although a state agency took an action
that mooted the case, “that result was a fait accompli following the
local planning agency’s decision” that the state agency was legally
obligated to implement, and therefore the state agency “did not act
voluntarily to moot this case”); AT&T Commc’ns of S.W. v. City of
Austin, 235 F.3d 241, 244 (5th Cir. 2000) (noting that a statute had
“drained this case of life” by making mootness “a fait accompli” and
that the statute rather than the city’s “responses to it” caused the
mootness); see also Associated Gen. Contractors of Conn. v. City of New
Haven, 41 F.3d 62, 67 (2d Cir. 1994) (“A party should not suffer the
adverse res judicata effects of a district court judgment when it is
denied the benefit of appellate review through no fault of its own.”).
This case resembles others in which the appellate courts have
determined that a party’s actions did not preclude vacatur. For
example, in Kerkhof, the appellant “mooted the case unilaterally …
16
based on a perceived legal obligation” to compensate a former
employee under a stock option award contract. 282 F.3d at 54. Because
the appellant relied on “the express language” of its legal obligation—
the contract—“there [was] no reason to doubt [its] … good faith,” and
the court granted vacatur. Id. Similarly, in Dilley v. Gunn, 64 F.3d 1365,
1372 (9th Cir. 1995), the appellant argued that the case-mooting action
“was wholly unrelated to th[e] lawsuit and would have occurred in
the absence of litigation.” The court acknowledged that “[t]he
administration of a prison does not grind to a halt the moment an
inmate files a lawsuit” and that if Dilley, a prisoner, had been
“transferred pursuant to prison regulations which permit an inmate
to transfer to a lower security institution once he has served a specific
amount of time … without substantial disciplinary problems,” then
the “[m]ootness resulting from such a transfer would be attributable
to ‘happenstance’ within the meaning of Munsingwear, even if the
defendants, as employees of the state’s prison system, did play some
administrative role in the transfer.” Id. The court remanded to the
district court to determine whether vacatur was warranted in light of
that holding. Id.
As the Dilley court explained, “To hold otherwise might create
an incentive for prison officials to hinder routine transfers that would
otherwise be available to and desired by inmates who have obtained
favorable but not yet reviewed judgments in the district court.” Id.
The government makes a similar argument in this case. See Gov. Mot.
2 (“The United States should not have to choose between either
relinquishing its right to seek appellate review of the district court’s
judgment by removing a terrorist alien in accordance with the
mandatory directives of Congress, or instead preserving its right to
appellate review by keeping a terrorist in the United States and
17
potentially having to release him into the community even though
three agency heads determined that he could not be safely released
into the United States and even though it took years to secure a
country that would accept him.”).
Like the parties in Dilley, “[t]he [government] had a
relationship to [Hassoun] other than as litigants,” 64 F.3d at 1372, and
the government’s obligations under 8 U.S.C. § 1231(a)(1)(A) and
(4)(A) did not disappear once Hassoun filed his petition for a writ of
habeas corpus. Hassoun points to no evidence—beyond
speculation—that the government acted for reasons other than its
statutory obligation to effectuate a removal. The government “began
‘engag[ing] with multiple foreign governments concerning
[Hassoun’s] removal’” after he was placed in immigration detention
in October 2017. Hassoun, 2019 WL 78984, at *1; see also Hassoun, 427
F. Supp. 3d at 361-62 (noting that, in addition to other efforts, the
government “sought travel documents for [Hassoun] from Egypt,
Iraq, Somalia, Sweden, and the United Arab Emirates, as well as from
three unidentified countries”). The government continued to engage
in “ongoing efforts” to remove Hassoun throughout the district court
proceedings, Hassoun, 2020 WL 3496302, at *1, and throughout this
appeal.
The government’s ongoing effort to comply with 8 U.S.C.
§ 1231(a)(1)(A) and (4)(A) was “independent of the pending lawsuit”
and does not indicate that the government acted “in order to overturn
an unfavorable precedent.” Nat’l Black Police Ass’n v. District of
Columbia, 108 F.3d 346, 351-52 (D.C. Cir. 1997); see Khodara Envtl., Inc.
ex rel. Eagle Envtl. L.P. v. Beckman, 237 F.3d 186, 195 (3d Cir. 2001); Ford
v. Wilder, 469 F.3d 500, 507 (6th Cir. 2006) (Rogers, J., concurring)
(“[T]here simply is no evidence that the defendants acted with the
18
intent to moot [the] civil action against them.”). This is not a case in
which a party has “obtain[ed] a favorable judgment, take[n]
voluntary action that moots the dispute, and then [seeks to] retain the
benefit of the judgment.” Azar v. Garza, 138 S. Ct. 1790, 1792 (2018).
