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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12007
________________________
D.C. Docket No. 1:12-cv-01352-ODE
JACQUELINE STEVENS,
Plaintiff - Appellant,
versus
U.S. ATTORNEY GENERAL,
JUAN OSUNA,
Director, Executive Office of Immigration Review,
in his official capacity,
FRAN MOONEY,
Assistant Director for the Office of Management Programs,
Executive Office of Immigration Review
in her individual and official capacity,
MARYBETH KELLER,
Assistant Chief Immigration Judge,
Executive Office of Immigration Review,
in her individual and official capacity,
GARY SMITH,
Assistant Chief Immigration Judge,
Executive Office of Immigration Review,
in his individual and official capacity, et al.,
Defendants - Appellees,
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INSPECTOR DOE,
Federal Protective Services, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 15, 2017)
Before JULIE CARNES and EDMONDSON, Circuit Judges, and WILLIAMS, *
District Judge.
EDMONDSON, Circuit Judge:
Plaintiff Jacqueline Stevens appeals the dismissal of claims she filed
pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 91 S. Ct. 1999 (1971). Briefly stated, Plaintiff contends that her
constitutional rights were violated when she was denied access to hearings at the
Atlanta Immigration Court. Plaintiff seeks monetary damages, as well as
injunctive and declaratory relief. We affirm the district court’s decision.
*
Honorable Kathleen M. Williams, United States District Judge for the Southern District of
Florida, sitting by designation.
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I. BACKGROUND
Plaintiff is a journalist and a university professor of political science. Her
area of study focuses on the due process rights of those persons involved in
deportation proceedings and on the conduct of Immigration Judges within the
Executive Office of Immigration Review (“EOIR”). 1 Before the occurrences
underlying this civil action, Plaintiff had published criticisms of deportation
proceedings in general and of Immigration Judge William Cassidy’s performance
in particular.
This civil action arises from two dates on which Plaintiff sought to attend
immigration hearings at the Atlanta Immigration Court. 2 On 7 October 2009,
1
The EOIR is an agency that adjudicates immigration cases within the Department of Justice.
Under authority delegated by the Attorney General, the EOIR is responsible for the interpretation
and administration of federal immigration laws, and for conducting immigration court
proceedings, appellate reviews, and administrative hearings. THE UNITED STATES DEPARTMENT
OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, https://www.justice.gov/eoir/about-
office (last visited 14 December 2017).
2
Plaintiff contends on appeal that the district court erred by failing to consider (that is, failing to
write about) Judge Cassidy’s liability for cancelling hearings on 22 June 2009, 12-15 January
2010, and 15 April 2010. This argument is unpersuasive for several reasons.
First, about the supposed cancellation of hearings on these dates, Plaintiff’s amended complaint
contains only one allegation: “Plaintiff was unable to observe deportation/removal hearings at
the Immigration Court on June 22, 2009, January 12-15, 2010, and April 15, 2010, because upon
information and belief, hearings were cancelled when it was determined that Plaintiff would
likely be in attendance.” Plaintiff alleges no facts supporting her claim that the hearings were
cancelled wrongfully or that Judge Cassidy (or any other Defendant) was responsible for or
otherwise involved in cancelling the hearings. Nowhere else in Plaintiff’s amended complaint
does she elaborate on the alleged supposedly improper cancellation of scheduled hearings:
Plaintiff’s counts for constitutional violations stem only from her alleged “wrongful exclusion”
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Plaintiff wished to attend three hearings listed on Judge Cassidy’s afternoon
docket. One of the hearings was rescheduled at the request of respondent’s lawyer.
Judge Cassidy then closed to the public the remaining two hearings. Because
Plaintiff was no party, family member, or attorney-of-record for the respondents in
those cases, she was not permitted to observe the hearings.
On 19 April 2010, Plaintiff returned to the Atlanta Immigration Court and
did observe morning hearings held before Judge Cassidy. The docket listed one
additional hearing scheduled before Judge Cassidy for that afternoon. Judge
Cassidy closed that hearing to the public and, accordingly, asked Plaintiff to leave
the courtroom. In her complaint, Plaintiff alleged she was asked to leave the
courtroom “shortly after 3 p.m.” Plaintiff asked Judge Cassidy for a “legal reason”
from immigration hearings that were held and “forcible removal” from the court building. For
the cancellation of hearings, Plaintiff’s amended complaint, thus, contains no “short and plain
statement” showing that she is entitled to relief, as required by Fed. R. Civ. P. 8(a)(2).
Second, Plaintiff first mentioned the cancellation of hearings in June 2009, January 2010, and
April 2010 in her amended complaint, which was filed against Judge Cassidy in his official
capacity only. Thus, even if Plaintiff’s amended complaint could be construed as asserting a
claim against Judge Cassidy for liability for the cancellation of hearings on those days, the claim
is against Judge Cassidy only in his official capacity. The district court determined -- and the
parties agreed -- that Plaintiff’s damage claims against Judge Cassidy in his official capacity are
barred by sovereign immunity.
Third, a district court commits no reversible error merely because the opinion explaining its
order fails to address expressly one of the claims in a multi-count civil complaint. See Am.
United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1069-70 (11th Cir. 2007) (affirming the district
court’s dismissal of a claim despite the district court’s failure to address the claim in its order of
dismissal). After all, we can affirm a district court’s ruling “for any reason supported by the
record, even if not relied on by the district court.” Cochran v. United States Health Care Fin.
Admin., 291 F.3d 775, 778 n.3 (11th Cir. 2002).
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for his request and referred him to 8 C.F.R. § 1003.27, which deals with the
public’s access to immigration hearings. When Judge Cassidy repeated his request
that Plaintiff leave his courtroom, Plaintiff asked whether the respondent had
requested a closed hearing. Judge Cassidy replied “no” and that the respondent
was proceeding pro se. Judge Cassidy then told Plaintiff that he could order
security guards to remove her. In response, Plaintiff asked Judge Cassidy again for
“a legal reason for closing the hearing.” Judge Cassidy said “no,” told Plaintiff to
remain in the courtroom, and that he would return with the pertinent regulation.
Judge Cassidy then left the courtroom. Plaintiff alleges her verbal exchange with
Judge Cassidy lasted about 90 seconds and occurred in “normal conversational
tones.” Plaintiff -- concerned that Judge Cassidy had returned to his chambers to
order guards to remove her physically from the courtroom -- told Judge Cassidy’s
assistant that she would be waiting in the Immigration Court lobby in the event the
respondent requested her presence as an observer.
Plaintiff moved to the Immigration Court lobby, where she complained to
“an EOIR court staff member about Defendant Cassidy’s unlawful actions” in
closing the courtroom. Plaintiff then began documenting the incident in her
notebook. Between 3:15 and 3:20 p.m., three building security guards 3 entered the
3
The building security guards were employees of Paragon Systems, Inc., a private company
contracted to provide security services for the Atlanta Immigration Court. Although Plaintiff
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lobby area. One of the officers asked Plaintiff to leave the building; and after a
brief verbal exchange, the guards escorted Plaintiff outside. The parties dispute
whether Plaintiff was removed from the building on Judge Cassidy’s orders.
