United States District Court, D. Massachusetts
MARK ANTHONY REID, on behalf of himself and others similarly situated, Plaintiff,
CHRISTOPHER DONELAN, Sheriff of Franklin County, et al., Defendants
For Mark Anthony Reid, Petitioner: A. Nicole Hallett, LEAD ATTORNEY, Yale Law School, Jerome N. Frank Legal Services Organization, New Haven, CT; Lauren Carasik, LEAD ATTORNEY, Western New England College School of Law, Springfield, MA; Mark C. Fleming, LEAD ATTORNEY, Wilmer Hale LLP, Boston, MA; Matthew Segal, LEAD ATTORNEY, American Civil Liberties Union, Boston, MA; Michael J. Wishnie, LEAD ATTORNEY, PRO HAC VICE, Yale Law School, New Haven, CT; Muneer I. Ahmad, LEAD ATTORNEY, PRO HAC VICE, Jerome N. Frank Legal Services Organization, Yale Law School, New Haven, CT; Ahilan Arulanantham, PRO HAC VICE, American Civil Liberties Union of Southern California, Los Angeles, CA; Anant K. Saraswat, Rebecca Fabian Izzo, Wilmer Cutler Pickering Hale and Dorr LLP (Bos), Boston, MA; Lunar Mai, Ruth Swift, PRO HAC VICE, Yale Law School, New Haven, CT; Michael King Thomas Tan, PRO HAC VICE, American Civil Liberties Union Foundation, Immigrants Rights Project, San Francisco, CA.
For Christopher Donelan, Sheriff, Franklin County, Mass., David A Lanoie, Superintendent, Franklin County Jail & House of Correction, Thomas Hodgson, Sheriff, Bristol County, Mass., Joseph McDonald, Sheriff, Plymouth County, Mass., Steven Tompkins, Sheriff, Suffolk County, Mass., Janet Napolitano, Secretary of the Department of Homeland Security, Dorothy Herrera-Niles, Director, Immigration and Customs Enforcement Boston Field Office, John Morton, Director of Immigration and Customs Enforcement, Eric Holder, Attorney General of the United States, Juan Osuna, Director of the Executive Office for Immigration Review, Executive Office for Immigration Review, Respondents: Elianis N. Perez, LEAD ATTORNEY, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC; Karen L. Goodwin, LEAD ATTORNEY, United States Attorney's Office, Springfield, MA; Regan Hildebrand, LEAD ATTORNEY, United States Department of Justice, Washington, DC; Colin Abbott Kisor, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC; J. Max Weintraub, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC; Yamileth G. Davila, U.S. Department of of Justice Civil Division, Office of Immigration Litigation, Washington, DC.
MEMORANDUM AND ORDER REGARDING PLAINTIFFS' MOTION FOR ENFORCEMENT OR MODIFICATION OF CLASS CERTIFICATION ORDER AND FOR LIMITED DISCOVERY (Dkt. No. 144)
MICHAEL A. PONSOR, United State District Judge.
Plaintiff, an alien and lawful permanent resident who was detained without the right to seek release pending deportation, brought a class action on behalf of himself and all similarly situated persons held in custody for longer than six months within the Commonwealth of Massachusetts by Immigration and Customs Enforcement (" ICE" ) pursuant to 8 U.S.C. § 1226(c). The court has previously granted individual habeas relief, certified the class, and granted summary judgment allowing class-wide relief and ordering Defendants to give notice to class members of their entitlement to bond hearings after six months. See Reid v. Donelan, 991 F.Supp.2d 275 (D. Mass. 2014)(" Reid I" )(granting habeas relief); Reid v. Donelan, 297 F.R.D. 185 (D. Mass. 2014)(" Reid II" )(certifying class); Reid v. Donelan,
__ F.Supp.2d __, 22 F.Supp.3d 84, 2014 WL 2199780 (D. Mass. May 27, 2014)(" Reid III" )(granting summary judgment).
Some disagreements have arisen regarding the interpretation of the court's remedial order. Plaintiff has moved to enforce the order to the extent that it requires Defendants to provide individualized bond hearings and notice to all individuals held under 8 U.S.C. § 1226(c). Insofar as some ambiguity exists regarding who exactly these individuals are, Plaintiff has moved, in the alternative, to modify the language of the class certification order so that it provides relief to the class as Plaintiff construes it. Plaintiff has also moved for limited discovery to identify class members who may be entitled to relief but who have not yet been disclosed by Defendants. Lastly, Plaintiff has moved for an order requiring Defendants to notify class counsel of the date and time when a class member's bond hearing is scheduled. For the reasons set forth below, the court will substantially allow Plaintiff's motion, denying for now only some aspects of the requested relief.
The facts of this litigation have been set forth in detail in the court's three previous memoranda, cited above. Only the facts germane to this motion merit repetition.
Plaintiff represents a class of individuals who were detained in Massachusetts pursuant to 8 U.S.C. § 1226(c) by ICE for over six months without an opportunity for a bond hearing. On January 9, 2014, the court, relying on its prior decision in Bourguignon v. MacDonald, 667 F.Supp.2d 175 (D. Mass. 2009), granted Plaintiff's individual petition for habeas corpus. Reid I, 991 F.Supp.2d at 282. The court concluded that two Supreme Court decisions, Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), and Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), implied that § 1226(c) contained a reasonableness limitation on the length of time an individual could be detained without a bond hearing. Citing the Ninth Circuit's decision in Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013), the court set that reasonableness threshold at the six-month mark. Reid I, 991 F.Supp.2d at 279-81.
