Fernandez-Roque v. Smith

91 F.R.D. 117
CourtDistrict Court, N.D. Georgia
DecidedAugust 7, 1981
DocketCiv. A. Nos. C81-1084A, C81-938A
StatusPublished
Cited by15 cases

This text of 91 F.R.D. 117 (Fernandez-Roque v. Smith) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fernandez-Roque v. Smith, 91 F.R.D. 117 (N.D. Ga. 1981).

Opinion

ORDER

SHOOB, District Judge.

Presently pending in these consolidated actions are (1) plaintiffs’ motion to amend the complaint by adding 28 U.S.C. § 2241 as an additional jurisdictional basis; (2) plaintiffs’ motion to amend the complaint by adding a new cause of action under the Protocol Relating to the Status of Refugees; (3) the renewed motion for class cer[120]*120tification of all Cuban detainees (the Mir class); and (4) plaintiffs’ motion for the certification of subclasses, particularly those subclasses of Cuban detainees being held solely or primarily because they lack entry papers. The motions regarding class certification will be dealt with as a single motion.

I.

Defendants have announced that they do not object to plaintiffs’ motions to amend their complaint. Accordingly, plaintiffs’ motions to amend their complaint are GRANTED, and defendants shall formally plead in response to the amended complaint within ten days from the date of this order.

The amendment to the complaint under the Protocol states a cause of action for which an additional form of relief — an injunction against return (“refouler”) of Cuban detainees to Cuba (see Article 33 of the 1951 Convention Relating to the Status of Refugees) — may be appropriate. Since the affidavits attached to the motion to amend suggest that the return of any Cuban detainees would work to their irreparable harm, to avoid having this new issue mooted, the Court DIRECTS the defendants to advise this Court in writing within ten days from the date of this order whether they have any intention of trying to return the detainees to Cuba before the resolution of this action. Plaintiffs might wish to address the issue raised by the amendment by motion for summary judgment.

II.

In opposing the motion for class certification respondents have incorporated in their brief the arguments made before this case was transferred from Kansas to Georgia. To the extent that these arguments were rejected by Judge Rogers in his Memorandum and Order of transfer dated May 12, 1981, Judge Rogers’ reasoning is ADOPTED as the opinion of this Court. Before certifying a class and sub-classes, however, this Court wishes to address certain new arguments raised by respondents and certain reservations concerning class certification expressed by Judge Rogers.

A.

Respondents contend that despite this class certification order, the possibility of confusion, duplication and overlap alluded to by Judge Rogers (see Memorandum and Order, May 12, 1981, at pages 10-12) still exists since at least one other case pending in the Northern District of Georgia, Campos-Claro, et al. v. Crossland, et al., C81-266A, contains class action allegations similar to those raised here. Campos-Claro, however, is at an earlier state in proceedings than these consolidated class actions. Moreover, any possible duplication, confusion or overlap will be eliminated by this order. Respondents need only inform any other court in this district, before whom such a class certification motion is pending, of this order to avoid duplication, confusion or overlapping of classes.

B.

Judge Rogers expressed a concern that certification might prove to be inappropriate, since the declaratory, injunctive or other relief (if any) granted the named plaintiff might be “equally effective whether or not the class was certified.” Memorandum and Order of Judge Rogers, May 12, 1981, at page 9. However, the government’s position is clear: it regards each class member as an individual ease, and it will release only those Cuban detainees as it is ordered. In addition, it is clear from another Cuban detainee case that declaratory and injunctive relief as to named detainees will not make class certification inappropriate. In Moises Garcia Mir v. Wilkinson, Case No. 80-3139 (D.Kan., Sept. 2, 1980) (Rogers, J.), the district court ordered that “respondents provide each petitioner with a fair exclusion hearing within sixty (60) days from the date of this Order ...” While respondents complied as to the seven named petitioners, eleven months have now passed, and respondents have still not afforded more than 100 potential class members an initial exclusionary hearing. Care[121]*121ful consideration of the facts of this situation and the government’s response to it supports the propriety of class certification.

C.

The government argues that each Cuban detainee is in the Atlanta Federal Penitentiary because of the particular facts of his case, and that class certification under Fed.R.Civ.P. 23(b)(2) is impossible, since the government has refused to reinstate parole on grounds particular to each detainee.

It is true that there are important questions of fact peculiar to each detainee. However, that does not preclude the availability of all class relief. First, declaratory relief as to the rights of all class members or certain subclass members may be appropriate. Second, plaintiffs may be able to establish that as to discrete, readily identifiable subclasses, there has been an abuse of discretion in the District Director’s refusal to reinstate parole as to the entire membership of the subclass. Third, as to other subclasses, it may be that the injunctive relief appropriate, if any, would be a hearing of some sort. The Court concedes that it is not prepared to make a determination whether each Cuban detainee is being legally detained, particularly if the government plans to interpose objections to the release of each detainee on the grounds that he is a threat to national security, is likely to abscond, or that petitioner might be a danger to U. S. persons or property if released. However, the Court may, if it determines relief is required, issue appropriate orders and authorize proceedings before a magistrate or a special master to speed a resolution of this case.

D.

Finally, counsel for the government urges this Court to ‘abstain’ from further proceedings because the government itself is reviewing the situation. On July 22, 1981, the day before the in-chambers conference, the government announced a new program to apply to the 1,800 Cuban detainees incarcerated in Atlanta. The government asks this Court to give it a chance to implement this worthwhile plan, and not to divert INS resources from that plan by accelerating proceedings in this case. The Court will not interfere with the government’s belated ‘Status Review Plan and Procedures,’ but it will not delay proceedings in this action, for the reasons that follow.

First, the procedure established will be quite time-consuming. There is one three-person review panel for all 1,800 Cuban detainees. Even if the review panel can review as many as five cases per day, an initial review by the panel of each detainee would take almost a year and a half. In addition, the review process itself contemplates at least a two-month time span for each case. At least thirty days prior to the panel review, a progress report must be completed by the institutional staff. The panel, prior to review, will then go over the detainee’s file. A personal interview with each detainee will be held, unless the panel determines from just a review of the file that release is appropriate.

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Related

Campos v. Immigration & Naturalization Service
188 F.R.D. 656 (S.D. Florida, 1999)
Leyva v. Buley
125 F.R.D. 512 (E.D. Washington, 1989)
Rodriguez Ex Rel. Rodriguez v. Berrybrook Farms, Inc.
672 F. Supp. 1009 (W.D. Michigan, 1987)
Moises Garcia-Mir v. William French Smith
766 F.2d 1478 (Eleventh Circuit, 1985)
Gorton v. Johnson
100 F.R.D. 801 (E.D. Michigan, 1984)
Fernandez-Roque v. Smith
567 F. Supp. 1115 (N.D. Georgia, 1983)
United States v. Donald G. Richardson
687 F.2d 952 (Seventh Circuit, 1982)
Bertrand v. Sava
535 F. Supp. 1020 (S.D. New York, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
91 F.R.D. 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fernandez-roque-v-smith-gand-1981.