According to Plaintiff, she overheard one guard tell another guard that Judge
Cassidy wanted her out of the building.4
Plaintiff filed this civil action in district court. In pertinent part, Plaintiff
purported to raise these claims: 5 (1) a Bivens claim for damages against Judge
Cassidy in his individual capacity; (2) a claim for injunctive relief against all
defendants, including Judge Cassidy; (3) Bivens claims for damages against Fran
Mooney, Assistant Director of the EOIR’s Office of Management Programs, in her
individual capacity; and (4) a claim for declaratory judgment.
The district court dismissed Plaintiff’s Bivens claim against Judge Cassidy
in his individual capacity on grounds that Judge Cassidy was entitled to absolute
judicial immunity. The district court also concluded that Judge Cassidy was
named as defendants the three Paragon guards and a Paragon supervisor, those defendants are
not parties to this appeal.
4
For purposes of this appeal and the sake of argument, we will make two assumptions about the
record (1) that the evidence in the record is sufficient to support a factual finding that Judge
Cassidy directed the security guards to remove Plaintiff from the court building and (2) that
Judge Cassidy in fact gave such a direction.
5
In her complaint, Plaintiff sought to assert 8 counts against 13 different defendants; all claims
were disposed of in a series of orders issued by the district court. On appeal, Plaintiff challenges
only the district court’s dismissal of the claims identified here: the remaining, once-asserted
claims are not before us on appeal.
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entitled to judicial immunity from Plaintiff’s claim for injunctive relief. About
Plaintiff’s claims for injunctive relief against the remaining defendants, the district
court dismissed those claims for lack of standing. The district court also dismissed
for failure to state a claim Plaintiff’s Bivens claims against Mooney. The district
court then declined to exercise jurisdiction over Plaintiff’s claim for declaratory
relief.
II. STANDARD OF REVIEW
Whether an official is entitled to absolute immunity is a question of law that
we review de novo. Mikko v. City of Atlanta, 857 F.3d 1136, 1142 (11th Cir.
2017). We also review de novo the district court’s dismissal for failure to state a
claim, accepting as true the factual allegations in the complaint and construing
them in the light most favorable to the plaintiff. Butler v. Sheriff of Palm Beach
Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012). We review a district court’s decision
not to exercise jurisdiction over a claim for declaratory judgment under an abuse-
of-discretion standard. Wilton v. Seven Falls Co., 515 U.S. 277, 289-90 (1995).
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III. DISCUSSION
A. Absolute Judicial Immunity
1. Immigration Judges
“Few doctrines were more solidly established at common law than the
immunity of judges from liability for damages for acts committed within their
judicial jurisdiction.” Cleavinger v. Saxner, 474 U.S. 193, 199 (1985). The
immunity applies even when the judge’s conduct “was in error, was done
maliciously, or was in excess of his authority . . . .” Stump v. Sparkman, 435 U.S.
349, 356-57 (1978).
This absolute immunity is intended “for the benefit of the public, whose
interest it is that the judges should be at liberty to exercise their functions with
independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547,
554 (1967). A judge has a duty to decide all cases brought before him, including
those cases that are controversial and that may “arouse the most intense feelings in
the litigants.” Id. A judge’s “errors may be corrected on appeal, but he should not
have to fear that unsatisfied litigants may hound him with litigation charging
malice or corruption. Imposing such a burden on judges would contribute not to
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principled and fearless decision-making but to intimidation.” Id.; see also
Forrester v. White, 484 U.S. 219, 226-27 (1988) (“If judges were personally liable
for erroneous decisions, the resulting avalanche of suits, most of them frivolous but
vexatious, would provide powerful incentives for judges to avoid rendering
decisions likely to provoke such suits. The resulting timidity would be hard to
detect or control, and it would manifestly detract from independent and impartial
adjudication.” (citation omitted)).
Absolute immunity is not reserved for Article III judges only. “Absolute
immunity flows not from rank or title or ‘location within the Government,’ but
from the nature of the responsibilities of the individual official.” Cleavinger, 474
U.S. at 201 (citation omitted). The Supreme Court has thus applied a “functional
approach” in determining whether an official is entitled to absolute immunity. Id.;
Butz v. Economou, 438 U.S. 478, 512-13 (1978). Factors to consider in deciding
whether to apply absolute immunity to a particular person include these elements:
(a) the need to assure that the individual can perform his functions
without harassment or intimidation; (b) the presence of safeguards
that reduce the need for private damages actions as a means of
controlling unconstitutional conduct; (c) insulation from political
influence; (d) the importance of precedent; (e) the adversary nature of
the process; and (f) the correctability of error on appeal.
Cleavinger, 474 U.S. at 202 (citing Butz, 438 U.S. at 512).
In the light of these considerations -- as well as the public policy underlying
the doctrine -- absolute immunity has been extended to state court judges, Pierson,
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386 U.S. 547, administrative law judges and federal hearing examiners, Butz, 438
U.S. at 514, federal and state prosecutors, Imbler v. Pachtman, 424 U.S. 409
(1976); Yaselli v. Goff, 275 U.S. 503 (1927), aff’g 12 F.2d 396 (2d Cir. 1926),
grand jurors, see Imbler, 424 U.S. at 423 n.20, and to witnesses testifying in
judicial proceedings, Briscoe v. Lahue, 460 U.S. 325 (1983).
In considering whether the doctrine of absolute judicial immunity extends
properly to Immigration Judges, we are guided by the Supreme Court’s decisions
in Butz and in Cleavinger. We first recognize that -- as with judges of general
jurisdiction and with administrative law judges -- Immigration Judges are tasked
with resolving cases that “are every bit as fractious as those which come to court.”
See Butz, 438 U.S. at 513. That immigration proceedings are adversarial in nature
and often involve controversial issues of extreme significance to those persons
involved underscores the importance of preserving the Immigration Judge’s
independence. Cf. Stump, 435 U.S. at 364 (“The fact that the issue before the
judge is a controversial one is all the more reason that he should be able to act
without fear of suit.”).
We also see an Immigration Judge’s role in immigration proceedings as
sufficiently “functionally comparable” to that of a judge. Immigration Judges
possess many of the same powers as a trial judge. These powers include the power
to subpoena witnesses and evidence, to administer oaths, to receive and rule on
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evidence, to question parties and witnesses, to issue sanctions, to make credibility
determinations, and to render decisions. See 8 U.S.C. § 1229a(b)(1), (c); 8 C.F.R.
§§ 1003.10(b), 1003.35.
