FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNY LISETTE FLORES, Nos. 20-55951
Plaintiff-Appellee, 20-56052
v. D.C. No.
2:85-cv-04544-
MERRICK B. GARLAND, Attorney DMG-AGR
General; ALEJANDRO MAYORKAS;
U.S. DEPARTMENT OF HOMELAND
SECURITY; U.S. IMMIGRATION AND OPINION
CUSTOMS ENFORCEMENT; U.S.
CUSTOMS AND BORDER PROTECTION,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted June 23, 2021 *
San Francisco, California
Filed June 30, 2021
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 FLORES V. GARLAND
Before: William A. Fletcher, Marsha S. Berzon, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Berzon
SUMMARY **
Immigration / Appellate Jurisdiction
In an action involving the 1997 settlement agreement
between the United States and a class of minors subject to
detention by U.S. immigration authorities (“the
Agreement”), the panel affirmed a district court order
enjoining the Department of Homeland Security (“DHS”)
from detaining certain minors in hotels for more than a few
days in the process of expelling them from the country.
In March 2020, the Centers for Disease Control (“CDC”)
issued an order temporarily suspending the introduction into
the United States of persons traveling from Canada or
Mexico who would otherwise be introduced into a
congregate setting. The order’s stated purpose was to protect
the public health from COVID-19, and it was issued under
Title 42, which authorizes the Surgeon General to prohibit
introduction of persons to protect against communicable
disease. In October 2020, the order was replaced by the
now-operative order, which is substantially the same (“Title
42 Order”).
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FLORES V. GARLAND 3
In July 2020, the Agreement’s independent monitor
reported that DHS was using hotels to house unaccompanied
and accompanied minors pending expulsion under Title 42.
Plaintiffs moved to enforce the Agreement, maintaining,
among other contentions, that the hoteling program violated
the Agreement’s requirement that DHS ordinarily transfer
minors within three days to a program licensed to provide
residential, group, or foster care service. The district court
issued an order on September 4, 2020, requiring DHS to stop
placing minors at hotels, absent certain exceptions. On
appeal, this panel denied the government’s motion for a stay
pending appeal. The district court then denied the
government’s stay motion but issued a modified order
requiring DHS to stop placing minors at hotels, except for
brief hotel stays (not more than 72 hours) as necessary and
in good faith to alleviate bottlenecks in intake processes
(“September 21 Order”). This panel denied the
government’s renewed motion for a stay pending appeal.
In February 2021, the CDC temporarily excepted
unaccompanied minors from expulsion under Title 42. The
government filed a status report with this Court stating that
it was not expelling accompanied minors under the Title 42
Order, it had generally stopped using hotels for accompanied
minors, and did not anticipate expanding its use of hotels.
Nonetheless, the government could not state that it would
not use hotels for custody in the future.
The panel concluded that this appeal was not moot,
explaining that a defendant claiming that voluntary
compliance moots a case bears the formidable burden of
showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur. In light
of the government’s recent representations, the panel
concluded that that burden was not met here.
4 FLORES V. GARLAND
The panel further concluded that it had appellate
jurisdiction under 28 U.S.C. § 1291. In the context of
postjudgment proceedings in which a district court has
retained jurisdiction to enforce an injunction or a consent
decree, this Court has held that some orders are sufficiently
final to warrant appellate jurisdiction absent any imposed
sanction, and some are not. Here, the panel concluded that
the September 4, 2020, order was not final because a
subsequent order modified it. However, following
Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir.
2010), the panel concluded that the district court’s
September 21 Order was appealable because (1) it had a
significant impact by making clear that the Agreement
applies to minors expelled under the Title 42 Order and
requiring government compliance, and (2) if the government
complied, as apparently it had done, it would be unlikely to
have any opportunity to appeal it unless the panel exercised
jurisdiction under section 1291. Recognizing that it had
tentatively reached the opposite conclusion as to jurisdiction
under 28 U.S.C. § 1292(a)(1) in denying the stay motion
than it did here under section 1291, the panel explained that
the two statutes differ in their wording and reach, so arriving
at different results did not signal contradiction.
Next, the panel concluded that the district court’s orders
were consistent with the Agreement. First, the panel rejected
the government’s argument that minors held under Title 42
are in the custody of the CDC, rather than DHS, and
therefore the district court erred in applying the Agreement
here. Looking to the ordinary meaning of “legal custody” in
family law, the California Family Code, and the DHS’s own
regulations assertedly implementing the Agreement, the
panel concluded that DHS has legal custody over minors
held under Title 42 because it maintains physical control and
exercises decision-making authority over such minors.
