The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District
Plaintiffs Maria Santillan, et al., seek certification of a
class consisting of persons who have been or will be granted
lawful permanent resident status by the Justice Department's
Executive Office of Immigration Review and to whom the United
States Citizenship and Immigration Services has failed to issue
evidence of status as a lawful permanent resident. The class
definition excludes those plaintiffs to other actions pending in
Florida and Texas district courts. Having considered the
arguments of the parties, and for the reasons set forth below,
the court issues the following order. BACKGROUND
Named Plaintiffs Maria Santillan, et al., were granted the
status of lawful permanent resident ("LPR") by Immigration Judges
or by the Board of Immigration Appeals, constituent courts of the
Justice Department's Executive Office of Immigration Review
("EOIR"). Following the EOIR's determination, plaintiffs sought
documentation of their adjusted status as LPRs from their local
U.S. Citizenship and Immigration Services ("USCIS") suboffice,
through a process called Alien Documentation, Identification and
Telecommunication ("ADIT") processing.
Under policies commenced in the aftermath of September 11,
2001, all applicants for documentation of their adjusted status
through ADIT processing must undergo background and security
checks involving multiple federal agencies. See Sposato Decl.
¶¶ 1-9. Until those checks are completed, the USCIS is not
permitted to issue any immigration benefit to plaintiffs, such as
adjustment of status to lawful permanent residency or the
issuance of temporary documentation verifying LPR status. See
Sposato Decl. ¶¶ 11-12.
Plaintiffs allege that under this current system, LPRs are
waiting from several months to over one year for the commencement
of their ADIT processing, as well as long time periods for the
completion of processing and the issuance of documentation
verifying LPR status. See Plaintiffs' Exhs. A-J. They allege
that during this post-adjudication, pre-documentation period,
many immigrants are losing work and travel authorization due to
the expiration of their former immigration status, the refusal of
agencies to renew work authorizations due to the immigrants'
adjustment to LPR status, and lack of documentation of their new
LPR status. See, e.g., Santillan Decl. ¶¶ 10-14; Rodriguez
Santillan Decl. ¶¶ 10-13. On July 4, 2004, plaintiffs filed an
action for declaratory and injunctive relief, seeking to compel
defendant officials to issue LPRs evidence of their adjusted
legal status "in a timely manner."
Since the date of filing their complaint, a period of only two
and one-half months, the status of all ten originally named
plaintiffs has changed. After waiting periods of 10 to 20 months,
seven named plaintiffs received documentation of their lawful
permanent resident status during the period of July 30, 2004 through mid-September, 2004, and the three
remaining plaintiffs were summoned to commence ADIT processing.
See Sposato Supplemental Decl. ¶¶ 1-2. In a separate motion
pending before this court, plaintiffs have moved to add six new
named plaintiffs to their complaint. See Pl.'s Mot. to for
Leave Amend. According to plaintiffs, these proposed new named
plaintiffs have not received or been summoned to receive
documentation of their LPR status, as they remain in the middle
of various stages of pre-ADIT or ADIT processing. Id. at 4;
I. Article III Justiciability
The jurisdiction of federal courts depends on the existence of
a "case or controversy" under Article III of the Constitution.
PUC v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996). Inquiry into
a plaintiff's standing under Article III is a jurisdictional
requirement that must be satisfied prior to class certification.
LaDuke v. Nelson, 762 F.2d 1318, 1325 (9th Cir. 1985). The
present motion for class certification raises questions relating
to three dimensions of justiciability: standing, mootness, and
ripeness. See Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir.
2001) (noting that standing, class certification, and the scope
of relief are "often intermingled").
Article III § 2 of the Constitution extends the judicial power
of the federal courts only to cases or controversies. Steel Co.
v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998).
Under Article III, federal courts cannot entertain a litigant's
claims unless that party has satisfied its burden to demonstrate
both constitutional and prudential standing to sue. Defenders of
Wildlife v. Lujan, 504 U.S. 555, 560 (1992). To meet
constitutional requirements, a plaintiff must show that (1) it
has suffered an "injury in fact" which is "concrete and
particularized" and "actual or imminent"; (2) the injury is
fairly traceable to the challenged actions the by defendant; and,
(3) "it must be `likely,' as opposed to merely `speculative,'
that the injury will be redressed by a favorable decision." Id.
at 560-61 (internal quotations and citations omitted). Prudential
requirements for standing include: (1) whether plaintiff's alleged injury falls
within the "zone of interests" protected by the statute or
constitutional provision at issue, (2) whether the complaint
amounts to generalized grievances that are more appropriately
resolved by the legislative and executive branches, and (3)
whether the plaintiff is asserting his or her own legal rights
and interests, rather than those of third parties. See Desert
Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1179 (9th
Cir. 2000); Gladstone, Realtors v. Village of Bellwood,
441 U.S. 91, 100 (1979); Powers v. Ohio, 499 U.S. 400, 410 (1991).
"A claim is moot if it has lost its character as a present,
live controversy." American Rivers v. National Marine Fisheries
Service, 126 F.3d 1118, 1123 (9th Cir. 1997) (citing American
Tunaboat Ass'n v. Brown, 67 F.3d 1404, 1407 (9th Cir. 1995)).
"In the context of declaratory and injunctive relief, [a
plaintiff] must demonstrate that she has suffered or is
threatened with a concrete and particularized legal harm, coupled
with a sufficient likelihood that she will again be wronged in a
similar way." Bird v. Lewis & Clark College, 303 F.3d 1015,
1019 (9th Cir. 2002) (internal quotation marks and citation
omitted), cert. denied, 538 U.S. 923. Where the activities
sought to be enjoined have already occurred and the courts
"cannot undo what has already been done, the action is moot."
Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379
(9th Cir. 1978). "The burden of demonstrating mootness is a heavy
one." Northwest Environmental Defense Center v. Gordon,
849 F.2d 1241, 1243 (9th Cir. 1988).
In the class action context, the mootness of named plaintiffs
does not defeat the class claims where unnamed class members
continued to present justiciable claims and where the class has
already been certified under Rule 23. See County of Riverside
v. McLaughlin, 500 U.S. 44, 52 (1991). Certification itself
brings unnamed class members before the court for Article III
purposes, and therefore the mooting of a named plaintiff's claims
does not require dismissal. Sosna v. Iowa, 419 U.S. 393,
399-400 (1975) (holding that a mooted named plaintiff challenging
a one-year residency requirement could continue to represent a
certified class because "[a]lthough the controversy is no longer alive as to [named plaintiff], it
remains very much alive for the class of persons she has been
certified to represent" and because otherwise "the issue sought
to be litigated escapes full appellate review at the behest of
any single challenger"). Before class certification, however, the
mootness of named class members will bar adjudication of the Rule
23 motion unless the case falls into a recognized exception to
mootness doctrine, for instance where the challenged conduct is
transitory. See County of Riverside, 500 U.S. at 52
(upholding a certified class despite pre-certification mootness
of named plaintiffs' claims because the "inherently transitory"
nature of some claims would deny any realistic chance for class
certification before proposed a representative's personal
interest would expire).
Mootness doctrine also recognizes an exception for claims which
are "capable of repetition yet evading review." Native Village
of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994);
Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir. 1985). This
exception is limited to extraordinary circumstances where two
elements combine: (1) the challenged action is of limited
duration, too short to be fully litigated prior to its cessation
or expiration, and (2) there is a reasonable expectation that the
same complaining party will be subjected to the same action
again. Porter v. Jones, 319 F.3d 483, 489-90 (9th Cir. 2003);
Wiggins, 760 F.2d at 1011. When resolution of a controversy
depends on facts that are unique or unlikely to be repeated, the
action is not capable of repetition and is moot. See PUC v.
FERC, 100 F.3d 1451, 1460 (9th Cir. 1996). After certification
of a class action, the second element articulated in Porter
will be satisfied even where a named plaintiff may not personally
be subjected to the short-duration harm again. See Sosna,
419 U.S. at 399-400 (affirming class certification where a challenged
practice could not be enforced personally against named plaintiff
again, but would be enforced against other class members).
"Ripeness doctrine protects against premature adjudication of
suits in which declaratory relief is sought," Hodgers-Durgin v.
de la Vina, 199 F.3d 1037, 1044 (9th Cir. 1999) (en banc), in
order to prevent "entanglement in theoretical or abstract
disagreements that do not yet have a concrete impact on the parties." 18 Unnamed "John Smith" Prisoners v. Meese,
871 F.2d 881, 883 (9th Cir. 1989). The ripeness inquiry contains
both a constitutional and a prudential component. Thomas v.
Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir.
2000) (en banc).
The requirements of Rule 23 protect defendants from "overbroad"
class definitions. See Amchem Products, Inc., v. Windsor,
521 U.S. 591, 560 (1997). Rule 23 does not, however, limit the
geographic scope of a certified class. Califano v. Yamasaki,
442 U.S. 682, 702 (1979). A nationwide class is permissible under
principles of equity because "the scope of injunctive relief is
dictated by the extent of the violation established, not by the
geographical extent of the plaintiff class." Id. When asked to
certify a nationwide class, a district court must ensure that
nationwide certification is appropriate, and that such
certification would not "improperly interfere with the litigation
of similar issues in other judicial contexts." Id. Accordingly,
district courts may shape the contours of a nationwide class to
exclude pending cases addressing similar issues, thus avoiding
interference with other courts. See Ali v. Ashcroft,
346 F.3d 873, 888 (9th Cir. 2003). See also Lundquist v. Security
Pac. Automotive Financial Serv. Corp., 993 F.2d 11, 14 (2d Cir.
1993) (holding that a district court "is not bound by the class
definition proposed in the complaint and should not dismiss the
action simply because the complaint seeks to define the class too
A party seeking to certify a class must satisfy four
prerequisites enumerated in Federal Rule of Civil Procedure
23(a), as well as at least one of the requirements of Rule 23(b).
The prerequisites of Rule 23(a) include: (1) numerosity (a class
so large that joinder of all members is impracticable); (2)
commonality (questions of law or fact common to the class); (3)
typicality (named parties' claims are typical of the class); and
(4) adequacy of representation (representatives will fairly and
adequately protect the interests of the class). In addition, Rule
23(b) requires a showing that the action is maintainable under
Rule 23(b)(1), (2), or (3). See Rule 23(b). Plaintiffs assert
that this case falls within Rule 23(b)(2). Rule 23(b)(2) permits class actions
for declaratory or injunctive relief where the party opposing the
class "has acted or refused to act on grounds generally
applicable to the class." Rule 23(b)(2).
The party seeking relief must provide facts sufficient to
satisfy the requirements of Rule 23(a) and (b). In ruling on a
motion to certify, the court accepts as true a plaintiff's
allegations in the complaint, as long as the court has sufficient
information to form a reasonable judgment on the class
certification requirements. See Blackie v. Barrack,
524 F.2d 891, 901 n. 17 (9th Cir. 1975) (holding that "[s]o long as [a
district judge] has sufficient material before him to determine
the nature of the allegations, and rule on compliance with the
Rule's requirements, and he bases his ruling on that material,
his approach cannot be faulted because plaintiffs' proof may fail
at trial"). Courts may not review the merits of a case for
purposes of class certification, Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 177-78 (1974), except as necessary to perform a
rigorous Rule 23 analysis. See Moore v. Hughes Helicopters,
Inc., 708 ...