One month later, on February 10, 2014, the court certified the case as a class action. Reid II, 297 F.R.D. 185. The court defined the class as " all individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond hearing." Id. at 194. Defendants expressed concern that two of the requirements for class certification, typicality and commonality, were lacking because the proposed class included individuals who had received a final order of removal and were, according to Defendants, therefore not detained under § 1226(c). To assuage that concern, the court explicitly stated, " The class requested, and being certified, only includes individuals held under § 1226(c) beyond the six-month mark. Any individual held under a different statute is not, for the time being at least, part of this class." Id. at 191 (emphasis in original). The court further explained, " Plaintiff does point out that an individual may be held under one statute but, due to the nature of his or her immigration litigation, later held under § 1226(c). At the point such individuals have been held under § 1226(c) for six months, they will become members of the class." Id. at 191 n.3.
The parties then filed their dispositive motions. On May 27, 2014, the court, adhering to its prior decisions, granted summary judgment for Plaintiff. Reid III, 2014 WL 2199780, at *6-7. The court entered an injunction requiring Defendants to provide all class members held under § 1226(c) for more than six months the opportunity for a bond hearing pursuant to § 1226(a), which requires an initial bond determination. If a class member is not satisfied with that determination, he or she may seek provisional release under a bond through a hearing before an Immigration Judge.
A dispute quickly arose over which detainees were class members, specifically which were subject to detention under § 1226(c). Defendants contended that the class only included what they termed " pre-removal" aliens. Once an administrative order of removal was issued, even if it was appealed, Defendants contended, the aliens were no longer in a " pre-removal" status under § 1226(c) since they were supposedly held pursuant to § 1231(a)(1) in a 90-day " removal period." As such, they were not class members. Plaintiff disputed Defendants' construction of § 1231 and their distorted interpretation of the class boundary. By incorrectly grafting this " pre-removal" qualification onto the class definition, Plaintiff argued, Defendants improperly reduced the size of the class and, in the process, failed to comply with the court's order.
As this disagreement was blossoming, Plaintiff's counsel was also attempting to obtain information about the date and time of the calendared bond hearings for individuals who, Defendants conceded, actually were class members. The immigration court in Hartford refused to provide that information. Since presence of counsel is often crucial at bond hearings, Plaintiff's counsel asked Defendants to provide notice of scheduled bond hearings, which Defendants also declined to do.
In this context, on July 21, 2014, Plaintiff filed this motion for enforcement or modification of the class certification order and for limited discovery. (Dkt. No. 144.) Specifically, Plaintiff requested that the court make clear that the cohort of aliens supposedly within the 90-day " removal period," whom Defendants were attempting to excise from the class, were being detained pursuant to § 1226(c) and not § 1231(a)(1), and were in fact class members subject to the court's remedial order.
Plaintiff further requested that the court order Defendants to alter their notice of class certification to reflect the proper scope of the class. In addition, Plaintiff sought limited discovery to ensure that all class members were obtaining timely bond hearings. Finally, Plaintiff requested that the court order Defendants to provide notice to class counsel of the dates and times of bond hearings as they were calendared, so that counsel could be present to advocate on behalf of individuals appearing before an Immigration Judge.
On August 11, 2014, Defendants filed their opposition to Plaintiff's motion. (Dkt. No. 158.) Defendants contended that the class certified by the court did not include individuals who had been detained for more than six months but had received a final administrative removal order and were therefore not " pre-removal" but rather within the " removal period." Defendants characterized Plaintiff's motion as an impermissible attempt to expand the boundary of the class.
Plaintiff's reply brief cited a decision from this district, Brown v. Lanoie,
No. 1:13-cv-13211, (D. Mass. Aug. 4, 2014)(unpublished), in which Judge Indira Talwani ruled that Petitioner Brown was a member of the Reid class and entitled to a bond hearing, despite the fact that he had received a final administrative removal order and was appealing that order to the Second Circuit. For the reasons set forth below, this court agrees with Judge Talwani that Plaintiff's construction of the class boundary, and not Defendants', is correct. As a result, the court will substantially allow Plaintiff's Motion for Enforcement (Dkt. No. 144). No modification of the order is needed, since by its terms it clearly covers the entire class cohort as conceived by Plaintiff. On one or two details the court will decline, for the time being, to provide some of the relief requested by Plaintiff.
A. Procedural Framework
A motion for noncompliance with a court order focuses on the four corners of the order, and the court's inquiry is limited to the order's language. U.S. v. Saccoccia, 433 F.3d 19, 28 (1st Cir. 2005). A party is only considered noncompliant if the order is clear and unambiguous. Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991).
In Reid III, the court ordered, " Defendants shall immediately cease and desist subjecting all current and future class members -- that is, those detainees held under 8. U.S.C. § 1226(c) beyond six months -- to mandatory detention under that statute." 2014 WL 2199780, at *8. Defendants take the position that certain individuals subject to administrative orders of removal are no longer held under § 1226(c) and thus are not members of the class. Consistent with this interpretation, Defendants have not given notice of class membership or the right to individualized bond hearings to those persons. As the discussion below will ...