FLORES V. GARLAND 5
Second, the panel rejected the government’s contention that
the district court erred in applying a “strict three-day transfer
rule.” The panel concluded that the district court’s orders in
fact are not strict, noting flexibility to address exigent
circumstances and the exception to alleviate bottlenecks.
Finally, the panel rejected the government’s contention
that the risk of harm to the United States and the public
necessitates reversing the district court’s orders. The panel
explained that its prior holding, in denying the stay motion,
that the government had not demonstrated irreparable harm
was strengthened by the CDC’s decision to except
unaccompanied minors from expulsion under Title 42 and
by the government’s recent representations. The panel
observed that, should the government seek to use hotels for
custody related to Title 42 in the future, it may move to
modify the consent decree and, if the district court denies the
government’s motion, this Court will have jurisdiction to
review the denial under 28 U.S.C. § 1292(a)(1).
6 FLORES V. GARLAND
COUNSEL
Jeffrey Bossert Clark, Acting Assistant Attorney General;
August E. Flentje, Special Counsel to the Assistant Attorney
General; William C. Peachey, Director; Willia C. Silvis,
Assistant Director; Sarah B. Fabian and Nicole N. Murley,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellants.
Leecia Welch, Neha Desai, Poonam Juneja, Freya Pitts, and
Melissa Adamson, National Center for Youth Law, Oakland,
California; Carols R. Holguín, Center for Human Rights &
Constitutional Law, Los Angeles, California; for Plaintiffs-
Appellees.
Christopher J. Hajec and Matt A. Crapo, Immigration
Reform Law Institute, Washington, D.C., for Amicus Curiae
Immigration Reform Law Institute.
FLORES V. GARLAND 7
OPINION
BERZON, Circuit Judge:
In the latest iteration of this decades-long litigation, the
district court issued two orders enforcing the consent decree
incorporating the Flores Agreement. The orders enjoined the
Department of Homeland Security (“DHS”) from detaining
certain minors in hotels for more than a few days in the
process of expelling them from the United States. We
conclude that the district court’s second order was a final
decision for purposes of 28 U.S.C. § 1291, and we therefore
have jurisdiction to review it. As the district court did not err
in requiring DHS to apply the Flores Agreement to these
minors, we affirm the district court’s order.
I.
In 1997, the United States entered into a settlement
agreement (“the Flores Agreement” or “the Agreement”)
with a class of minors subject to detention by U.S.
immigration authorities (“Plaintiffs”). See Flores v. Rosen
(“Flores II”), 984 F.3d 720, 727 (9th Cir. 2020). The
Agreement was entered by the district court as a consent
decree and remains in effect today. 1 Among other things, the
Agreement provides that after the government apprehends
minors, it ordinarily must transfer them to a “licensed
program” within three days. 2 Agreement ¶ 12A. A “licensed
1
In December 2020, we affirmed the district court’s order denying
the government’s motion to terminate the Agreement. See Flores II, 984
F.3d at 744.
2
“‘[I]n the event of an emergency or influx of minors into the United
States,’ the requirement that minors be placed within three days is
relaxed, provided that ‘the INS shall place all minors pursuant to
8 FLORES V. GARLAND
program” refers to a “program, agency or organization that
is licensed by an appropriate State agency to provide
residential, group, or foster care services for dependent
children.” Id. ¶ 6.
In March 2020, the Centers for Disease Control (“CDC”)
issued an order temporarily suspending the “introduction . . .
into the United States . . . [of] persons traveling from Canada
or Mexico . . . who would otherwise be introduced into a
congregate setting in a land Port of Entry (POE) or Border
Patrol station at or near the United States borders with
Canada and Mexico,” subject to certain exceptions. 85 Fed.
Reg. 17,060, 17,061 (Mar. 26, 2020). The order was issued
under Title 42 of the U.S. Code, which authorizes the
Surgeon General to “prohibit . . . the introduction of persons
and property” to protect against a “serious danger of the
introduction of [any communicable] disease into the United
States.” 42 U.S.C. § 265. The stated purpose of the order was
to “protect the public health from an increase in the serious
danger of the introduction of Coronavirus Disease 2019
(COVID-19) into the land POEs, and the Border Patrol
stations between POEs, at or near the United States borders
with Canada and Mexico.” 85 Fed. Reg. at 17,061.
