FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHOLIC SOCIAL SERVICES, INC.;
AMERICAN FEDERATION OF LABOR -
CONGRESS OF INDUSTRIAL
ORGANIZATIONS; UNITED FARM
WORKERS OF AMERICA, AFL-CIO;
MIGUEL GALVEZ MORAN;
IMMIGRATION PROGRAM; ESAUL
DELGADILLO-URIBE; GUSTAVO
RODRIGUEZ; ANIL K. URMIL; ISMAEL
No. 98-16269
DE LA CRUZ; ELMA BARBOSA;
D.C. No.
QUTB-E-ALAM KAHN; MOHAMMED
CV-98-00629-LKK/
HAQ; JESUS REYNA REYNA,
JFM
Plaintiffs-Appellees,
v.
IMMIGRATION AND NATURALIZATION
SERVICE; JANET RENO, Attorney
General; DORIS MEISSNER,
Commissioner of Immigration and
Naturalization Service,
Defendants-Appellants.
CATHOLIC SOCIAL SERVICES, INC.;
UNITED FARM WORKERS OF
AMERICA, AFL-CIO; ESAUL
DELGADILLO-URIBE; GUSTAVO
RODRIGUEZ; ANIL K. URMIL; ISMAEL
DE LA CRUZ; MIGUEL GALVEZ
No. 98-16423
MORAN; ELMA BARBOSA; JESUS
REYNA REYNA; QUTBE-E-ALAM
D.C. No.
KHAN; MOHAMMED HAQ,
CV-98-00629-
Plaintiffs-Appellants,
LKK/JFM
v.
OPINION
JANET RENO, Attorney General;
DORIS MEISSNER, Commissioner of
Immigration and Naturalization
Service; IMMIGRATION AND
NATURALIZATION SERVICE,
Defendants-Appellees.
Appeals from the United States District Court
for the Eastern District of California
Lawrence K. Karlton,
Chief District Judge Emeritus, Presiding
Argued March 2, 1999
Phoenix, Arizona
Submitted June 23, 1999
Filed June 30, 1999
Before: Mary M. Schroeder, Arthur L. Alarcon and
Diarmuid F. O'Scannlain, Circuit Judges
Opinion by Judge O'Scannlain;
Dissent by Judge Schroeder
M. Jocelyn Lopez Wright (argued), Keisha Dawn Bell, Department of Justice,
Washington, D.C., for the defendants-appellants-cross-appellees.
Peter A. Schey (argued), Carlos Holguin (argued), Center for Human Rights
and Constitutional Law, Los Angeles, Califor-nia, for the
plaintiffs-appellees-cross-appellants.
O'SCANNLAIN, Circuit Judge:
We must deal, once again, with the status of claims brought by some 45,000
illegal aliens, seeking legalization under 1986 immigration legislation, who
failed to tender timely complete applications and fees.
I
The tortured history of this litigation has been recounted in detail in this
court's prior opinions, see Catholic Social Ser-vices, Inc. v. Reno, 134
F.3d 921, 922-24 (9th Cir. 1998);
Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914, 916-18 (9th Cir.
1992), and in the Supreme Court's opinion in Reno v. Catholic Social
Services, Inc., 509 U.S. 43, 46-53 (1993). Suffice it to say that the
Immigration and Naturaliza-tion Service ("INS") adopted a policy in 1986,
revised in 1987, as part of its administration of the Immigration Reform and
Control Act of 1986, 8 U.S.C. S 1255a ("IRCA"), which is at the root of this
dispute. IRCA established a legalization program under which certain aliens
unlawfully present in the United States could apply for status as temporary
residents, and then seek permission to reside permanently in the United
States. See 8 U.S.C. SS 1255a(a), (b). Among other require-ments, IRCA
provided that, to be eligible, applicants had to prove continuous physical
presence in the United States since November 6, 1986. See id. S
1255a(a)(3)(A). The INS enforced the continuous physical presence
requirement of S 1255a(a)(3)(A) by denying adjustment of status to aliens
who failed to obtain INS approval before leaving the United States for even
the briefest of absences (the "advance parole policy").