In addition, the structure of immigration proceedings contains many
safeguards -- similar (although not always identical) to those discussed in Butz in
the context of administrative hearings 6 -- that tend to reduce the risk of unchecked
unconstitutional conduct by Immigration Judges. Immigration Judges are
professional hearing officers. In deciding cases before them, Immigration Judges
are required to exercise “independent judgment and discretion” and to resolve
issues in an “impartial manner.” 8 C.F.R. § 1003.10(a), (b). Immigration Judges
are also bound both by agency precedent, 8 C.F.R. § 1003.1(g), and by precedent
established by the federal appellate courts. Parties to an immigration hearing may
be represented by counsel, 8 C.F.R. § 1003.16, may present documentary evidence
and witness testimony, 8 C.F.R. §§ 1003.31, 1003.34, 1003.35, and are entitled to
written notice of the Immigration Judge’s decision which “shall” include reasons
for the decision, 8 C.F.R. §§ 1003.37, 1240.12(a), 1240.13(a). Parties may also
seek review of the Immigration Judge’s decision by the Board of Immigration
6
The administrative hearing process considered by the Supreme Court in Butz was governed by
the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; an Act which is not applicable to the
immigration proceedings considered in this appeal.
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Appeals (“BIA”) and, if necessary, by the federal courts. See 8 U.S.C. § 1252;
8 C.F.R. § 1003.38. 7
That immigration proceedings do not contain safeguards identical to those
safeguards identified by the Supreme Court in Butz is not outcome determinative
here. The Supreme Court’s opinion in Cleavinger demonstrates that Butz does not
wholly define the limits of judicial-immunity availability. In determining whether
members of a prison discipline committee were entitled to absolute immunity, the
Supreme Court compared the procedural safeguards available under the prison’s
disciplinary policy to those discussed in Butz. Cleavinger, 474 U.S. at 203-06.
Although the Supreme Court concluded ultimately that the prison policy’s
procedural safeguards were insufficient to warrant absolute immunity, no
individual safeguard or combination -- or lack thereof -- was strictly determinative.
See id.
That having been said, we find it instructive that many of the safeguards
pointed out as absent in Cleavinger are present here. For instance, the Supreme
Court in Cleavinger cared about the lack of these procedural safeguards: (1) that
prisoners subject to the prison’s disciplinary policy were “afforded neither a lawyer
nor an independent nonstaff representative;” (2) that prisoners had “no right to
7
In addition to the existence of procedural safeguards governing immigration proceedings, the
Office of the Chief Immigration Judge also provides expressly a process by which persons --
including non-parties -- can complain about an Immigration Judge’s conduct. See THE UNITED
STATES DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW,
https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/IJComplaintProcess.pdf.
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compel the attendance of witnesses or to cross-examine;” (3) that prisoners had
“no right to discovery;” (4) that “[t]here was no cognizable burden of proof;”
(5) that “[n]o verbatim transcript was afforded;” and (6) that “[i]nformation
presented often was hearsay or self-serving.” Id. at 206.
Aliens in deportation proceedings, however, have a right to representation
by a lawyer, the right to examine evidence against them, and the right to cross-
examine witnesses. 8 U.S.C. § 1229a(b)(4)(A), (B). The immigration court is also
required to maintain a complete record -- including a “verbatim” recording -- of all
testimony and evidence presented at the hearing. 8 U.S.C. § 1229a(b)(4)(C);
8 C.F.R. § 1240.9. In addition, immigration proceedings are governed by a
statutorily-proscribed burden of proof. 8 U.S.C. § 1229a(c).
The Supreme Court in Cleavinger also expressed concern that the members
of the disciplinary committee lacked independence. 474 U.S. at 203-04, 206. The
Supreme Court specially noticed that the committee members were “not
professional hearing officers.” Id. at 204. And, because the committee members
remained employees of the Bureau of Prisons, “they [were] direct subordinates of
the warden who reviews their decision.” Id. The committee members were often
responsible for resolving disputes -- including making credibility determinations --
between the inmate over whom they sat in judgment and the fellow employee who
had lodged the disciplinary charge. Id. The committee members were “thus under
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obvious pressure to resolve a disciplinary dispute in favor of the institution and
their fellow employee.” Id. (“It is the old situational problem of the relationship
between the keeper and the kept, a relationship that hardly is conducive to a truly
adjudicative performance.”).
Immigration Judges, meanwhile, are under the supervision and direction of
the Chief Immigration Judge, who has “no authority to direct the result of an
adjudication assigned to another immigration judge.” 8 C.F.R. § 1003.9(b), (c).
And an Immigration Judge’s decisions are reviewed on appeal by the BIA: a
division of the EOIR separate and apart from the Office of the Chief Immigration
Judge and with no direct supervisory authority over Immigration Judges. See 8
C.F.R. § 1003.1. Immigration Judges are also independent of the agency
responsible for enforcing the federal immigration laws: the United States
Citizenship and Immigration Services. See THE UNITED STATES DEPARTMENT OF
JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW,
https://www.justice.gov/eoir/about-office (last visited 14 December 2017). Given
these structural safeguards, immigration proceedings do not involve the same
potential for institutional bias as recognized in Cleavinger: no “relationship
between the keeper and the kept.”
Considering both the adjudicatory role that Immigration Judges play within
the immigration-hearing process and the existence of what we view -- in the light
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of the Supreme Court’s guidance -- as sufficient pertinent safeguards, we are
persuaded that Immigration Judges are judges entitled to absolute immunity for
their judicial acts, without regard to the motive with which those acts are allegedly
performed. And we underline that absolute immunity is not merely a defense to
liability: it is an immunity from suit and from “the other burdens of litigation” that
“is effectively lost if a case is erroneously permitted to go to trial.” Cf. Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985).
2. Judge Cassidy’s Entitlement to Absolute Immunity
Having determined that the doctrine of absolute judicial immunity applies to
Immigration Judges, we next decide whether Judge Cassidy’s complained-of
conduct -- excluding Plaintiff from both a courtroom and from the courthouse --
falls within the scope of that immunity. A judge acting within his judicial capacity
is unentitled to absolute judicial immunity -- and, thus, is subject to suit and to civil
liability -- only when he acts in the “clear absence of all jurisdiction.” See Stump,
435 U.S. at 356-57. Here, we must determine whether Judge Cassidy acted in his
judicial capacity and, if so, whether he acted in the “clear absence of all
jurisdiction.”
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In determining whether a judge’s act is “judicial” for purposes of immunity,
we consider (1) whether the act is one normally performed by judges, and
(2) whether the complaining party was dealing with the judge in his judicial
capacity. Id. at 362.
About the first element, the Supreme Court has instructed that we look only
to “the nature and function of the act, not the act itself.” Mireles v. Waco, 502
U.S. 9, 13 (1991) (quotations omitted); see also Forrester v. White, 484 U.S. 219,
229 (1988) (the Court’s immunity analysis is informed by “the nature of the
function performed”). If we were to examine, instead, the factual details of the
particular act being challenged, “then any mistake of a judge in excess of his
authority would become a ‘nonjudicial’ act, because an improper or erroneous act
cannot be said to be normally performed by a judge.” Mireles, 502 U.S. at 12
(determining that the pertinent “act” was “the function of directing police officers
to bring counsel in a pending case before the court”: not “a judge’s direction to
police officers to carry out a judicial order with excessive force”). “If judicial
immunity means anything, it means that a judge will not be deprived of immunity
because the action he took was in error or was in excess of his authority.” Id. at
12-13 (quotations and alterations omitted).