In Arevalo v. Ashcroft, 386 F.3d 19, 20-21 (1st Cir. 2004), the court
held that “[e]quitable considerations favor[ed] vacatur” of a district
court ruling that “the relevant statute did not authorize ICE to detain
Arevalo after the 90-day period provided by 8 U.S.C. § 1231(a)
expired,” even though ICE had acquiesced in another opinion of the
court that had effectively mooted its appeal. The court noted that
“[n]ot only did ICE vigorously pursue its appeal but, ‘as a repeat
player before the courts, [it] is primarily concerned with the
precedential effect of the decision below,’ and ‘has an institutional
interest in vacating adverse rulings of potential precedential value.’”
Id. At the same time, the “petitioner [was] no longer subject to
reinstatement of the removal order against her.” Id. at 21.
Accordingly, the court concluded that “vacating the judgment harms
neither party and leaves the interpretation of 8 U.S.C. § 1231(a) to be
litigated fully in a more appropriate case.” Id.
Here too, the government vigorously pursued its appeal—in
two courts of appeals, no less—and removed Hassoun pursuant to its
obligations under 8 U.S.C. § 1231(a), as it had been attempting to do
for years. It has the same institutional interests that the First Circuit
identified in Arevalo, and Hassoun similarly will not suffer harm
because he has been removed from the United States and is barred
from re-entry.
Finally, the district court’s decisions could have a preclusive
effect in future litigation between the parties over the lawfulness of
19
Hassoun’s detention. 6 Accordingly, we conclude that vacatur of the
district court’s decisions related to 8 C.F.R. § 241.14(d) is warranted. 7
B
Unlike the district court’s decisions related to 8 C.F.R.
§ 241.14(d), this court’s opinion granting the government’s motion for
a stay pending appeal does not “spawn[] any legal consequences” for
the parties. Munsingwear, 340 U.S. at 41.
“[O]rders concerning stays are ‘not a final adjudication of the
merits of the appeal’ and accordingly have ‘no res judicata’ effect.”
Democratic Exec. Comm. of Fla. v. Nat’l Republican Senatorial Comm., 950
F.3d 790, 795 (11th Cir. 2020); see Hand v. Desantis, 946 F.3d 1272, 1275
n.5 (11th Cir. 2020); FTC v. Food Town Stores, Inc., 547 F.2d 247, 249 (4th
Cir. 1977) (“An order has no res judicata significance unless it is a final
6 See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971); Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (giving
preclusive effect to rulings on issues litigated in a prior habeas proceeding);
Burgos v. Hopkins, 14 F.3d 787, 793 (2d Cir. 1994) (same); cf. Headley v. Bacon,
828 F.2d 1272, 1279 (8th Cir. 1987) (“Litigation involving the government is
generally binding with respect to governmental officials who are sued in
their official capacities in later actions.”).
7 See, e.g., Hassoun v. Searls, No. 19-CV-370, 2020 WL 3496302, at *7-11
(W.D.N.Y. June 29, 2020); Hassoun v. Searls, 427 F. Supp. 3d 357, 366
(W.D.N.Y. 2019). We vacate the district court’s decisions—that is, its
judgment and its opinions—insofar as the court addressed the validity of
8 C.F.R. § 241.14(d). See Camreta v. Greene, 563 U.S. 692, 698 (2011) (vacating
“the part of the [lower court’s] opinion that decided the [mooted] issue”);
Arave v. Hoffman, 552 U.S. 117, 118 (2008) (“[W]e vacate the judgment of the
Court of Appeals to the extent that it addressed that claim.”); Selig v.
Pediatric Specialty Care, Inc., 551 U.S. 1142, 1142 (2007) (“Judgment vacated
with respect to the individual capacity claims … and case remanded … with
instructions to dismiss the appeal as moot with respect to these claims.”).
20
adjudication of the merits of an issue.”). For that reason, “vacatur of
a prior stay-panel opinion once a case becomes moot on appeal is
inappropriate—precisely because that stay-panel opinion cannot
spawn binding legal consequences regarding the merits of the case.”
Democratic Exec. Comm. of Fla., 950 F.3d at 795; see also SEC v. Citigroup
Glob. Mkts. Inc., 673 F.3d 158, 161 (2d Cir. 2012) (“The merits panel is,
of course, free to resolve all issues without preclusive effect from this
ruling.”).
Hassoun suggests that this conclusion “very well may not be
true of the panel’s jurisdictional pronouncement in this case.”