In November 1986, a number of concerned organizations
and individuals (collectively "Catholic Social Services" or
"CSS") filed a complaint challenging the advance parole pol-
7148
icy. CSS had asserted that the advance parole policy violated the statutory
proviso that an alien would not fail to maintain continuous physical
presence by virtue of "brief, casual, and innocent absences from the United
States." Id. S 1255a(3)(B). The district court certified a broad class of
all persons who had not complied with the INS advance parole policy but were
otherwise eligible for adjustment of status under 8 U.S.C. S 1250a, and
subsequently ruled that the advance parole policy was contrary to the intent
of the statute and hence unenforceable. See Catholic Social Services, Inc.
v. Meese, 685 F. Supp. 1149, 1159-60 (E.D. Cal. 1988) ("CSS I"). We
affirmed the district court in a consolidated appeal. See Catholic Social
Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir. 1992) ("CSS II").
The Supreme Court, in turn, granted certiorari and vacated our decision,
holding that only those persons who had taken affirmative steps toward
legalization and had been stymied by the INS' advance parole policy had ripe
claims. See Reno v. Catholic Social Services, Inc., 509 U.S. 43, 58-59
(1993)
("CSS III"). The Court described at some length the INS'
practice, known as "front-desking," pursuant to which legal-
ization assistants were instructed to review applications in the
applicants' presence and to reject the applications of any
aliens who were statutorily ineligible for legalization. Under
this front-desking policy, aliens who disclosed unapproved
trips outside the United States in violation of the advance
parole policy had their applications rejected before the appli-
cations could be filed. See id. at 61-62. The Court held that
"the front-desking of a particular class member is not only
sufficient to make his legal claims ripe, but necessary to do
so." Id. at 66 (emphasis added). The Court concluded, how-
ever, that it could not resolve the jurisdictional question
regarding ripeness because the record did not contain evi-
dence that particular class members were actually subjected to
front-desking. See id. at 64-65. Thus, the Supreme Court
remanded to this court, with directions to remand to the dis-
trict court for proceedings to determine which class members
7149
were front-desked. See id. at 66-67. We, in turn, remanded to the district
court for further proceedings consistent with the Supreme Court's opinion.
See Catholic Social Services, Inc. (Centro De Guadalupe Immigration Center)
v. Reno, 996 F.2d 221, 222 (9th Cir. 1993) ("CSS IV").
On remand to the district court, CSS filed a Seventh Amended Complaint
adding parties who had visited INS offices seeking to apply for
legalization, but had been rebuffed by the INS without being provided
application mate-rials. The district court subsequently certified a modified
and narrower class, and continued its prior orders providing interim relief
for the class. The government appealed. During the pendency of the appeal
from remand in CSS IV , Congress again amended the immigration laws by
enacting the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 ("IIRIRA"). Section 377 of IIRIRA provides:
(a) LIMITATION ON COURT JURISDICTION.-Section 245A(f)(4) (8 U.S.C. S
1255a(f)(4)) is amended by adding at the end the following new subparagraph:
"© JURISDICTION OF COURTS.
Notwithstanding any other provision of law, no court shall have
jurisdiction of any cause of action or claim by or on behalf of any person
asserting an interest under this section unless such person in fact filed an
application under this section within the period specified by subsection
(a)(1) of this section, or attempted to file a complete application and
appli-cation fee with an authorized legalization officer of the Service but
had the application and fee refused by that Officer."
(b) EFFECTIVE DATE.-The amendment made
by subsection (a) shall be effective as if included in
7150
the enactment of the Immigration Reform and Con-trol Act of 1986.
In disposing of the appeal of CSS IV, we rejected CSS' con-stitutional
challenges to S 377, and held that, "[b]ecause none of the class members or
named plaintiffs have alleged that they actually tendered an application and
fee or attempted to do so but were rebuffed by a legalization assistant,
they do not have standing pursuant to the limited grant of federal court
jurisdiction set forth in S 377." Catholic Social Services v. Reno, 134
F.3d 921, 927 (9th Cir. 1998) (" CSS V"). Accord-ingly, we vacated the
district court's interlocutory orders and remanded with instructions to
dismiss for lack of jurisdiction.