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Judge Cassidy’s decisions to close particular immigration hearings to the
public -- and to exclude Plaintiff from the courtroom -- were decisions made in the
direct exercise of the judicial function.
If Judge Cassidy ordered Plaintiff removed from the court building, he was
also engaged in performing a judicial function. Judges have an obligation to
maintain control over the courthouse and over the conduct of persons in the
courthouse; the issuance of an order removing persons from the courthouse in the
interest of maintaining such control is an ordinary function performed by judges:
for example, 8 where a person might not be complying with a court order or might
be impeding the judicial proceeding. 9 Cf. Sheppard v. Maxwell, 384 U.S. 333, 358
(1966) (“the courtroom and courthouse premises are subject to the control of the
court”); United States v. Smith, 426 F.3d 567, 569, 576 (2d Cir. 2005) (stressing
8
These circumstances are not necessarily the only circumstances in which public access (or
access by a particular person) might be denied to court proceedings or to a courthouse – in the
exercise of the judicial function by a judge acting in his judicial capacity.
9
We reject the position that a judge’s ordering a person removed from a courthouse constitutes
an administrative, legislative, or executive (apart from a judicial) function. A judge’s authority
to control his courtroom -- and, necessarily, the environment surrounding his courtroom -- stems
directly from his duties as a judge. For background, see Forrester v. White, 484 U.S. 219 (1988)
(discussing the distinction between judicial acts and a judge’s administrative, legislative, and
executive functions). See also Barrett v. Harrington, 130 F.3d 246, 256 n.11 (6th Cir. 1997) (“a
judge acts in a judicial capacity when exercising control of the judge’s courtroom.” (citing
Sheppard v. Maxwell, 384 U.S. 333 (1966))); Gregory v. Thompson, 500 F.2d 59, 64 (9th Cir.
1974) (denying absolute immunity to a judge who personally used physical force to remove an
observer from the courtroom -- an act performed “normally” by a sheriff or a bailiff -- but
explaining that judges have an “obligation” to “protect the sanctity and dignity of courtroom
proceedings” and that the judge should have, instead, summoned a sheriff to escort the observer
from the courtroom).
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the importance that the judiciary -- not the Marshals Service -- play the primary
role in controlling access to federal buildings containing courtrooms); United
States v. Ulan, 421 F.2d 787, 788 (2d Cir. 1970) (appeal from a conviction for
assaulting and interfering with a U.S. Deputy Marshal, which arose after a district
court judge ordered the Marshals to clear the courtroom and to escort all
demonstrators outside the courthouse); Richman v. Sheahan, 512 F.3d 876, 880
(7th Cir. 2008) (a state court judge ordered the son of a woman contesting a traffic
ticket to leave the court building and, when he refused, ordered court security
officers to arrest the man for contempt); United States v. Brugnara, 856 F.3d 1198,
1205 (9th Cir. 2017) (district court judge ordered a belligerent juror removed from
the building); State v. Bush, 714 P.2d 818, 823 (Ariz. 1986) (“the trial judge has
the primary responsibility for controlling the conduct of spectators in the
courtroom and the courthouse” and, if necessary, “may clear the courtroom and the
courthouse of those who may be intimidating witnesses or other court
personnel.”). 10
Moreover, Judge Cassidy’s supposed order to remove Plaintiff from the
building “arose directly and immediately out of” Judge Cassidy’s dealings with
10
These cases involve no claim of absolute judicial immunity. Thus, that the particular facts of
these cases may differ from the facts involved in this appeal does not change our immunity
analysis. We cite these cases only for the proposition that judges have an obligation to maintain
control over their courtroom and courthouse: to illustrate that the act of ordering a person --
including a member of the press, demonstrator, or other observer -- removed from a court
building is one performed “normally” by judges.
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Plaintiff in his judicial capacity: directing Plaintiff only moments earlier to leave
his courtroom after closing to the public the immigration hearing. 11 See Stump,
435 U.S. at 361 (a factor tending to show that a judge acted within his judicial
capacity is if “the confrontation arose directly and immediately out of a visit to the
judge in his official capacity” (citing with approval McAlester v. Brown, 469 F.2d
1280, 1282 (5th Cir. 1972))). We stress that -- for purposes of our immunity
analysis -- we need not decide (and do not decide) whether Judge Cassidy’s
decision, in this instance, to have Plaintiff removed from the court building was
without error: that Judge Cassidy, on the pertinent afternoon, was acting within the
scope of his judicial capacity when he dealt with Plaintiff is adequate.
Next, we reject Plaintiff’s contention that Judge Cassidy acted in the “clear
absence of all jurisdiction.” The parties do not dispute that Immigration Judges
11
Construing the record in Plaintiff’s favor, we cannot conclude that Judge Cassidy’s supposed
order to have Plaintiff removed from the court building was separate and distinct, with no
overlap, from his request that Plaintiff leave his courtroom. The two events were separated in
time -- at most -- by about fifteen minutes. Furthermore, when Judge Cassidy returned to his
chambers and supposedly ordered guards to remove Plaintiff from the building, he had just
directed Plaintiff twice to leave the courtroom and told Plaintiff that he could order guards to
remove her. Although Plaintiff denies that she refused flatly to leave the courtroom, she does not
dispute that she questioned the judge’s authority there or that she continued to remain in the
courtroom -- despite Judge Cassidy’s requests for her to leave and warning he would summon
guards to remove her -- until after Judge Cassidy had left the courtroom himself and he appeared
to Plaintiff to be calling security. Upon her leaving the courtroom and entering the Immigration
Court lobby, Plaintiff continued to complain to a court staff member about the legality of Judge
Cassidy’s decision to close the hearing. She was still in the process of documenting the incident
when guards arrived to escort her out of the building. Given Plaintiff’s story on how the events
progressed, we see no clear-cut important break in the train between Judge Cassidy’s two
supposed orders: the pertinent events of this single-afternoon’s occurrence are -- temporally and
logically -- linked to Plaintiff’s words and conduct in front of Judge Cassidy and his order
closing certain courtroom proceedings to the public.
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have express authority to order a hearing closed to the public under certain
circumstances, including “for the purpose of protecting witnesses, parties, or the
public interest.” See 8 C.F.R. § 1003.27. Again, we need not decide (and do not
decide) today whether Judge Cassidy’s decision, in this instance, to close the
hearings in the pertinent cases was correct: we decide that Immigration Judges
possess the authority to close hearings. See Dykes v. Hosemann, 776 F.2d 942,
947 (11th Cir. 1985) (rejecting the argument that a judge acted in the “clear
absence of all jurisdiction” when he issued an erroneous ruling: that a judge’s
ruling may have been in error “does not affect the fact that it was within his power
to make that determination.”).