The CDC order called for “the movement of all . . . aliens
[covered by the order] to the country from which they
entered the United States, or their country of origin . . . as
rapidly as possible, with as little time spent in congregate
settings as practicable under the circumstances.” Id.
at 17,067. The order requested that “DHS implement this
order because CDC does not have the capability, resources,
or personnel needed to do so.” Id. The order was extended in
Paragraph 19 as expeditiously as possible.’” Flores II, 984 F.3d at 728
(quoting Agreement ¶ 12A(3)).
FLORES V. GARLAND 9
April and May 2020 and replaced, in October 2020, by a new
but “substantially the same” order. See 85 Fed. Reg. 65,806,
65,807 (Oct. 16, 2020); 85 Fed. Reg. 31,503 (May 26, 2020);
85 Fed. Reg. 22,424 (Apr. 22, 2020). We refer to the now-
operative October CDC order as the “Title 42 Order.”
The district court has appointed an independent monitor
to assess the implementation of the Flores Agreement. In
July 2020, the monitor reported to the district court that DHS
was using hotels to house unaccompanied minors, as well as
minors apprehended with a family member (“accompanied
minors”), pending their expulsion under Title 42, “routinely
for multiple days.” See Flores v. Barr, No. CV-85-4544,
2020 WL 5491445, at *2 (C.D. Cal. Sept. 4, 2020) (“Sept. 4
Order”). The independent monitor reported the next month
that DHS had used twenty-five hotels across three states,
both in border cities (El Paso and McAllen, Texas) and
interior cities (Phoenix and Houston), to house 660 minors
between the ages of ten and seventeen, 577 of whom were
unaccompanied. Id. On average, minors were housed in
hotels for “just under five days, though 25% [were] held for
more than 10 days, with a maximum stay of 28 days.” Id.
Plaintiffs filed a motion to enforce the Flores
Agreement, maintaining, among other contentions, that the
hoteling program violated the Agreement’s requirement that
DHS ordinarily transfer minors to a licensed program if it
holds them for longer than three days. Agreement ¶ 12A.
Plaintiffs also asserted that minors held in hotels were being
denied access to counsel in violation of the Agreement. Id.
¶ 32.
The district court granted Plaintiffs’ motion. The court
declared that the Agreement applied to minors detained
under the authority of Title 42 and required the government
to “comply with the Agreement with respect to such minors
10 FLORES V. GARLAND
to the same degree as any other minors held in their
custody.” Sept. 4 Order, 2020 WL 5491445, at *10.
Implementing that declaration, the court directed DHS to
stop placing minors in hotels by September 15, 2020. Id. The
order provided that “exceptions may be made for one to two-
night stays while in transit or prior to flights.” Id. In the event
of “other exigent circumstances . . . necessitat[ing] future
hotel placements,” the district court directed the government
to “immediately alert Plaintiffs and the Independent
Monitor, providing good cause for why such unlicensed
placements are necessary.” Id. Citing paragraph 12A of the
Agreement, the district court required DHS to “transfer all
minors” currently held in hotels to licensed facilities “as
expeditiously as possible.” Id. The court further directed the
government to permit Plaintiffs’ counsel to visit any facility
where minors were being held under Title 42 and to meet
with any minor being so held, invoking paragraphs 32 and
33 of the Agreement. Id. at *11.
The government appealed the district court’s order and
filed an emergency motion in this Court seeking a stay
pending appeal. The government’s motion relied on
evidence not presented to the district court. We denied the
government’s motion without prejudice and granted a
temporary administrative stay to allow the government to
seek a stay in the district court. Order, Flores v. Barr, No.
20-55951 (9th Cir. Sept. 16, 2020).
The district court denied the government’s motion for a
stay but modified its original order. The modified order
required DHS to stop placing minors at hotels by September
28, 2020, with the exception that “DHS may implement brief
hotel stays (not more than 72 hours) as necessary and in good
faith to alleviate bottlenecks in the intake processes at
licensed facilities.” Flores v. Barr, No. CV-85-4544, 2020
FLORES V. GARLAND 11
WL 5666550, at *4 (C.D. Cal. Sept. 21, 2020) (“Sept. 21
Order”). Returning to this Court, the government renewed
its emergency motion for a stay pending appeal.
In October 2020, we denied the government’s motion for
a stay pending appeal. Flores v. Barr, 977 F.3d 742 (9th Cir.
2020) (“Order Denying Stay”). We concluded that the
government had not shown a strong likelihood of success on
the merits because we likely did not have jurisdiction over
the appeal. Id. at 748. Additionally, we held that the
government had not established that irreparable harm would
result if the district court’s orders took effect while the
appeal was pending. Id. at 749.