The case before us now is a new class action, filed by CSS following
dismissal on remand, alleging similar claims chal-lenging the INS' advance
parole and front-desking policies and again challenging the
constitutionality of S 377. The plaintiffs in this incarnation of Catholic
Social Services attempted to meet the jurisdictional requirements ofS 377 by
alleging that various claimants were front-desked after tender-ing a
complete application and fee or were discouraged from doing so by the
front-desking policy. The district court con-cluded that it lacked
jurisdiction under S 377 over the claims of those who failed to tender a
complete application and fee, but nonetheless entered a class-wide
preliminary injunction against the deportation or revocation of employment
authori-zation of any members of the former class until a plan was approved
to identify which of the former class members were front-desked and, thus,
part of the new class. See Catholic Social Services v. Reno, No. 98-629
(E.D. Cal. filed July 2, 1998) ("CSS VI").
The government appeals the district court's entry of the class-wide
injunction. CSS cross-appeals the district court's determination that, under
S 377, it lacked jurisdiction over the claims of aliens who failed to tender
a complete application form and fee.
7151
II
The question in the cross appeal of whether the district court had
jurisdiction over any claims brought by aliens desir-ing legalization who
did not tender a complete application and the requisite fee is quickly
answered by the express statutory language and by our opinion in CSS V.
Section 377 of IIRIRA amended IRCA to provide, in rele-vant part, that:
no court shall have jurisdiction of any . . . claim by or on behalf
of any person . . . unless such person in fact filed an application . . .
within the period speci-fied . . . or attempted to file a complete
application and application fee with an authorized legalization officer of
the Service but had the application and fee refused by that officer.
8 U.S.C. S 1255a(f)(4)©.
[1] The plain language of S 377 would appear to preclude the exercise of
jurisdiction over front-desked aliens who failed to tender a complete
application and fee with an autho-rized legalization officer of the Service,
and in CSS V, we so held:
It is [ ] clear from the language of S 377 and the con-
ference report that Congress intended to eliminate
federal court jurisdiction over claims by aliens who
were not actually subjected to front-desking but
failed to file an application because of the front-
desking policy. Section 377 expressly provides that
federal court jurisdiction only extends to claims by
those who "attempted to file a complete application
and application fee with an authorized legalization
officer . . . but had the application and fee refused by
that officer." While the phrase "attempted to file a
7152
complete application" might be ambiguous standing alone, any
uncertainty disappears when these words are read in context. In order for a
legalization officer to have refused a complete application, a complete
application must have been tendered. Clearly, some-one who was discouraged
from filling out an appli-cation or whose request for an application was
denied would not fall within the purview of S 377.
134 F.3d 921, 925-926 (emphasis added).
[2] Chief Judge Karlton properly held that we are bound by law of the
circuit to follow our holding in CSS V. See, e.g., Nghiem v. NEC Electronic,
Inc., 25 F.3d 1437, 1441 (9th Cir. 1994) (" 'We are bound by decisions of
prior panels' unless an en banc decision, Supreme Court decision or
subsequent legislation undermines those decisions." (quoting United States
v. State of Wash., 872 F.2d 874, 880 (9th Cir. 1989))). Thus, we reaffirm
that federal courts have no jurisdiction over claims brought by aliens who
failed to tender a complete application and fee with a legalization officer,
1 regardless of whether the failure to do so was attributable to the INS'
front-desking policy.
[3] CSS asserts that this jurisdictional bar raises serious
constitutional issues because it forecloses an equal protection
challenge to S 377 based on the distinction drawn in S 377
between aliens who tendered a complete application and fee
and aliens who would have but for the INS' front-desking pol-
icy. As CSS points out, only those excluded fromS 377's
ambit have standing to bring an equal protection challenge to
_________________________________________________________________
1 In CSS V, we concluded that the term "legalization officer" encom-passes
anyone authorized to receive applications, and not merely actual officers of
the Service. See 134 F.3d at 924 n.2 ("[T]he statute's require-ment that a
complete application form must be presented to a 'legalization officer'
should be broadly construed to mean presentation to anyone authorized by the
INS and IRCA to receive such form.").
7153
that section, but those with such standing are also those over whose claims
"no court shall have jurisdiction. " 8 U.S.C. S 1255a(f)(4)©. We have,
however, already resolved this issue. In CSS V, we specifically held that we
could not con-sider CSS' equal protection challenge to S 377, because, "[b]y
enacting S 377, Congress explicitly denied the federal courts the power to
review a constitutional challenge by persons who did not qualify for
benefits because they had failed to present a complete application to a
legalization officer within the stat-utory time limits." 134 F.3d at 928. We
are bound by our holding in CSS V, and must once again refuse to hear CSS'
equal protection challenge to S 377.