In addition, even if Judge Cassidy lacked express statutory or regulatory
authority to order Plaintiff removed from the court building, Judge Cassidy acted
in no “clear absence of all jurisdiction” in doing so. Immigration Judges do have
express authority to “regulate the course” of removal hearings. See 8 C.F.R.
§§ 1240.1(c), 1240.9. This authority triggers obligation. Based on this authority,
the EOIR has recognized “that at times an Immigration Judge must be firm and
decisive to maintain courtroom control.” See THE UNITED STATES DEPARTMENT OF
JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, Ethics and Professionalism
Guide for Immigration Judges, at 3, https://www.justice.gov/sites/default/files/eoir/
legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf.
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We decline to say -- as a matter of law -- that an Immigration Judge’s
authority and obligation to maintain control over his courtroom vanishes at the
threshold of the courtroom door. We oppose such an impractical, sharp-edged
rule. Instead, an Immigration Judge’s express power over his courtroom implies
necessarily the power to remove a person from the courtroom (and court building):
for example, when a person might be perceived to threaten the integrity of judicial
proceedings. The law has long accepted that, “[t]he grantor of anything to another,
grants that also without which the thing granted would be useless.” S.S. Peloubet,
A Collection of Legal Maxims in Law and Equity 43 (Rothman 1985) (1884)
(“Cuicunque aliquis quid concedit, concedere videtur et id sine quo res ipsa esse
non potuit.”). A judge’s authority to maintain control of his courtroom extends to
the court building. See Sheppard, 384 U.S. at 358 (a case in which the Supreme
Court discussed a trial court’s “duty” and “responsibility” to control news
gatherers stationed inside the courtroom and throughout the court building).
When judges believe that their immunity protection from private lawsuits
can evaporate in novel situations or in heated controversies calling for a judge to
act with discretion, the very reason for immunity is undercut: judges begin to think
not only of what the law demands, but what is easiest and best for the judge,
personally, and for the family finances -- and judicial independence is jeopardized.
For immunity to be useful to protect judges from intimidation by threatened,
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personally-burdensome lawsuits connected to the judge’s acts of discretion, the
Supreme Court has told us that “the scope of a judge’s jurisdiction must be
construed broadly”: a judge is not deprived of immunity merely because he acts in
excess of his authority. See Stump, 435 U.S. at 356-57. So -- even if we are
mistaken about the exact perimeter of an Immigration Judge’s authority -- we
conclude Judge Cassidy did not act in the “clear absence of all jurisdiction” in
directing that Plaintiff be removed from the court building; given the assumed state
of affairs on the afternoon of 19 April 2010, enough connection to judicial
proceedings was present.12
12
Plaintiff contends that -- because the building security guards who escorted her from the court
building were no employees of the EOIR or the Department of Justice -- Judge Cassidy acted in
the “clear absence of all jurisdiction” when he supposedly ordered the security guards to remove
Plaintiff from the building.
The question of whether the security guards were obliged by law to carry out a supposed
direction from Judge Cassidy is a different question than whether Judge Cassidy gave the
direction while acting in his judicial capacity or in the “clear absence of all jurisdiction” for
purposes of immunity. For example, we suspect that a judge could correctly call on private-
citizen passersby to assist in maintaining peace and order around the courtroom in some
circumstances. Whether these private citizens would be obliged to do so might be questionable.
But that the judge would be acting in a judicial capacity and not clearly in the absence of all
jurisdiction would not be questionable at all.
If Judge Cassidy had no official authority over the building security guards, that circumstance
does not change our decision about immunity. In Mireles v. Waco, 502 U.S. 9 (1991), the
Supreme Court concluded that a state court judge acted within his judicial capacity -- and not in
the “complete absence of all jurisdiction” -- when the judge allegedly ordered two police officers
to use excessive force to seize plaintiff (a lawyer who had failed to appear timely in the
courtroom) and to bring plaintiff forcibly into the judge’s courtroom. Among other things, the
Supreme Court rejected the assertion that the fact that the judge’s order was carried out by police
officers somehow rendered the judge’s act “executive” in character. 502 U.S. at 12-13 (likening
the judge’s direction to the police officers to a “judge’s issuance of a warrant for an executive
officer to search a home,” which the Court described as an “unquestionably” judicial act).
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Because Judge Cassidy was acting within his judicial capacity -- and not in
the “clear absence of all jurisdiction” -- we affirm the district court’s determination
that Judge Cassidy was entitled to the absolute immunity of a judge.
About injunctive relief
Absolute immunity protects Judge Cassidy both from Plaintiff’s Bivens
claim seeking money damages and also the claim for injunctive relief. See Bolin
v. Story, 225 F.3d 1234, 1240-42 (11th Cir. 2000).13
In Bolin, we decided that judicial immunity can bar claims for injunctive
relief as well as for damages. Plaintiff plays up that Bolin involved Article III
judges (including Circuit Judges) and points out that Immigration Judges are not
identically situated. We take the point. And we accept that some of the reasoning
in Bolin would not apply to the case of Immigration Judges. But we think the most
Moreover, even to the extent the judge exceeded his authority in authorizing or ratifying the
officers’ use of excessive force, the Supreme Court concluded the judge’s act -- “taken in the
very aid of the judge’s jurisdiction over a matter before him” -- was not taken in the clear
absence of jurisdiction. Id. at 13.
13
Plaintiff’s contention that she has no other remedy to review Judge Cassidy’s conduct is
inaccurate: a formal administrative process is available for filing complaints against an
Immigration Judge. Plaintiff availed herself of that remedy. That the result reached by the
process, in this instance, was not pleasing to Plaintiff does not establish the process is inadequate
as a check on possible misconduct by Immigration Judges.
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important ideas do apply, and the conclusion is on the same line: immunity bars
injunctive relief against Immigration Judges.
Litigation puts the weight of time, trouble, and expense on the attacked
judge whether the plaintiff seeks damages or an injunction at the end of the action.
To be entangled in litigation is a distraction and more. Also, if a plaintiff wins an
injunction, the judge faces the threat of more time, trouble, and expense of
defending against accusations that the judge is later in violation of the injunction
and faces the threat of contempt punishments, including incarceration maybe. We
stress that it is the threat of private parties instituting actions and proceedings (and
not just the possibility that the judge will be a losing party in those
actions/proceedings) that carries with it the chilling potential for judges as they
work.
None of this hauling judges into court by private parties seems likely to
advance the goal of fearless decision making by judges facing the obligation to
make difficult decisions in intensely contentious situations. Without strong
immunity to protect judges in their work, it would be too easy for the judges’
critics (and many judges, if they have served long, have critics) to hound the
judges, by threatened litigation, to the point of actual interference -- conscious or
unconscious -- in judicial decision making. The rule of the Bolin case covers
Immigration Judges, too.