There have been some developments concerning the
underlying Title 42 Order while this appeal has been
pending. In November 2020, the U.S. District Court for the
District of Columbia issued a preliminary injunction barring
enforcement of the Title 42 Order as to unaccompanied
minors, P.J.E.S. v. Wolf, No. 20-2245, 2020 WL 6770508,
at *17 (D.D.C. Nov. 18, 2020), but the D.C. Circuit later
stayed the preliminary injunction pending appeal, Order,
P.J.E.S. v. Pekoske, No. 20-5357 (D.C. Cir. Jan. 29, 2021).
Then, in February 2021, the CDC issued a notice
“temporarily except[ing] . . . unaccompanied noncitizen
children” from expulsion under Title 42. CDC, Notice of
Temporary Exception from Expulsion of Unaccompanied
Noncitizen Children Encountered in the United States
Pending Forthcoming Public Health Determination (Feb. 11,
2021). The notice stated that CDC was “in the process of
reassessing” the Title 42 Order and that the temporary
exception for unaccompanied minors would “remain in
effect until CDC has completed its public health assessment
and published any notice or modified Order.” Id.
12 FLORES V. GARLAND
After the CDC notice, the government filed a status
report with this Court stating that “CDC does not currently
have a date by which it anticipates [its] reassessment will be
complete.” The government further reported that it “does
expel minors who are accompanied by their parents or legal
guardians under the Title 42 Order, along with such parents
or legal guardians.” The government explained that it had
“stopped using hotels for the purpose of housing
accompanied minors with their parents or legal guardians
prior to their expulsion under the Title 42 Order, except on
very rare occasions as permitted for brief periods by the
district court’s orders, and does not anticipate expanding its
use of hotels for this purpose going forward.” Nonetheless,
the government could not “state that it would not use hotels
for custody related to Title 42 in the future, either during the
current pandemic or a future public health emergency, if
such practice were permitted.”
II.
This appeal is not moot, nor does the government
maintain that it is. The government has stated that it may
“use hotels for custody related to Title 42 in the future, either
during the current pandemic or a future public health
emergency, if such practice were permitted.” “[A] defendant
claiming that its voluntary compliance moots a case bears
the formidable burden of showing that it is absolutely clear
the allegedly wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). In light
of the government’s recent representation, that burden is not
met here.
Having determined that there is a live controversy, we
begin by addressing whether we have appellate jurisdiction.
The government contends we have jurisdiction to decide the
FLORES V. GARLAND 13
appeal under either 28 U.S.C. § 1291 3 or 28 U.S.C.
§ 1292(a)(1). 4
After the government moved for a stay pending appeal,
we issued an argument order asking the parties to “to discuss
the basis for appellate jurisdiction in light of Flores v. Barr,
934 F.3d 910 (9th Cir. 2019) [(“Flores I”)].” Order, Flores
v. Barr, No. 20-55951 (9th Cir. Sept. 25, 2020). Flores I held
that section 1292(a)(1) did not grant us appellate jurisdiction
over a district court order enforcing the Flores Agreement.
Section 1292(a)(1) authorizes “appellate jurisdiction over
interlocutory district court orders ‘granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to
dissolve or modify injunctions.’” Flores I, 934 F.3d at 914
(quoting 28 U.S.C. § 1292(a)(1)). In Flores I, the “parties
agree[d] that this court ha[d] jurisdiction over the appeal of
[that] post-judgment order only if it modified the
Agreement.” Id. at 912. We concluded that the order did not
modify the Agreement but simply enforced it, and therefore
that jurisdiction did not lie under section 1292(a)(1). Id.
at 915–17. The government never identified section 1291 as
a basis for appellate jurisdiction, and we did not address that
alternative.
In the briefing and argument on the government’s motion
for a stay pending appeal in this case, the parties again
3
Section 1291 provides in relevant part: “The courts of appeals . . .
shall have jurisdiction of appeals from all final decisions of the district
courts of the United States . . . .”
4
Section 1292(a)(1) provides in relevant part: “[T]he courts of
appeals shall have jurisdiction of appeals from . . . [i]nterlocutory orders
of the district courts of the United States . . . granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to dissolve or
modify injunctions . . . .”
14 FLORES V. GARLAND
focused primarily on section 1292(a)(1). In their brief
opposing the motion for a stay, Plaintiffs maintained that
jurisdiction was lacking because the district court’s orders,
like the order at issue in Flores I, did not modify the
Agreement. In reply, the government maintained that the
orders did “functionally modif[y]” the Agreement.