III
CSS appears to concede, with respect to the government's appeal, that the
remainder of the front-desking and advance parole class claims underlying
the injunction are barred by the relevant six-year statute of limitations,
see 28 U.S.C. S 2401(a), unless tolling is available based on Catholic
Social Services' original timely action filed in November 1986.2 The
government asserts that the district court erred by concluding that tolling
was available under the American Pipe doctrine for a successor class action.
In American Pipe and Construction Co. v. Utah , the
Supreme Court established that "the commencement of a class
action suspends the applicable statute of limitations as to all
_________________________________________________________________
2 The district court determined that the remainder of the class claims
underlying the injunction accrued upon the INS' implementation of the
advance parole and front-desking policies during the original application
period provided by IRCA (which ended May 4, 1988). This 1998 action
obviously having been filed more than six years after those events, the
dis-trict court expressly considered whether tolling was available to save
the time-barred claims. In its cross-appeal, CSS does not assert that any of
the front-desking and advance parole class claims underlying the preliminary
injunction were timely; instead, CSS relies upon the argument that its
claims are not time-barred because tolling is available and appropriate.
7154
asserted members of the class who would have been parties had the suit been
permitted to continue as a class action." 414 U.S. 538, 554 (1974). After
American Pipe, a split of opinion developed among the federal courts of
appeals as to whether tolling applied only to putative class members who
sought intervention after class certification was denied, or whether it
applied to any class member who later filed an individual action. In Crown,
Cork and Seal Co., Inc. v. Parker, the Supreme Court resolved this
controversy by holding that the filing of a class action tolled the statute
for all asserted mem-bers of the class, not just for intervenors. See 462
U.S. 345, 353-54 (1983).
[4] The Supreme Court has not yet considered whether the filing of a class
action tolls the statute of limitations for a sub-sequently filed successor
class action. However, every circuit to consider the question, including
this one, has held that such tolling is not available. See Basch v. Ground
Round, Inc., 139 F.3d 6, 11 (1st Cir. 1998) ("Plaintiffs may not stack one
class action on top of another and continue to toll the statute of
lim-itations indefinitely."), cert. denied, 119 S. Ct. 165 (1998);
Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir. 1994) ("Plaintiffs may
not piggyback one class action onto another and thus toll the statute of
limitations indefinitely."); Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.
1988) ("The courts of appeals that have dealt with the issue appear to be in
unani-mous agreement that the pendency of a previously filed class action
does not toll the limitations period for additional class actions by
putative members of the original asserted class.");
Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir. 1987) (holding that a
class action tolls the statute of limitations only for subsequent individual
actions, not for subsequent class actions); Korwek v. Hunt, 827 F.2d 874,
879 (2d Cir. 1987) (same); Salazar-Calderon v. Presidio Valley Farmers
Ass'n, 765 F.2d 1334, 1351 (5th Cir. 1985) (same).
In Robbin v. Fluor Corp., we refused to extend tolling
under American Pipe to successor class actions because such
7155
tolling would be contrary to "the policy considerations under-lying the
tolling doctrines of American Pipe and Crown, Cork." 835 F.2d at 214. We
further relied upon the "well-reasoned holdings" of the other circuits to
have so decided because of the "abusive" nature of successive class actions.
See id. Adopting the Second Circuit's reasoning in Korwek, we noted that
"American Pipe and Crown, Cork represent a careful balancing of the interest
of plaintiffs, defendants, and the court system," and "to extend tolling to
class actions 'tests the outer limits of the American Pipe doctrine and . .
. falls beyond its carefully crafted parameters into the range of abu-sive
options.' " Id. at 214 (quoting Korwek, 827 F.2d at 879).
CSS asserts that tolling is appropriate for this successor class action
because, unlike in Robbin, the original class here was granted class
certification. Thus, CSS asserts that the Robbin/Korwek line of cases is
distinguishable and inapplica-ble here because this second class action is
not an "abusive" attempt to reargue the denial of class certification.