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B. Claims Against Remaining Individual Defendants
1. Bivens Damages Claims
Plaintiff next challenges the district court’s dismissal, pursuant to Fed. R.
Civ. P. 12(b)(6), of her Bivens damages claims against Mooney. 14 In dismissing
Plaintiff’s claims, the district court determined that the allegations in Plaintiff’s
complaint were insufficient to show that Mooney had violated the Constitution.
A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive dismissal
for failure to state a claim, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quotations omitted). Instead, “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief
14
In Plaintiff’s appellate brief, the heading for this portion of her argument includes “Defendant
Mooney and the Other Federal Defendants.” Likewise, in the “Statement of the Issues” and
“Summary of the Argument” sections of Plaintiff’s brief, Plaintiff refers to both Mooney and to
“the other government defendants.” Despite these passing references, however, Plaintiff raises
no substantive argument challenging the dismissal of her Bivens damages claims against any
defendant other than Mooney. As a result, the claims against other people are not before us on
appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (“[A]n appellant abandons
a claim when he either makes only passing references to it or raises it in a perfunctory manner
without supporting arguments and authority.”).
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that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation omitted). To state a claim for relief under Bivens, “a plaintiff must
plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Id. at 676 (emphasis added).
Mooney is liable only for her own misconduct, if any. About Mooney’s
individual conduct, Plaintiff’s amended complaint alleges only that on 19 April
2010, EOIR’s public affairs officer sent an email to several EOIR employees -- one
of whom then forwarded the email to Mooney -- notifying them that Plaintiff was
at the Atlanta Immigration Court. Alleging the mere passive receipt of an email
alleges no misconduct on Mooney’s part and is insufficient to show that Mooney
violated Plaintiff’s constitutional rights.15 Plaintiff’s complaint contains only one
15
We have read Plaintiff’s complaint (as she and her lawyers had amended it) and have
construed the factual allegations in her favor, and we find no “plain statement” about how
Mooney’s individual conduct in fact caused Plaintiff’s alleged injuries in this case. For example,
Plaintiff has made no allegation that Mooney, in fact, instructed, directed, or ordered someone to
escort Plaintiff out of the court building. Nor has Plaintiff alleged that Mooney actually had
prior knowledge of Plaintiff’s wrongful removal from the building but failed to intervene. Cf.
Keating v. City of Miami, 598 F.3d 753, 763-64 (11th Cir. 2010) (allegations that supervising
officers approved orders permitting subordinate officers to discharge weapons, or directed
subordinate officers to discharge weapons, were sufficient to satisfy the pleading requirement
because the allegations established a causal connection between the supervising officers’ conduct
and plaintiffs’ alleged injuries); Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (a
causal connection between a supervisor’s conduct and the alleged constitutional violation may be
“established by facts which support an inference that the supervisor directed the subordinates to
act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from
doing so.”). We cite these examples only to explain the kinds of straightforward allegations of
fact that might satisfy the federal pleading requirement, not to suggest that particular allegations
or words are necessary to state a claim for relief. By the way, the complaint also contains no
allegation that Mooney was stationed in Atlanta, was present in Atlanta on the pertinent day, or
otherwise witnessed the complained-of conduct.
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other factual allegation specific to Mooney: identifying Mooney as EOIR’s
“Assistant Director for the Office of Management Programs” who, at all particular
times, was “responsible for security, space and facilities.” To be a supervisor is
not wrongful. In addition, Plaintiff’s unsupported conclusory assertions that
Defendants generally -- including Mooney -- “caused, participated in, condoned, or
covered up” various alleged wrongs also fail to satisfy the federal pleading
standard. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.”).
Without more “factual enhancements” about Mooney, the complaint at most
hints only at some possibility of Plaintiff’s entitlement to relief against Mooney:
no showing per Rule 8 that Plaintiff is entitled. See id.; Twombly, 550 U.S. at 557.
We affirm the district court’s Rule 12(b)(6) dismissal.16
16
On appeal, Plaintiff seeks to demonstrate Mooney’s personal involvement in the alleged
constitutional violations by relying on deposition testimony. The district court, however,
dismissed Plaintiff’s Bivens claims against Mooney pursuant to Rule 12(b)(6), without
considering material outside the complaint. In reviewing the district court’s ruling, therefore, we
also look only to factual allegations in the complaint to determine whether Plaintiff stated a
claim for relief. See Speaker v. United States HHS CDC & Prevention, 623 F.3d 1371, 1379
(11th Cir. 2010) (“In appeals of Rule 12(b)(6) dismissals, it is generally true that the scope of the
review must be limited to the four corners of the complaint.” (quotation omitted)).
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2. Claims for Injunctive Relief
In her complaint, Plaintiff sought permanent injunctive relief, enjoining the
defendants “from unlawfully excluding Plaintiff from Defendant Cassidy’s
courtroom” and “from excluding, removing or causing the exclusion or removal of
Plaintiff from any federal facility within this Court’s jurisdiction, where
deportation/removal hearings are conducted, as to which Plaintiff has a lawful right
of access.”
The district court dismissed for lack of standing Plaintiff’s claim for
injunctive relief against the individual government defendants, including Mooney.
Given the district court’s earlier determination that Plaintiff failed to allege facts
sufficient to demonstrate that each defendant had committed a constitutional
violation, the district court concluded that Plaintiff also failed to demonstrate the
requisite past or threat of future personal injury necessary to establish standing.
“[T]o establish Article III standing, a plaintiff must allege personal injury
fairly traceable to the defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.” Dep’t of Commerce v. United States House of
Representatives, 525 U.S. 316, 329 (1999). To satisfy this standing requirement, a
plaintiff seeking prospective injunctive relief must “allege facts from which it
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appears there is a substantial likelihood that he will suffer injury in the future.”
Strickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014).
In this appeal, we have already determined that Plaintiff failed to allege facts
sufficient to demonstrate a constitutional violation by Mooney in the past. Plaintiff
has also alleged no facts that would demonstrate a “substantial likelihood” that she
would suffer an injury “fairly traceable” to Mooney in the future. Plaintiff has thus
failed to establish Article III standing to seek to enjoin Mooney. See id.
To the extent that Plaintiff challenges the dismissal of her injunctive relief
claim against “Other Administrators,”17 her argument also fails. As we have
already noted, Plaintiff, on appeal, raises no meaningful challenge to the district
court’s determination that Plaintiff failed to show a past constitutional injury
caused by these other defendants. Nor did she allege facts sufficient to
demonstrate that she is likely to suffer a personal injury in the future that is either
fairly traceable to an individual defendant’s unlawful conduct or that is redressable
by the requested injunction. The district court committed no error in dismissing
Plaintiff’s injunctive relief claim for lack of standing.
