Kelvin Hernandez Roman v. Chad Wolf

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.