Robbin, however, remains the law of the circuit, and CSS does not cite any
authority for the proposition that Robbin was limited to instances in which
class certification had been denied in a prior action. Cf. Salazar-Calderon,
765 F.2d at 1351 (noting that "[p]laintiffs have no authority for their
contention that putative class members may piggyback one class action onto
another and thus toll the statute of limitations indefinitely, nor have we
found any"). Nor is there is any intimation in Robbin itself that tolling
might be appropriate where the class was dismissed for lack of jurisdiction,
rather than for denial of class certification. See Robbin, 835 F.2d at
214-15. Moreover, even examining the facts of this case in light of
principles set forth by Supreme Court in American Pipe and Crown, Cork, and
relied on by this court in Robbin, there is no reason to allow tolling in
this action. See also Basch, 139 F.3d at 11 ("The policies-respect for Rule
23 and considerations of judicial economy-which animated the Crown, Cork and
American Pipe tolling rules dictate that the tolling rules . . .
7156
not permit plaintiffs to stretch out limitations periods by bringing
successive class actions.").
[5] Indeed, this very case demonstrates why it would be "abusive" to allow
tolling for successive class actions. See Robbin, 835 F.2d at 214. Such
tolling would allow parties to bring a potentially endless succession of
class actions, each tolling the statute of limitations for its successor.
Furthermore, this would frustrate "[t]he principal purposes of the
class-action procedure-promotion of efficiency and economy of litigation-"
Crown, Cork, 462 U.S. at 349, because tolling of individual actions
following the successor class would allow individual actions to be filed an
absurdly long time after the events underlying the litigation. The case
before us is an appeal from the entry of a preliminary injunction roughly
thir-teen years after the events in question, with final review of any
individual claims, following resolution of the class litiga-tion, destined
to occur sometime far into the next millennium. And parties like CSS have
no incentive not to file an endless succession of class actions because they
clearly benefit from any resulting delay, regardless of whether the
resolution of their claims is favorable. See INS v. Doherty , 502 U.S. 314,
323 (1992) ("[A]s a general matter, every delay works to the advantage of
the deportable alien who wishes merely to remain in the United States."). We
agree with the First Circuit that "[t]his simply cannot be what the American
Pipe rule was intended to allow." Basch, 139 F.3d at 11.
[6] Further, this new class action does not raise the effi-ciency concerns
present in most other class actions because there is in fact no need for
class treatment of CSS' claims. Cf. Crown, Cork, 462 U.S. at 351 (noting
that the American Pipe tolling rule was designed to avoid the inefficiencies
that would result from "a needless multiplicity of actions").
Unlike normal claims of injury that are lost where barred by
the relevant statute of limitations, CSS' challenges to the
front-desking and advance parole policies may be raised by
individual aliens in the judicial review of their deportation
7157
orders. In fact, both IRCA and IIRIRA imply that judicial review of such
questions cannot occur outside the context of review of an order of
deportation. See 8 U.S.C. S 1255a(f)(4)(A) ("There shall be judicial review
of [a denial of legalization] only in the judicial review of an order of
deportation."); see also id. S 1252(b)(9) (providing for the "Consolidation
of questions for judicial review " in the judicial review of a final order
of deportation). Class treatment is unnecessary; a ruling by this court in
the review of an individ-ual alien's deportation order would be dispositive
in all simi-lar cases within the circuit, and aliens forced to raise their
front-desking and advance parole challenges in their deporta-tion review
would not have to re-invent the wheel in each case. Cf. Naranjo-Aguilera v.
INS, 30 F.3d 1106, 1114 (9th Cir. 1994) ("When a court of appeals
invalidates a regulation, even in the context of review an individual
petitioner's order of deportation, that regulation is infirm across the
circuit and in every case.").