17
We construe the term “Other Administrators” to mean Defendants Eric Holder, Juan Osuna,
MaryBeth Keller, Gary Smith, Cynthia Long, and Darren Eugene Summers.
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C. Declaratory Judgment
Plaintiff contends that the district court abused its discretion in declining to
grant her declaratory judgment claim.
The Declaratory Judgment Act confers on federal courts a “unique and
substantial discretion in deciding whether to declare the rights of litigants.”
Wilton, 515 U.S. at 286. “The statute’s textual commitment to discretion, and the
breadth of leeway [the Supreme Court] has always understood it to suggest,
distinguish the declaratory judgment context from other areas of the law in which
concepts of discretion surface.” Id. at 286-87.
The Declaratory Judgment Act has been characterized as an “enabling Act,”
giving the district courts discretion to grant a new form of relief. Id. at 287-88.
The Act, however, confers no “absolute right upon the litigant” and imposes no
duty on the district courts. Id. Thus -- even when a civil action satisfies federal
subject matter jurisdictional prerequisites -- a district court still maintains
discretion about “whether and when to entertain an action under the Declaratory
Judgment Act.” Id. at 282; see also Brillhart v. Excess Ins. Co. of Amer., 316 U.S.
491, 494 (1942) (“Although the District Court had jurisdiction of the suit under the
Federal Declaratory Judgments Act, it was under no compulsion to exercise that
jurisdiction.”). “In the declaratory judgment context, the normal principle that
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federal courts should adjudicate claims within their jurisdiction yields to
considerations of practicality and wise judicial administration.” Wilton, 515 U.S.
at 288. And we must be mindful that the “facts bearing on the usefulness of the
declaratory judgment remedy, and the fitness of the case for resolution, are
peculiarly within [the district court’s] grasp.” See id. at 289.
With this law in mind, we now consider the district court’s ruling in this
case. Plaintiff’s complaint included two seemingly different requests for
declaratory relief.18 On appeal, however, Plaintiff asserts only that the district
court erred in failing to consider the following relief set out in Plaintiff’s
complaint:
That [the district court] require that, where a deportation/removal
hearing is partially or completely closed to the public, the immigration
judge make specific findings on the record documenting the reasons
for closure in order that a reviewing court can determine whether
closure was lawful and whether less restrictive alternatives existed.
In response to the district court’s show-cause order, Plaintiff put the request for
declaratory judgment in a different way: “that hearings administered by the [EOIR]
may not be closed to the public unless and until the presiding immigration judge
18
In Count VII of Plaintiff’s complaint -- titled “Declaratory Judgment” -- Plaintiff sought a
declaration “that Plaintiff, the public and the press have the right, under the United States
Constitution and federal law, to attend, observe, take notes on and report on deportation/removal
hearings, to the extent authorized by the Constitution and federal law.” In the Complaint’s
“Prayer for Relief,” Plaintiff requested both the declaration set out in Count VII and the relief
asserted on appeal: a declaration that the Immigration Judge be required to make specific
findings on the record documenting the reasons for closing an immigration hearing to the public.
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makes a public on the record determination that closure is warranted under
8 C.F.R. § 1003.27.” (some emphasis added). 19
As an initial matter, in the light of the different -- and evolving -- requests
for relief sought in Plaintiff’s complaint and in Plaintiff’s response to the district
court’s show-cause order, we cannot say that the district court characterized
unreasonably Plaintiff’s request as “unclear” and “amorphous and abstract.” We
accept that a plaintiff’s failure to state definitely and consistently the declaratory
relief sought is in itself a sufficient basis to deny such discretionary relief as a
declaratory judgment.
Furthermore, the district court committed no clear error of judgment in
determining that the relief requested “would do little to provide concrete relief and
clarification to the parties in this case.” “[A] declaratory judgment may only be
issued in the case of an ‘actual controversy.’” Malowney v. Fed. Collection
Deposit Grp., 193 F.3d 1342, 1347 (11th Cir. 1999). “The controversy must be
definite and concrete, touching the legal relations of parties having adverse legal
interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937). “It must
be a real and substantial controversy admitting of specific relief through a decree
19
The import of the requests in the complaint and in the response to the show-cause order is not
the same. The timing of findings called for in the response would be a significant additional
restriction on Immigration Judges on top of the restricting requirement that Immigration Judges
must make express findings. The timing requirement and the express-findings requirement both
go beyond the duty simply to make a record that would justify closure of the courtroom.
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of a conclusive character, as distinguished from an opinion advising what the law
would be upon a hypothetical set of facts.” Id. at 241.
We stress -- and no one disputes -- that immigration hearings already are
presumptively open to the public. See 8 C.F.R. § 1003.27. 20 That the
circumstances in which an Immigration Judge may close a hearing are already
limited by regulation undercuts significantly the necessity and usefulness of
Plaintiff’s requested declaration.
Moreover, this case is not one in which immigration hearings were closed
and in which the record is obviously without facts to justify the closures. Instead,
sufficient facts exist in the record to show the basis upon which the hearings were
20
Section 1003.27 provides expressly that “[a]ll hearings, other than exclusion hearings, shall be
open to the public except” in these circumstances:
(a) Depending upon physical facilities, the Immigration Judge may place
reasonable limitations upon the number in attendance at any one time with
priority being given to the press over the general public;
(b) For the purpose of protecting witnesses, parties, or the public interest, the
Immigration Judge may limit attendance or hold a closed hearing.
(c) In any proceeding before an Immigration Judge concerning an abused alien
spouse, the hearing and the Record of Proceeding shall be closed to the public
unless the abused spouse agrees that the hearing and the Record of Proceeding
shall be open to the public. In any proceeding before an Immigration Judge
concerning an abused alien child, the hearing and the Record of Proceeding shall
be closed to the public.
(d) Proceedings before an Immigration Judge shall be closed to the public if
information subject to a protective order under § 1003.46, which has been filed
under seal pursuant to § 1003.31(d), may be considered.
8 C.F.R. § 1003.27.
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closed and from which a reviewing body could determine whether closure,
pursuant to 8 C.F.R. § 1003.27, was warranted.
The district court also was aware that, by means of declaratory relief, the
court was being asked to instruct immigration tribunals in how to discharge their
duties: a sensitive point for separation of powers among other things. Given the
circumstances, the district court could conclude properly that the nature of the
dispute, danger, and uncertainty to which the court’s attention was being called
was insufficient to demand the declaration requested. In short, Plaintiff has failed
to satisfy the difficult burden of showing that the district court abused its “unique
and substantial discretion” in deciding whether to exercise jurisdiction over
Plaintiff’s claim for declaratory judgment. In the light of the substantial deference
afforded district courts about what is useful and necessary in the declaratory
judgment context, we accept the district court’s conclusion.
AFFIRMED.
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WILLIAMS, District Judge, concurring:
Although I concur in today’s result, I write separately to address the scope of
the absolute judicial immunity standard articulated by the majority. Specifically, I
believe their analysis expands the protections of judicial immunity further than is
necessary to decide this case and beyond the boundaries set by the Supreme Court.
