A few days ago, on August 15, the U.S. Court of Appeals for the Ninth Circuit released its decision in the remarkable case of Flores v. Barr. I was not expecting to write on immigration again so soon (see “Immigration – Governing with Nods and Winks”, 5/10/19), but there are aspects of this case so cringe-worthy as to require mention. The good news is that a terrible argument lost. The bad news is that such an argument was made and by whom.
Background – the Flores Agreement
A 1987 class action lawsuit on behalf of minors detained by immigration authorities was litigated for years before being settled in 1997. The consent order settling the case became known as the Flores Agreement, or simply “the Agreement”. It required immigration agencies to hold minors in their custody “in facilities that are safe and sanitary.” Such facilities must also be “consistent with…concern for the particular vulnerability of minors.”
The Agreement gets into some specifics: “Facilities will provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect minors from others, and contact with family members who were arrested with the minor.” There was no dispute that the Agreement remains in effect as a matter of law to this day.
This Case
In May 2016, the plaintiffs filed a motion to enforce the Agreement. They contended that the government continued to violate it by, among other things, detaining class members – that is, minors – in unsafe and unsanitary conditions.
In June 2017, Judge Gee of the U.S. District Court granted plaintiffs’ motion to enforce. The court found that the government was violating the Agreement’s express requirements to provide adequate access to appropriate food and water and “adequate temperature controls at a reasonable and comfortable range.”
The court further found that although the Agreement “makes no mention of the words ‘soap,’ ‘towels,’ ‘showers,’ ‘dry clothing,’ or ‘toothbrushes,’ . . . these hygiene products fall within the rubric of the Agreement’s language requiring ‘safe and sanitary’ conditions.”
Certain Border Patrol stations, the district court found, were violating paragraph 12A of the Agreement by failing to provide such sanitary necessities. Other facilities were depriving the children of adequate sleep. The government appealed to the U.S. Court of Appeals for the Ninth Circuit.
Jurisdictional Quirk
Bear with me here, because it’s worth understanding this point. By federal statute, the Circuit Court of appeals has jurisdiction in this type of case over district court orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”
Since everyone agreed that Judge Gee did not grant, continue, refuse or dissolve the Agreement, the Court of Appeals can review her ruling only if it “modified” the Agreement. The Ninth Circuit dismissed the appeal because the district court did not modify (change) the Agreement in its ruling, but simply interpreted it. Here’s why this matters.
The Crux
The Ninth Circuit’s recounting of the government’s position is as follows:
Specifically, the government contends that, by interpreting paragraph 12A in the body of its opinion to require that Border Patrol stations provide the most basic human necessities—accommodations that allow for adequate sleep, essential hygiene items, and adequate, clean food and water—the district court modified the Agreement’s requirement that minors be held in “safe and sanitary” conditions that comport with the “special concern for the particular vulnerability of minors.” We emphatically disagree.
The government first suggests that the key phrases in paragraph 12A—“safe and sanitary” and “special concern for the particular vulnerability of minors”—add nothing to the enumerated specific requirements found in the next sentence of the Agreement (requiring “access to toilets and sinks, drinking water and food as appropriate,” and so on). The government’s brief maintains that as the enumerated conditions said nothing about, for example, allowing the children in government custody to sleep or to wash themselves with soap, reading the “safe and sanitary” requirement to cover those requirements is a modification of the Agreement rather than an interpretation of it.
Wait, What?
You read that correctly. The U.S. Department of Justice argued before a three-judge panel of the U.S. Court of Appeals that requiring a bar of soap, a toothbrush, and food that is edible “modified” a decades-old Agreement requiring safe and sanitary conditions.
That’s after arguing that “safe and sanitary” adds nothing to the requirements for toilets, sinks, water and food. Therefore, the toilets, sinks, water and food need not be safe and sanitary, even though the Agreement says they must.
The Circuit Court’s Decision
The Circuit Court goes on to demolish the argument as an untenable approach to contractual interpretation. It also dismisses the notion that the phrase “safe and sanitary” is so vague that either it cannot be enforced, or it leaves “the specifics of compliance [with the Agreement’s paragraph 12A] up to” the government. From the opinion:
The district court’s interpretation of the Agreement is consistent with the ordinary meaning of the language of paragraph 12A, which does provide a standard sufficiently clear to be enforced. The court found, among other things, that minors (1) were “not receiving hot, edible, or a sufficient number of meals during a given day,” (2) “had no adequate access to clean drinking water,” (3) experienced “unsanitary conditions with respect to the holding cells and bathroom facilities,” (4) lacked “access to clean bedding, and access to hygiene products (i.e., toothbrushes, soap, towels),” and (5) endured “sleep deprivation” as a result of “cold temperatures, overcrowding, lack of proper bedding (i.e., blankets, mats), [and] constant lighting.”
After so finding, the district court concluded that these conditions fall short of paragraph 12A’s requirement that facilities be “safe and sanitary,” especially given “the particular vulnerability of minors.” Those determinations reflect a commonsense understanding of what the quoted language requires… The district court properly construed the Agreement as requiring such conditions rather than allowing the government to decide whether to provide them.
There are other issues in the case, also decided against the government. The opinion is available at http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/15/17-56297.pdf.
An Aside
I am not going after the individual attorney from the Department of Justice who (apparently drew the short straw and) found herself handling the oral argument in this case. The lawyers standing before judges, or justices of the Supreme Court, are seldom the ones deciding which cases to appeal, and on what grounds.
Conclusion (at least for now)
Really, I ask you to pause for a moment to absorb this. A lawyer for the United States of America asked a federal court of appeals to rule that while the Flores Agreement requires detained children to be provided “drinking water and food as appropriate”, it says nothing about potable water or edible food.
This should be the stuff of satire, but I am making none of this up. Most of this post comes straight from the court’s recent opinion. A recording of the oral argument went “viral” – presumably for the equal parts incredulity and dismay with which the judges received such arguments. Consider whether the position taken is worse legally or morally.
Yet, those arguing there are no issues or problems at our borders are clearly wrong as well. Apparently, thousands of people daily find arrest in America preferable to what they face at home. The logistical issues, alone, of dealing with such numbers of people are daunting and must be addressed. According to a July 29 Time Magazine article, 363,300 people from Guatemala, El Salvador and Honduras have been arrested at borders since October. Assuming the number correct and including every day of October 2018, that’s 12,030 people per day for ten months.
Saying we should simply open our borders is almost as silly as saying that our country is “full”. Or that immigrants are a bunch of dangerous criminals. Or that we don’t want hard, honest work done inexpensively and well, when clearly we do. You know the drill.
So, again, we see us paying the price for governing with intellectual dishonesty in this area for many years. In this case, the price is the spectacle of our government taking foolish and despicable positions in formal litigation. Not to mention the suffering at the borders.
Are there folks we need to send home? Yep. Start with the elected members of the executive and legislative branches of our government who refuse to do their jobs. You know, the ones who are too busy pandering, grandstanding, and fear-mongering. Again, we must get adults in the room to hammer out immigration law and policy we can believe in enough to enforce.
Hot off the Press
As I publish this, I understand that the Trump Administration, predictably perhaps, has announced plans today to end the Flores Agreement. Without knowing the details, I’d like to be optimistic and think that’s to replace it with something better. It seems wise to gird oneself for the next outrage, however. Also, I’ll be interested to see how the executive branch would “end” a court order settling a federal class action lawsuit. Presumably there will be new rule-making, with litigation quickly to follow. [Sigh]
Ken Bossong
© 2019 Kenneth J. Bossong