Sanchez v. Edgar

710 F.2d 1292

Opinions

HARLINGTON WOOD, Jr., Circuit Judge.

In this appeal, we are called upon to decide under what circumstances an action complaining of unconstitutional treatment by federal and state agencies is moot when the specific action complained of has ceased but the plaintiff has alleged that the action was taken pursuant to a continuing official written policy. Under the circumstances present here, we find that the plaintiff’s action was not moot, and consequently we reverse the district court’s dismissal.

I.

Plaintiff Sanchez filed this class action against the Illinois Secretary of State and federal Immigration and Naturalization Service officials on August 26,1982, seeking declaratory, injunctive and monetary relief in connection with a violation of his constitutional rights under 42 U.S.C. §§ 1981, 1985, 1986. His complaint alleged that, after his arrest by INS agents on August 19, 1982, his valid Illinois driver’s license was not returned to him by the INS but was instead sent to the Illinois Secretary of State pursuant to an official written state policy requesting that all suspected illegal aliens’ licenses be forwarded to that office, a policy which plaintiff claimed violated his right to due process and equal protection. Plaintiff’s complaint was supported by an affidavit of one of his attorneys in which the latter stated that, upon being informed by plaintiff of the absence of his license after INS processing, he placed a phone call to the INS and spoke with an Agent Wof-ford who informed him that plaintiff’s license had been sent to the office of the Illinois Secretary of State pursuant to a “memo” from that office requesting the confiscation and forwarding of the licenses of suspected illegal aliens; it was the policy of the INS, Wofford reportedly stated, to follow the dictates of this “memo.”

At a hearing on plaintiff’s emergency motion for a temporary restraining order, the federal defendants returned the plaintiff’s license to him in open court and moved to dismiss the action as moot. In their motion to dismiss, the federal defendants represented that the plaintiff’s license was not returned to him only due to an “oversight” rather than an “institutional policy” and that the license was in fact never sent to the office of the Illinois Secretary of State. Accompanying and noted in the motion was an affidavit of an INS Officer, Steve Henderson, who stated that he had processed plaintiff and that plaintiff’s license had been misplaced under a stack of papers on his desk. Henderson further stated that plaintiff’s license was never sent to the Illinois Secretary of State, and that it was not INS policy to do so. The state defendant was also granted leave to file a motion to dismiss the action as moot; the state incorporated in its motion the federal defendants’ motion.

Prior to a hearing on defendants’ motions to dismiss, plaintiff filed his First Amended Complaint adding an additional party plaintiff who alleged that his driver’s license was confiscated by the defendants pursuant to the same policy and under the same circumstances as alleged in the initial complaint. The district court denied plaintiff leave to amend the complaint and dismissed the action as moot, explaining that

Plaintiff Sanchez’s claim is now moot due to the return of his driver’s license by the INS.... It is clear that the INS has no policy of summarily seizing driver’s licenses of aliens under investigation. It is more clear that the Secretary of State of Illinois is not involved in this action at all.

Plaintiff appealed this dismissal, arguing, inter alia, that, even though his license had been returned to him, the case still presented a live controversy insofar as he alleged the continued existence of a joint INS-Illinois Secretary of State policy mandating seizure of the driver’s licenses of suspected illegal aliens to which he might be still subject and insofar as he claimed damages from the deprivation of his driver’s license for ten days. We agree.

II.

The test for mootness is a stringent one, and it is well settled that mere voluntary cessation of allegedly illegal conduct by the defendant does not moot a case. United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). If a governmental practice is capable of repetition, yet evades review due to the brevity of its duration or its apparent suspension, a live controversy still exists. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Nader v. Volpe, 475 F.2d 916, 917 (D.C.Cir.1973). The crux of plaintiffs allegation here is not only that his driver’s license was confiscated but that it was confiscated and sent to Illinois officials pursuant to a written policy memorandum of the Illinois Secretary of State, a policy from which he sought prospective relief.¹ By way of contradiction, defendants merely assert that plaintiff’s license was retained only by accident and that it is not INS policy to forward suspected illegal aliens’ licenses to the Illinois Secretary of State. But this bald, competing representation does not, as the district court apparently concluded, terminate a live controversy. To the contrary, it sustains one; the plaintiff is entitled to prove that there is an ongoing policy of Illinois and INS to confiscate the licenses of a category of individuals to which he still belongs.

