FILED

NOT FOR PUBLICATION

FEB 18 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGEL DE JESUS ZEPEDA RIVAS; et Nos. 20-16276 al., 20-16690

Plaintiffs-Appellees, D.C. No. 3:20-cv-02731-VC v.

DAVID JENNINGS, Acting Field Officer MEMORANDUM* Director; et al.,

Defendants-Appellants,

and

GEO GROUP, INC.; NATHAN ALLEN,

Warden,

Defendants.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Argued and Submitted February 8, 2021 San Francisco, California

Before: BERZON, CHRISTEN, and BADE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiffs, civil immigration detainees housed at Mesa Verde Detention

Facility and Yuba County Jail (collectively, the Facilities), filed a class petition for

writ of habeas corpus, and a class complaint for injunctive and declaratory relief.

Plaintiffs alleged the conditions of confinement at the Facilities violated their Fifth

Amendment right to due process in light of the threat posed by the COVID-19

pandemic. Through a series of orders, the district court established a system to

consider individual bail applications and subsequently issued multiple bail orders

granting indefinite release to over 130 detainees.

The defendants first filed an interlocutory appeal challenging the temporary

restraining order entered April 29, 2020, the bail orders issued thereunder, and the

preliminary injunction entered June 9, 2020. Defendants separately appealed

additional bail orders issued after the preliminary injunction. This memorandum

disposition resolves certain threshold issues presented in these appeals and is

accompanied by a separate order referring the remaining issues to mediation.

Here, we conclude that we have jurisdiction to review the April 29, 2020

temporary restraining order, the June 9, 2020 order granting preliminary

injunction, and the bail orders; that plaintiffs showed a likelihood of success on

their claim that conditions at the Facilities fell below a constitutional minimum at

2 least as of the time the temporary restraining order was entered; and that, contrary

to the government’s argument, district courts have authority to enter injunctive

relief to remedy unconstitutional conditions of confinement, including

overcrowding that poses health dangers, under certain circumstances.

1. We have jurisdiction to review interlocutory orders “granting, continuing,

modifying, refusing or dissolving injunctions, or refusing to dissolve or modify

injunctions.” 28 U.S.C. § 1292(a)(1). Generally, temporary restraining orders are

not appealable, see E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 762 (9th

Cir. 2018) (citing Abbott v. Perez, 138 S. Ct. 2305, 2319 (2018)), but the label

attached to an order does not determine our jurisdiction. See Abbott, 138 S. Ct. at

2319. Rather, “[w]e treat a TRO as a preliminary injunction ‘where an adversary

hearing has been held, and the court’s basis for issuing the order [is] strongly

challenged.’” E. Bay Sanctuary Covenant, 932 F.3d at 762 (second alteration in

original) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002)).

We also consider whether the temporary restraining order remains in effect for

longer than 14 days. Id.

We conclude the individual bail orders issued pursuant to the temporary

restraining order and appealed here are reviewable pursuant to § 1292(a)(1). The

district court issued each bail order following adversarial briefing by both parties

3 and the government strenuously challenged the district court’s legal basis for

issuing each bail order. Moreover, the district court’s bail orders were entered for

an indefinite period, thus exceeding the presumptive 14-day duration of temporary

restraining orders. See Fed. R. Civ. P. 65(b).

Because we conclude the bail orders are appealable, we also hold the

temporary restraining order entered on April 29, 2020 is appealable. In Swint v.

Chambers County Commission, the Supreme Court suggested that a nonappealable

order would be appealable if it were “inextricably intertwined” with an appealable

order or if “review of the former decision [is] necessary to ensure meaningful

review of the latter.” 514 U.S. 35, 51 (1995). This court has similarly held “[a]

summary judgment order that provides the legal authority to issue an

injunction—that constitutes a ‘necessary predicate’ to complete review of the

injunction—is inextricably bound up with the injunction.” Paige v. California, 102

F.3d 1035, 1040 (9th Cir. 1996) (alteration in original) (quoting Self-Realization

Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 905 (9th

Cir. 1995)). Because the April 29 temporary restraining order articulated the

district court’s legal justification for the bail orders, the bail orders and the

temporary restraining order worked in tandem. Accordingly, we have jurisdiction

to review the April 29 temporary restraining order.

