Catholic Social Services, Inc. v. Immigration & Naturalization Service

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge KOZINSKI; Dissent by Judge FERNANDEZ; Partial Concurrence and Partial Dissent by Judge GRABER.

Plaintiffs bring a class action challenging the advance parole policy of the Immigration and Naturalization Service (“INS”) as inconsistent with the Immigration Reform and Control Act of 1986 (“IRCA”), and challenging § 377 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) as inconsistent with the equal protection component of the Due Process Clause of the Fifth Amendment. We must decide whether, under American Pipe Construction Co. v. Utah, 414 U.S. 538 , 94 S.Ct. 756 , 38 L.Ed.2d 713 (1974), and Crown Cork & Seal Co. v. Parker, 462 U.S. 345 , 103 S.Ct. 2392 , 76 L.Ed.2d 628 (1983), the statute of limitations was tolled during the pendency of an earlier class action, and whether plaintiffs may bring a class action in this case. If we decide that this suit may go forward as a class action, we must further decide whether the district court acted appropriately in granting in part, and denying in part, preliminary injunctive relief to plaintiffs.

For the reasons that follow, we hold that the statute…

with whom Judges TROTT, FERNANDEZ, and T.G. NELSON join,

dissenting:

I

The majority raises a conflict with the law of every circuit that has decided a question of national significance. The question is whether filing a class action tolls the statute of limitations for purposes of filing a subsequent class action. We know that a class action tolls limitations for purposes of filing individual claims. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54 , 103 S.Ct. 2392 , 76 L.Ed.2d 628 (1983). The Supreme Court’s rationale for this result is elegant and appealing: While the class action is pending, putative class members are entitled to rely on it to preserve their rights. If the rule were otherwise, as the limitations period drew to a close, class members would feel compelled to protect themselves by filing individual lawsuits, even though the class action was still pending. This would undermine the policy of class litigation, which favors filing a single lawsuit rather than many.

To avoid this perverse result, Crown, Cork adopted a simple solution: If the class action failed before reaching the merits, putative class members would be allowed to bring individual lawsuits…

with whom KOZINSKI and TROTT, Circuit Judges, join dissenting:

I respectfully dissent for the reasons cogently set forth in the majority opinion in Catholic Social Services, Inc. v. INS, 182 F.3d 1053 (9th Cir.1999), which I now adopt.

concurring in part and dissenting in part:

I concur in the majority’s holding that Plaintiffs who are “constructive front-desk-ers” may bring an equal protection challenge. That claim did not arise until 1996, when Congress enacted § 377. See Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 594 (9th Cir.1990) (holding that a constitutional challenge to a federal statute accrued when the statute was enacted); 28 U.S.C. § 2401 (providing a six-year statute of limitation for actions against the United States). I respectfully dissent, however, from the remainder of the opinion, because I believe that the other claims are time-barred.

BACKGROUND

1. General Background

The basic issue in all the Catholic Social Services (CSS) cases is whether certain Immigration and Naturalization Service (INS) regulations are valid. Those regulations — the “advance parole” regulations— state that aliens who once left the United States without prior INS approval, even for the briefest periods, are ineligible for amnesty under the Immigration Reform and Control Act of 1986. 8 C.F.R. § 2245a.1(g).

There are three possible kinds of plaintiffs. “Front-deskers” are those aliens who tendered…