Additionally, the government averred in its reply brief that
jurisdiction lay under 28 U.S.C. § 1291, which grants
jurisdiction over “final decisions” of the district court. But
the government’s argument in that respect was limited: it
asserted that the district court’s orders were final because
they enjoined “activity taken under independent statutory
authority . . . by the CDC Director who has nothing to do
with the government’s immigration operations and is not a
party to the Agreement.” Id.
Denying the government’s motion for a stay, we
concluded we “likely” did not have jurisdiction over the
appeal under § 1292(a)(1) because the “district court just
directed compliance with the Agreement” and did not
modify it. Order Denying Stay, 977 F.3d at 747. We also
rejected the government’s argument that jurisdiction lay
under section 1291, reasoning that the “district court’s orders
do not state that the CDC Director is covered by the
Agreement and do not require the CDC to do anything.” Id.
at 746 n.2.
Now, in its opening brief on the merits, the government
argues for the first time that jurisdiction is proper under
section 1291. The district court’s orders are “final for all
practical purposes,” the government maintains, as “there are
no further proceedings in the district court contemplated by
the orders.” For this standard, the government relies on Stone
v. City & County of San Francisco, 968 F.2d 850, (9th Cir.
1992). Stone held that a postjudgment contempt order
FLORES V. GARLAND 15
imposing sanctions was final for purposes of section 1291.
Id. at 854–55. The government points to Stone’s observation
that the “most important concerns in determining § 1291
finality are ‘the inconvenience of piecemeal review on the
one hand and the danger of denying justice by delay on the
other.’” Id. at 855 (quoting Dickinson v. Petroleum
Conversion Corp., 338 U.S. 507, 511 (1950)).
Plaintiffs respond that appellate jurisdiction in Stone
“relied on the fact that the district court had imposed
sanctions on the appellant.” Plaintiffs maintain that when
“the district court has not imposed sanctions, a post-
judgment order is not yet final.”
Plaintiffs’ reading of Stone is accurate. We observed in
that case that “[w]hen a contempt order threatens to impose
sanctions to coerce compliance but the sanctions never
actually are imposed because the party appeals before the
sanctions accrue, the order is not final.” 968 F.2d at 854 n.4.
But a broader review of our case law, including cases not
cited by the parties, demonstrates that Plaintiffs’ proposed
rule is too narrow to encompass all the postjudgment orders
this court has held appealable under section 1291.
In the context of postjudgment proceedings in which the
district court has retained jurisdiction to enforce a permanent
injunction or a consent decree, we have held that some
postjudgment orders are sufficiently final to warrant
appellate jurisdiction absent any imposed sanction, and
some are not. Three cases arising in the context of prison
reform litigation illustrate our court’s approach to
determining finality for purposes of section 1291.
First, in Armstrong v. Schwarzenegger, 622 F.3d 1058
(9th Cir. 2010), the district court had years earlier required
the state defendants to produce a remedial plan to provide
16 FLORES V. GARLAND
disability accommodations for prisoners and had issued a
permanent injunction directing enforcement of the plan. Id.
at 1063. Plaintiffs brought a postjudgment motion to require
defendants to accommodate the needs of class members
housed in county jails. Id. The district court determined that
defendants were violating their statutory duties and the
court’s prior orders by failing to provide disability
accommodations to class members housed in county jails,
and it “ordered defendants to develop and issue to the
counties a plan to comply with the [Americans with
Disabilities Act] by improving the tracking of state prisoners
and parolees they house in county jails,” among other things.
Id. at 1064.
We held that the district court’s order was an appealable
final decision. First, we observed that “[f]inality is ‘to be
given a practical rather than a technical construction’: the
finality requirement is intended to prevent ‘piecemeal
litigation’ rather than to vindicate some purely technical
definition of finality.” Id. (quoting United States v. One 1986
Ford Pickup, 56 F.3d 1181, 1184 (9th Cir. 1995)). We
explained that we are “less concerned with piecemeal review
when considering post-judgment orders, and more
concerned with allowing some opportunity for review,
because ‘unless such [postjudgment] orders are found final,
there is often little prospect that further proceedings will
occur to make them final.’” Id. (quoting One 1986 Ford
Pickup, 56 F.3d at 1185). Applying that logic to the order on
review, we reasoned that the order “required defendants to
produce a plan with specific features . . . that would govern
future interactions between defendants, the counties, and the
disabled prisoners and parolees housed in the county jails.”