We note additionally that, with admirable candor, the Illinois Secretary of State has, after denying at oral argument on appeal the existence of a policy memorandum directing license confiscation, subsequently notified this court by letter that subsequent investigation has disclosed that such a state policy in fact does exist, although, he claims, this policy is not followed by the INS. This information further supports the conclusion that a live controversy exists,² for this court has expressly held that the continued existence of an agency’s written authority to carry out a challenged policy, even if the agency has ceased to exercise it, saves the underlying challenge from mootness unless there is no reasonable likelihood that application of the policy will be resumed. Gallagher & Ascher Co. v. Simon, 687 F.2d 1067, 1071-72 (7th Cir.1982); Rabinowitz v. Board of Junior College District No. 508, 507 F.2d 1255, 1256 (7th Cir.1974). We cannot at this stage say that, despite defendants’ representation that the newly acknowledged memorandum policy is not followed, there is no reasonable possibility that it will be applied to the plaintiff and his class at some future date. Plaintiff is entitled to a more extensive judicial forum to prove both the existence and continuing application of the challenged policy.

Even if we could ignore the evidence of the persistence of the allegedly unlawful policy of license seizure, however, the district court still would have erred in label-ling plaintiff’s action as moot, in view of plaintiff’s outstanding claim for damages. Plaintiff claimed compensatory and punitive damages both from the violation of his constitutional rights and from the effective loss of the use of his automobile over the period during which the license was held by the INS. It is well settled that a viable claim for monetary relief, with the possible exception of a claim for only nominal or insubstantial damages, preserves the salien-cy of an action. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 8-9, 98 S.Ct. 1554, 1559-1560, 56 L.Ed.2d 30 (1977); Loss v. Blankenship, 673 F.2d 942, 951 n. 11 (7th Cir.1982); 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3533 at 272-73 (1976). Neither the district court nor the defendants have characterized plaintiff’s claimed damages as nominal, nor can we infer on this record that the damages sought will be more diminutive than a single household’s claim for a month’s utility overcharges which the Supreme Court found to prevent mootness in Craft. 436 U.S. at 9 n. 8, 98 S.Ct. at 1560 n. 8.

III.

Finally, defendants argue that, even if plaintiff’s action was not moot, it failed to state a claim upon which relief could be granted. Specifically, they argue that it is uncontroverted that plaintiff’s license was never sent to the office of the Illinois Secretary of State, and hence the essential “wrong” is not even alleged to have occurred. But defendants err, for it is alleged in paragraph twenty-two of plaintiff’s initial complaint that plaintiff’s license was sent to the state defendant’s office. Whether plaintiff’s allegation can be fully substantiated by the evidence at trial is, of course, a different question; however, it is surely not “beyond doubt that the plaintiff can prove no set of facts in support of his claim.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).³

CONCLUSION

For the foregoing reasons, the district court’s dismissal of this action is reversed and the case is remanded for further consideration, including the plaintiff’s motion for leave to amend his complaint and his motion for class certification. By this procedural order this court intends to suggest no view of the merits. Circuit Rule 18 shall apply.

Reversed And Remanded.

Footnotes

1

. Defendants argue, and Judge Nichols has properly noted, that this allegation is based on INS agent Wofford’s purported statement which is hearsay with respect to the INS and the state defendant and thus may not be admissible against them at trial. However, since the ruling here concerns whether the allegation establishes jurisdiction, an inquiry into the hearsay basis of the allegation would be premature at this time. Wright & Miller, 5 Federal Practice and Procedure § 1364 at 670 (1969).

2

. We note that a court may consider extrinsic matter bearing on a motion to dismiss for lack of jurisdiction without thereby converting that motion into one for summary judgment. State of Alabama ex rel. Baxley v. Woody, 473 F.2d 10, 12-13 (5th Cir.1973). Thus, while Judge Nichols is correct that part III of this order (analyzing the government’s assertion that plaintiff failed to state a claim) could have been alternatively analyzed as a motion for summary judgment in view of the competing affidavits, such an alternative analysis would not be proper with respect to the mootness question'.

3

. Judge Nichols points out that the question of - failure to state a claim can be analyzed under the summary judgment standard, since competing affidavits were introduced, and the district court’s order can be reversed through application of that standard as well. We agree.