Hassoun Mot. 21. To the extent Hassoun suggests that the
precedential status of a motion panel’s jurisdictional ruling differs
from its rulings on other issues, that is mistaken. “[N]early every …
Circuit,” including this one, has held that a merits panel “may revisit
[a] motions panel’s decision on jurisdiction.” Rezzonico v. H & R Block,
Inc., 182 F.3d 144, 149 (2d Cir. 1999) (citing cases); see also E. Bay
Sanctuary Covenant v. Trump, 950 F.3d 1242, 1264-66 (9th Cir. 2020)
(noting that a motions panel’s jurisdictional ruling is “persuasive, but
not binding”).
Moreover, jurisdictional decisions are an ordinary feature of
every case. “[B]efore deciding any case we are required to assure
ourselves that the case is properly within our subject matter
jurisdiction.” Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001).
Although a jurisdictional decision may “preclude relitigation of the
issues determined in ruling on the jurisdiction question,” 8 such
8 18A CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,
FEDERAL PRACTICE & PROCEDURE § 4436 (3d ed. 2004); see also Roth, 316 F.2d
at 145.
21
preclusion is limited to “the precise issue of jurisdiction,” GAF Corp. v.
United States, 818 F.2d 901, 912 (D.C. Cir. 1987) (emphasis added). As
Hassoun admits, “[t]here is no realistic probability that [he] could in
the future be in a position to allege that he had been injured by the
regulation” because “he is in a foreign country and is forever barred
from entry into the United States.” Hassoun Opp’n 14 (quoting Gov’t
Mot. 13). Accordingly, there is no realistic probability that the court’s
jurisdictional decision will spawn legal consequences for Hassoun
and vacatur of the court’s order is thus inappropriate. See Mahoney v.
Babbitt, 113 F.3d 219, 224 (D.C. Cir. 1997) (“In the unlikely event that
these same parties again face each other in litigation involving a claim
of issue preclusion based on this litigation, then that preliminary stage
of this litigation would be a factor for the future court to weigh in
evaluating that argument.”).
Because there are no legal consequences of the court’s opinion
for the parties, in terms of preclusion or even precedent, vacatur is
inappropriate. “Judicial precedents are presumptively correct and
valuable to the legal community as a whole. They are not merely the
property of private litigants and should stand unless a court
concludes that the public interest would be served by a vacatur.” U.S.
Bancorp Mortg. Co., 513 U.S. at 26. Vacatur pursuant to Munsingwear is
an exception to the regular procedure for establishing and revising
precedents. Id. at 27. Where Munsingwear does not apply, because a
“decision poses little risk of prejudice to the parties,” the “heavy
weight” of precedent and regular procedure “greatly exceeds the
light, if existent, danger of unfair preclusive effect.” Mahoney v.
22
Babbitt, 113 F.3d 219, 224 (D.C. Cir. 1997); see also 10 Ellicott Square Ct.
Corp. v. Mt. Valley Indem. Co., 634 F.3d 112, 115 n.1 (2d Cir. 2011). 9
CONCLUSION
For the foregoing reasons, we DENY Hassoun’s motion to
vacate this court’s opinion granting the government’s motion for a
stay pending appeal, and we GRANT the government’s motion to
VACATE the district court’s decisions related to 8 C.F.R. § 241.14(d),
DISMISS this appeal as moot, and REMAND to the district court
with instructions to dismiss Hassoun’s challenge to his detention
under 8 C.F.R. § 241.14(d) as moot.
Any other pending motions are denied as moot.
9 Hassoun points to Azar v. Garza, 138 S. Ct. 1790 (2018), as contrary
authority. In that case, however, it was “undisputed that Garza and her
lawyers prevailed in the D.C. Circuit, took voluntary, unilateral action to
have Doe undergo an abortion sooner than initially expected, and thus
retained the benefit of that favorable judgment.” Id. at 1793. The Court
agreed with the government that the judgment provided a “benefit” to
Garza in the form of legal consequences. Id.; see Reply Brief for Petr’s at 7,
Azar v. Garza, 138 S. Ct. 1790 (2018) (No. 17-654) (“Absent vacatur, the
decision will be binding within that circuit with respect to future requests
for similar preliminary relief … and it plainly will have significant influence
on permanent relief in this case and others. These are legal consequences
that the government should not, in fairness, be forced to suffer.”). This case,
for the reasons stated in Part II.A., did not become moot through the
voluntary, unilateral action of the prevailing party and, for the reasons
stated in Part II.B., does not have legal consequences for the parties.
23