[7] It must also be said that tolling is inappropriate because
the aliens represented by CSS did, in an important sense,
sleep on their rights. See American Pipe, 414 U.S. at 554 (not-
ing policy of denying tolling to parties who have slept on their
rights). In CSS III, the Supreme Court put CSS on notice that,
absent allegations that class members seeking legalization
were front-desked after presenting applications to the INS, its
claims were not justiciable. See 509 U.S. at 66. Thus, CSS
could have avoided dismissal of its original timely action by
alleging that class members had been front-desked after pre-
senting applications. As we noted in CSS V,"CSS had over
three years to amend their pleadings in response to the Court's
decision in [CSS III] before the enactment of S 377. They
failed to do so." 134 F.3d at 927. In fact, CSS did amend its
pleadings in response to CSS III by filing a Seventh Amended
Complaint, but inexplicably failed to include allegations of
front-desking, instead adding parties who had merely been
discouraged from applying by the front-desking policy, and
thus had never been front-desked. Nor can it be argued that
7158
the passage of S 377 somehow explains CSS' failure to address the
front-desking issue prior to dismissal because, as we noted in CSS V,
"[s]ection 377 did not change the require-ment that class members must have
been front-desked in order to have ripe claims; instead, S 377 eliminated
federal court jurisdiction for aliens who were not actually front-desked but
were discouraged by the policy." Id. Thus, S 377 merely eliminated
jurisdiction over those whose claims were not ripe pursuant to the Supreme
Court's holding in CSS III, and did not impose any additional requirements
for the former class that might have caught Catholic Social Services
unawares. While we do not suggest in the slightest that CSS is abusively
trying to relitigate the issue of class certification, we are persuaded that
tolling is not appropriate in this case where CSS is trying to relitigate
other issues it clearly had an opportunity to address in the previous class
action.
[8] Finally, while Robbin, rather than Korwek, is binding upon this court,
we note that CSS' reliance upon Korwek is misplaced. Korwek did not
recognize or endorse tolling for successor class actions. While Korwek
reserved the question of whether "the filing of a potentially proper
subclass would be entitled to tolling under American Pipe, " Korwek also
rec-ognized that extending tolling to class actions "tests the outer limits
of the American Pipe doctrine and . .. falls beyond its carefully crafted
parameters into the range of abusive options." 827 F.2d at 879. And Korwek
was a case, like this one, in which a class had been certified in the
previous action.
See id. at 877. Thus, contrary to CSS' arguments, Korwek
does not provide support for the proposition that tolling is
appropriate where, as here, the previous class was granted
(rather than denied) certification. Instead, Korwek makes
plain that "the tolling rule established by American Pipe, and
expanded upon by Crown, Cork, was not intended to be
applied to suspend the running of statutes of limitations for
class action suits filed after a definitive determination of class
certification." Id. at 879 (emphasis added). Here, there was
such a "definitive determination of class certification" in the
7159
prior action; thus, Korwek does not support tolling for this
successor class action. And like the Second Circuit in
Korwek, we need not determine whether in some situations
tolling might be available for a properly limited successor
"subclass" action, because here, tolling is so clearly inappro-
priate and unnecessary.3
IV
[9] Having determined, with respect to the government's appeal, that the
remainder of the class claims underlying the injunction are barred by the
relevant statute of limitations, we need not consider the merits of CSS'
challenges to the advance parole and front-desking policies. We note,
however, that regardless of the merits of those challenges, the prelimi-nary
injunction itself is plainly contrary to the specific juris-dictional
limitation on injunctive relief provided by 8 U.S.C. S 1252(f).
Section 1252(f) of Title 8 (as added by IIRIRA S 306(a)) is entitled "Limit
on injunctive relief" and provides that:
Regardless of the nature of the action or claim or of the identity
of the party or parties bringing the action, no court (other than the
Supreme Court) shall have jurisdiction or authority to enjoin or restrain
the operation of the provisions of part IV of this subchapter [8 U.S.C.
1221- 1231], as amended by [IIRIRA], other than with respect to the
applica-tion of such provisions to an individual alien against whom
proceedings under such part have been initi-ated.
_________________________________________________________________
3 Contrary to the dissent's contention, we do not hold that "plaintiffs,
before 1993, should have responded to a statute that was not passed until
1996." As explained in part II, supra, we do not have jurisdiction to
con-sider CSS's challenge to S 377 of IIRIRA-the statute passed in 1996 --
regardless of whether that challenge was timely.
