Kelvin Hernandez Roman v. Chad Wolf ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELVIN HERNANDEZ ROMAN; et al., No. 20-55662
Plaintiffs-Petitioners- D.C. No.
Appellees, 5:20-cv-00768-TJH-PVC
v.
MEMORANDUM*
CHAD F. WOLF, Acting Secretary, U.S.
Department of Homeland Security; et al.,
Defendants-Respondents-
Appellants.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Argued and Submitted September 15, 2020
San Francisco, California
Before: WATFORD, FRIEDLAND, and MILLER, Circuit Judges.
The Government1 has filed this interlocutory appeal to challenge two orders
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
Defendants-Appellants are Chad F. Wolf, Acting Secretary of Homeland
Security; Tony H. Pham, Senior Official Performing the Duties of the Director,
U.S. Immigration and Customs Enforcement (“ICE”); David Marin, Director of the
that established a procedure by which the district court would entertain individual
applications for bail pending resolution of class members’ habeas petitions. We
dismiss the appeal for lack of jurisdiction.
Appellate review is generally reserved for final decisions of the district
courts. See generally 28 U.S.C. § 1291. One important exception permits
appellate review of an interlocutory order “granting, continuing, modifying,
refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”
Id. § 1292(a)(1). An order need not be termed an injunction by the district court to
fall within § 1292’s ambit; an order that “has the ‘practical effect’ of granting or
denying an injunction . . . should be treated as such for purposes of appellate
jurisdiction.” Abbott v. Perez, 138 S. Ct. 2305, 2319 (2018) (citation omitted).
These orders laying out bail application procedures did not have the practical
effect of granting an injunction. Indeed, the orders did not affect the substantive
rights of a single class member.2 Rather, the two orders functioned largely as case
Los Angeles Field Office for ICE’s Enforcement and Removal Operations; and
James Janecka, Warden of Adelanto. We refer to them collectively as “the
Government.” Pham has been automatically substituted for Matthew T. Albence,
former Deputy Director and Senior Official Performing the Duties of the Director
of ICE. Fed. R. App. P. 43(c)(2).
2
The Government could have waited to seek appellate review of an order
granting a bail application. Instead, the Government appealed from these
procedural orders, over which we lack jurisdiction. We express no view on the
appealability of an order granting a bail application pending resolution of a habeas
claim, because that question is not before us.
2
management orders, creating a procedure for the court to undertake a streamlined
yet individualized review of bail applications. As case management orders, these
two orders are not subject to interlocutory review. See In re Korean Air Lines Co.,
642 F.3d 685, 701 (9th Cir. 2011) (“A district court’s case management orders are
generally not appealable on an interlocutory basis.”).
Nor did the procedural orders modify the district court’s earlier preliminary
injunction, which was stayed in part months before these procedural orders issued.
As we explain in our concurrently filed opinion affirming in part and vacating in
part that injunction, the district court’s preliminary injunction was justified by
Plaintiffs’ equitable claim for declaratory and injunctive relief, irrespective of
Plaintiffs’ joint habeas petition. By contrast, the procedural orders now on appeal
stemmed from the joint habeas petition, which is an entirely separate aspect of
Plaintiffs’ lawsuit. The preliminary injunction and the bail orders also envisioned
very different relief. In a portion of the preliminary injunction that our court
stayed, the district court had mandated a population reduction of at least 250
detainees within a matter of days. Conversely, the bail orders merely facilitated a
process for the district court to review bail applications, which is an inherently
individualized inquiry, different in kind from the generalized population reductions
ordered in the preliminary injunction. Because the procedural orders did not have
the practical effect of modifying the district court’s earlier injunction, the
3
Government’s alternative theory for how we have jurisdiction under § 1292(a)(1)
likewise fails.
Lastly, the Government also contends we could construe this appeal as a
petition for a writ of mandamus, in which case the All Writs Act, 28 U.S.C.
§ 1651(a), would provide jurisdiction. A writ of mandamus is a “drastic and
extraordinary remedy reserved for really extraordinary causes,” such as
circumstances “amounting to a judicial usurpation of power” or a “clear abuse of
discretion.” Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380
(2004) (quotation marks omitted). The exceptional circumstances required to
justify our exercise of mandamus jurisdiction are not present here.
DISMISSED.
4