First, I disagree with the blanket assertion that for judicial immunity
purposes, ordering persons removed from the courthouse is an obligation for
judges and an ordinary function performed by judges.1 To be sure, ordering a
person removed from a courthouse can be an “ordinary” judicial function where
the person disrupts, threatens, or otherwise impedes a judicial proceeding before
the judge. Absent this connection to an ongoing judicial proceeding, however, the
“nature of the function” performed is not necessarily judicial. See Forrester v.
White, 484 U.S. 219, 226-29 (1988) (distinguishing between truly judicial acts and
“functions that judges may on occasion be assigned by law to perform,” and
holding that although judges may be obligated to—and may “ordinarily”—hire and
fire individuals in their staff, they are not entitled to absolute immunity for these
administrative, rather than judicial decisions).
1
The cases cited by the majority to support this proposition all involve individuals who disturbed
ongoing proceedings in the courtroom or otherwise obstructed adjudicatory matters before the
judge. None address judicial immunity.
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In this case, according to Professor Stevens’ own allegations, she was
removed from the building after she did not immediately comply with IJ Cassidy’s
order to exit his courtroom so a sealed matter could proceed. As such, I agree that,
on this record, IJ Cassidy’s removal of Professor Stevens was a normal judicial
function, because he issued the order during and as part of an ongoing proceeding.
Second, although I agree that the removal order “arose directly and
immediately out of IJ Cassidy’s dealing with Plaintiff in his judicial capacity,” I
disagree that in reaching this conclusion, we should rely on a metric of the
temporal proximity—approximately fifteen minutes—between IJ Cassidy’s order
that Professor Stevens exit the courtroom and her removal from the building. In
my view, IJ Cassidy engaged with Professor Stevens in a judicial capacity not
based on any temporal test (15 minutes, an hour, a day, a week, etc.), but because
he was on the bench presiding over an immigration matter when he ordered
Professor Stevens to exit his courtroom. She apparently failed to comply, and IJ
Cassidy ordered her removal from the building to carry out his initial order.
Professor Stevens’ removal thus “arose directly and immediately” out of an order
issued during an ongoing proceeding. If that were not the case, however, and the
removal order were merely “temporally related” to Professor Stevens’ presence in
IJ Cassidy’s courtroom, then IJ Cassidy could not “meaningfully be distinguished”
from any employee, clerk, law enforcement officer, security guard, or building
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manager who could similarly initiate her removal from the building, and judicial
immunity would not apply. Forrester, 484 U.S. at 229.2
Finally, although I agree that on this record IJ Cassidy is entitled to judicial
immunity, I am concerned about the question of Professor Stevens’ remedy for his
conduct. The decision in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872),
which established the doctrine of absolute judicial immunity, explained that the
doctrine was designed to further the public interest in an independent judiciary,
sometimes at the expense of legitimate individual grievances. Id. at 349; Pierson
v. Ray, 386 U.S. 547, 554 (1967). The Bradley Court accepted those costs to
aggrieved individuals only because the judicial system itself provided other means
of protecting individual rights: “Against the consequences of [judges’] erroneous
or irregular action, from whatever motives proceeding, the law has provided for
private parties numerous remedies, and to those remedies they must, in such cases,
resort.” Fisher, 13 Wall., at 354. However, the facts of this case amply
demonstrate that the Atlanta Immigration Court’s administrative procedures did
2
In Forrester v. White, 484 U.S. 219, 229 (1988), the Supreme Court held that judges’ decisions
to hire and fire staff are not “judicial” because “a judge who hires or fires a probation officer
cannot meaningfully be distinguished from a district attorney who hires and fires assistant
district attorneys, or indeed from any other Executive Branch official who is responsible for
making such employment decisions.” (citing Ex parte Virginia, 100 U.S. (10 Otto) 339, 25
L.Ed. 676 (1880)); see also Gregory v. Thompson, 500 F.2d 59, 64–65 (9th Cir. 1974) (holding
that a judge who himself forcibly expelled a litigant from his courtroom was not entitled to
absolute immunity because his “choice to perform an act similar to that normally performed by a
sheriff or bailiff should not result in his receiving absolute immunity . . . simply because he was
a judge at the time.”).
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not provide an avenue for meaningful review to safeguard Professor Stevens’
rights, especially in light of her history with IJ Cassidy and the Executive Office
for Immigration Review. 3
The doctrine of judicial immunity is an important one, and opinions
narrowing that doctrine must be thoughtfully circumscribed. By the same token,
however, opinions expanding the doctrine demand commensurate caution. I agree
that, on this record, IJ Cassidy may invoke judicial immunity for his order
removing Professor Stevens from the building. But that conclusion is based on a
far narrower understanding of what acts qualify as “truly judicial acts” and are
therefore entitled to absolute judicial immunity. Because I believe that the
3
The majority does not address the personal, non-judicial reasons that allegedly motivated IJ
Cassidy to remove Professor Stevens from the building and that involved nearly the entire
apparatus of the EOIR. See Harris v. Deveaux, 780 F.2d 911, 915 (11th Cir. 1986) (recognizing
that judges’ acts may not be entitled to judicial immunity if they result from “events in their
private, nonjudicial lives, events in which they ha[ve] a personal stake.”). Though they
acknowledge that “Plaintiff had published criticisms of deportation proceedings in general and of
Immigration Judge William Cassidy’s performance in particular,” they fail to mention that based
on these criticisms—including a piece that denounced IJ Cassidy for mistakenly deporting an
American citizen—IJ Cassidy and EOIR officials monitored and tracked Professor Stevens’
visits to courtroom proceedings all over the Southeast. For example, in June 2009, the Atlanta
Court Administrator emailed nineteen EOIR officials notifying them of Professor Stevens’
upcoming visit to Atlanta to obtain public records. In January 2010, IJ Cassidy (in Atlanta, GA)
emailed an Assistant Chief Immigration Judge (in Falls Church, VA) to notify him that Professor
Stevens was visiting the Stewart facility in Georgia. In April 2010, Professor Stevens visited an
immigration facility in Lumpkin, Georgia. Upon her arrival, the Court Administrator
immediately emailed EOIR public relations staff that Professor Stevens “want[s] access to view
the court hearing today . . . Please advise!” According to the record, no other individual had ever
attracted this kind of attention from EOIR officials. Moreover, about a week after the expulsion
giving rise to this lawsuit, an employee in the Department of Justice’s Public Affairs Office
emailed his colleagues regarding the “[p]ossible banning of blogger from immigration court.”
These facts animate the claim that the process available to Professor Stevens was not just
“displeasing” but was arguably inadequate as a check on IJ Cassidy’s misconduct.
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majority’s analysis of IJ Cassidy’s entitlement to judicial immunity has the
potential to undermine the constitutional right of open access to public
proceedings, I respectfully concur in the outcome only.
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