7160
8 U.S.C. S 1252(f) (emphasis added).
Part IV is entitled "Inspection, Apprehension, Examination, Exclusion, and
Removal," and governs detention and deporta-tion of aliens. See 8 U.S.C. S
1221 et seq. Thus, the plain lan-guage of S 1252(f) would seem to preclude
classwide injunctive relief barring detention and deportation. The Supreme
Court confirmed as much in Reno v. American-Arab Anti-Discrimination
Committee:
By its plain terms, and even by its title, #AD8E # 1252(f)] is
nothing more or less than a limit on injunctive relief. It prohibits federal
courts from granting classwide injunctive relief against the operation of
[part IV], but specifies that this ban does not extend to individual cases.
119 S. Ct. 936, 942 (1999) (emphasis added).
[10] CSS asserts that S 1252(f) does not bar the classwide injunctive relief
granted here because the district court's injunction is a remedy for claims
brought under the legaliza-tion provisions of part V ("Adjustment and Change
of Status"), rather than for claims brought under the deportation and
detention provisions of part IV. However, the injunctive relief granted by
the district court clearly interferes with the operation of the detention
and deportation provisions of part IV because the preliminary injunction
bars the detention and deportation of members of the former class. Thus,
regardless of the fact that the injunction provides relief for a harm
osten-sibly created by the INS' misinterpretation of the legalization
provisions of part V, insofar as it would interfere with the operation of
part IV, the injunction here is contrary to the plain language of S 1252(f)
and the district court lacked the jurisdiction to enter it. See
American-Arab, 119 S. Ct. at 942.
V
For the foregoing reasons, in the government's appeal, we
reverse the preliminary injunction because the class claims
7161
underlying the injunction are barred by the relevant statute of limitations,
and in Catholic Social Services' cross-appeal, we affirm the district
court's holding that it did not have jurisdic-tion over the claims of aliens
who failed to tender a complete legalization application and fee.
Accordingly, we remand to the district court with instructions to dismiss
the time-barred claims.
AFFIRMED in part, REVERSED in part, and
REMANDED with instructions.
_________________________________________________________________
SCHROEDER, Circuit Judge, dissenting:
The majority holds that the plaintiffs' class action is barred by the
six-year statute of limitations because the plaintiffs failed to file a
class action on behalf of this class within six years of the adoption of the
challenged regulations. Yet plain-tiffs were members of the class that did
file a timely action in 1986 to challenge the policies. The present action
seeks to present a claim within the standing limitations of a statute that
was not enacted until 1996. Thus the majority holds that the plaintiffs,
before 1993, should have responded to a statute that was not passed until
1996.
Having already filed a complaint in 1986, plaintiffs should have been able
to proceed by amending their original com-plaint to respond to the new
statute. They had to file this sec-ond class action only because, in an
earlier appeal, the majority ordered the first action dismissed without an
oppor-tunity to amend, thus creating the very statute of limitations issue
that confronts us today. See Catholic Social Servs. v.
Reno, 134 F.3d 921 (9th Cir. 1998) ("CSS V"). As I wrote in
my partial dissent then, the majority should have followed the
lead of the Supreme Court in its 1993 opinion in Catholic
Social Servs. v. Reno, 509 U.S. 43, 65-67 (1993) ("CSS III"),
and remanded for the district court to determine whether there
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were members of the larger class that met the new standing requirements. CSS
V, 134 F.3d at 928-29 (Schroeder, J. dis-senting in part). Having left the
door open a crack at that time, CSS V, 134 F.3d at 928 n.4, the majority now
slams it shut and effectively announces that we have all been wasting our
time for the last thirteen years of class litigation.
The guiding authorities should be American Pipe and Con-struction Co. v.
Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal, Co. v. Parker, 462 U.S.
345 (1983), which address the problem of asserted members of an uncertified
class action who rely upon that ongoing litigation representing their
inter-ests and refrain from filing a separate suit. These cases hold that,
for such plaintiffs, the statute of limitations is tolled dur-ing the period
of the pendency of the class action. See American Pipe, 414 U.S. at 554;
Crown, Cork , 462 U.S. at 350. This case presents an even more compelling
argument for tolling than American Pipe and Crown, Cork, since the same
organizational plaintiffs and their attorneys have contin-ually directed all
of this litigation and have conscientiously sought to respond to the
changing legal standards imposed by Congress and the courts. Unlike the
authorities relied upon by the majority, plaintiffs are guilty of no abuse.