4 2. We also conclude that plaintiffs demonstrated a likelihood of success on

the merits of their conditions-of-confinement claim as of the time the district court

entered its April 29 temporary restraining order. “The Fifth Amendment requires

the government to provide conditions of reasonable health and safety to people in

its custody.” Roman v. Wolf (Roman I), 977 F.3d 935, 943 (9th Cir. 2020) (citing

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989)

and Doe v. Kelly, 878 F.3d 710, 714 (9th Cir. 2017)). The government violates this

duty if:

(i) [It] ma[kes] an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the [government] did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved . . . ; and (iv) by not taking such measures, the [government] caused the plaintiff’s injuries.

Id. (alteration in original) (quoting Gordon v. County of Orange, 888 F.3d 1118,

1125 (9th Cir. 2018)).

When the temporary restraining order was entered, the district found

COVID-19 posed grave health risks, the crowded detention facilities were a

“tinderbox” for COVID-19 transmission, and COVID-19 posed a serious

health-risk to all detainees—not only those in high-risk categories. Despite these

risks, the district court found the government had only recently taken modest

5 measures in response to the pandemic and that social distancing was still

impossible for most detainees. The government had not yet identified detainees

with medical conditions that made them more vulnerable to COVID-19. Further,

the government had only tested two detainees at the Facilities even though

detainees regularly arrived from facilities with confirmed COVID-19 cases.

The government does not argue these findings were clearly erroneous.

Rather, addressing the conditions that existed at that time of the temporary

restraining order, the government primarily argues that the lack of confirmed

COVID-19 cases at the Facilities undercuts plaintiffs’ claim that they were entitled

to injunctive relief. This argument is defeated by the well-established principle

that to prevail on a conditions-of-confinement claim, plaintiffs need only prove a

“sufficiently imminent danger[ ],” because a “remedy for unsafe conditions need

not await a tragic event.” Helling v. McKinney, 509 U.S. 25, 33–34 (1993). On

this record, we agree with the district court that plaintiffs demonstrated a likelihood

of success on their claim that conditions at the Facilities fell below the

constitutional threshold when the April 29 temporary restraining order was entered.

3. The government argues that to the extent the plaintiffs’ claims rely on

habeas corpus, the district court lacked authority to remedy plaintiffs’ conditions of

confinement. But in Roman I, we recognized that the Due Process Clause of the

6 Fifth Amendment provides civil immigration detainees an implied cause of action

to seek equitable relief from unconstitutional conditions of confinement. 977 F.3d

at 941–42. As in Roman I, we need not decide whether a writ habeas corpus is the

proper vehicle to pursue plaintiffs’ claim because plaintiffs also brought a class

action seeking declaratory and injunctive relief to remedy the condition. See id. at

941.

District courts “possess[] broad equitable authority to remedy a likely

constitutional violation.” Id. at 945. “The district court may, for example, require .

. . a reduction in the population to a level that would allow for six-foot social

distancing, if it concludes [that] action[] [is] necessary to bring the conditions to a

constitutionally adequate level.” Id. at 945–46; see also Brown v. Plata, 563 U.S.

493, 502 (2011) (affirming a three-judge district court’s order limiting the inmate

population at California prisons because overcrowding had resulted in Eighth

Amendment violations and no other relief would cure the violation). Accordingly,

although we do not decide here the scope of the district court’s authority to enter

injunctive relief, we conclude the district court had authority to enter appropriate

injunctive relief to remedy ongoing violations.

4. We do not decide here whether unconstitutional conditions of

confinement persisted as of the time the district court entered the preliminary

7 injunction on June 9, 2020. By the time the district court entered the preliminary

injunction, it had already held eight status conferences, and the preliminary

injunction order includes the district court’s finding that the government

unreasonably resisted taking measures to safeguard detainees in response to

COVID-19. The parties are no doubt aware of the positions asserted at the status

conferences but those transcripts were not included in the parties’ excerpts of

record. Whether the district court’s finding that the government unreasonably

failed to take action is supported by the record will likely require review of those

transcripts. Accordingly, we do not decide whether the district court exceeded the

scope of its authority to enter injunctive relief as of June 9.

The government separately argues the district court did not have authority to

release any plaintiffs detained pursuant to the mandatory detention statutes, 8

U.S.C. §§ 1226(c) and 1231(a)(2). Neither party briefed whether the district court

was required to prioritize releasing detainees who were not subject to mandatory

detention. Rather than decide these questions and the other unresolved issues, in

the accompanying Order we refer this appeal to the Circuit Mediation Program.

8