In the cases the majority cites, the plaintiffs were not doing their best to
respond to shifting legal standards but were try-ing to relitigate the issue
of class certification. See Basch v. Ground Round, Inc., 139 F.3d 6, 11
(1st Cir. 1998) (plaintiffs cannot perpetually toll the statute of
limitations by filing suc-cessive class actions to attract more potential
plaintiffs "regardless of how many times a court declines to certify the
class"); Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.
1994) (plaintiffs may not piggyback class actions onto each
other to repeatedly litigate the issue of the adequacy of the
named class representative); Andrews v. Orr, 851 F.2d 146,
148 (6th Cir. 1988) (prior action where class certification
denied did not toll the statute of limitations for subsequent
class action); Robbin v. Fluor Corp., 835 F.2d 213, 214-15
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(9th Cir. 1987) (same); Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987)
("The Supreme Court . . . certainly did not intend to afford plaintiffs the
opportunity to argue and reargue the question of class certification by
filing new but repetitive complaints."); Salazar-Calderon v. Presidio Valley
Farmers Assoc., 765 F.2d 1334, 1351 (5th Cir. 1985) (statute of limita-tions
tolled the first time plaintiffs move to certify a class; if this motion
fails, the statute of limitations is not tolled during any subsequent
certification motions). The majority correctly notes that Robbin is the law
of the circuit and that we must obey its holding. See Maj. Op. at 7155. But
Robbin does not speak to the issue that confronts us here. As the majority
rec-ognizes, in Robbin we adopted the Second Circuit's reasoning in Korwek.
Maj. Op. at 7156. Korwek expressly left open almost the identical question
presented here: "whether the fil-ing of a potentially proper subclass would
be entitled to toll-ing under American Pipe." 827 F.2d at 879.
The majority faults the plaintiffs for not citing authority in support of
their argument that the statute of limitations should be tolled for a
subsequent class action only where the prior class action was not certified.
Maj. Op. at 7156. More telling is that the majority does not cite to a
single case where tolling was not allowed when the prior class action was
certified but the case dismissed on unrelated grounds. The majority implies
that Korwek was such a case, Maj. Op. at 7159, but a close reading of Korwek
discloses that the plaintiffs sought to cer-tify a class nearly identical to
a class that the district court had previously rejected. 827 F.2d at 876,
879.
In contrast to the cases cited by the majority, tolling in the present case
would further the policy of judicial efficiency and economy underlying the
class action procedure. American Pipe, 414 U.S. at 553. Judicial economy
would be ill-served by forcing the plaintiffs here to proceed in individual
lawsuits.
Id. at 553-54; see also Crown, Cork, 462 U.S. at 350-51. "The
result would be a needless multiplicity of actions-precisely
the situation that Federal Rule of Civil Procedure 23 and the
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tolling rule of American Pipe were designed to avoid."
Crown, Cork, 462 U.S. at 351.
Moreover, allowing tolling here would not frustrate the two purposes of the
statute of limitations, which are giving timely notice to defendants and
barring plaintiffs who have slept on their rights. American Pipe, 414 U.S.
at 554; Crown, Cork, 462 U.S. at 352. The government is not being caught
unaware in this case. The prior CSS suit informed the government "not only
of the substantive claims being brought against[it], but also of the number
and generic identities of the potential plaintiffs who may participate in
the judgment." American Pipe, 414 U.S. at 554-55. Furthermore, "[c]lass
members who do not file suit while the class action is pending cannot be
accused of sleeping on their rights." Crown, Cork, 462 U.S. at 352. It was
entirely appropriate for the plaintiffs here to rely on the previous action.
The class that was certified in the prior CSS litigation encompassed claims
of front-desking. CSS III, 509 U.S. at 47-48; CSS V, 134 F.3d at 924. Nor
has CSS slept on its rights by not anticipating IIRIRA. The major-ity's
holding thus disregards the Supreme Court's reasoning in American Pipe and
Crown, Cork and works a grave injus-tice upon aliens who have been aggrieved
by an INS regula-tion that we have recognized as invalid. Catholic Social
Servs., Inc. v. Thornburgh, 956 F.2d 914 (9th Cir. 1992), vacated on other
grounds, CSS III, 509 U.S. 43 (1993).
For these reasons, I respectfully dissent.