Id. at 1064–65. The order “did not contemplate further
orders except in the event of disagreement between
defendants and plaintiffs over the details of the plan.” Id.
FLORES V. GARLAND 17
at 1065. As a result, if we did not exercise jurisdiction “and
the defendants in good faith delivered the plan as ordered,”
it was “unclear that there would be any future opportunity
for them to appeal.” Id. Accordingly, we concluded that
jurisdiction lay under section 1291. Id. 5
In contrast, we held that two postjudgment orders, issued
five years apart in another prison reform lawsuit, were not
final for purposes of section 1291. In the underlying
litigation, the district court had appointed a receiver to
oversee the implementation of two consent decrees
pertaining to the provision of health care in California
prisons. Plata v. Schwarzenegger, 560 F.3d 976, 978–79
(9th Cir. 2009) (“Plata I”); Plata v. Brown, 754 F.3d 1070,
1073 (9th Cir. 2014) (“Plata II”).
In Plata I, the receiver had moved for contempt against
the State for failure to fund the receiver’s capital projects.
560 F.3d at 978. The district court entered an order directing
the State to transfer $250 million to the receiver by a date
certain and to appear in a contempt hearing shortly after that
date if it had not done so. Id. at 979. We held that the order
was “not final, but [was] rather an interim step toward
further proceedings.” Id. at 980. We reasoned that a “civil
contempt order is ordinarily not appealable until the district
court has adjudicated the contempt motion and applied
sanctions.” Id. We rejected the State’s argument that
awaiting sanctions would not allow it to raise the challenges
it sought to raise “because ordinarily a litigant defending a
5
For two additional cases holding that injunctions issued in
postjudgment proceedings were final for purposes of section 1291, see
Natural Resources Defense Council, Inc. v. Southwest Marine Inc.,
242 F.3d 1163 (9th Cir. 2001), and United States v. Washington,
761 F.2d 1404 (9th Cir. 1985).
18 FLORES V. GARLAND
contempt charge may not raise objections to the underlying
order that it violated.” Id. (citing United States v. Ayres,
166 F.3d 991, 995 (9th Cir. 1999)). We observed that the
State’s “dilemma may simply be a consequence of [its]
failure to follow more appropriate procedures . . . to
challenge the receivership and its plans.” Id. And we were
“not entirely convinced that the district court’s order so
confines the proposed proceedings.” Id. Accordingly, we
held that we lacked appellate jurisdiction under
section 1291.
Five years later, the State sought to file a motion to
terminate the consent decrees. The district court issued “a
scheduling order to coordinate the filing of a termination
motion with discovery disclosures.” Plata II, 754 F.3d
at 1072. The State appealed the order, maintaining that it
unlawfully delayed the State’s statutory right to file a
termination motion. Id. at 1074. We held that the scheduling
order was not appealable under section 1291 but that the
issues were sufficiently important to warrant mandamus
review. Id. at 1072–73.
Addressing section 1291, we acknowledged that we had
“held that an order entered after the underlying dispute has
been settled is appealable because it does not implicate the
concern with avoiding piecemeal appellate review that
underlies the final judgment rule.” Id. at 1074 (citing
Armstrong, 622 F.3d at 1064; One 1986 Ford Pickup,
56 F.3d at 1184–85; Washington, 761 F.2d at 1406). We
determined that in the circumstances presented, however,
review of the order did “raise the problem of piecemeal
review” because the litigation had been in the
“postjudgment, remedial phase since the entry of the first
consent decree in 2002.” Id. We reasoned that the district
court had “entered a number of orders designed to facilitate
FLORES V. GARLAND 19
the State’s compliance with the consent decrees and help
draw this case to a close.” Id. If the order at issue “were
immediately appealable as a post-judgment order, then every
scheduling order setting the framework for further
proceedings in this case might also be immediately
appealable.” Id. at 1074–75. Concluding that “each case
management order implementing a consent decree cannot
readily be considered a final post judgment order for
purposes of appeal,” we held that jurisdiction did not lie
under section 1291. Id. at 1075.
Armstrong and the two Plata cases offer some
guideposts for deciding whether a postjudgment order is
final in the injunctive consent decree context. Orders
contemplating further proceedings on the same issue, such
as case management orders and contempt orders that do not
impose sanctions, are unlikely to be final. A final order
should not anticipate any further proceedings on the same
issue and should have some real-world significance. The
order in Armstrong requiring defendants to create a plan for
providing disability accommodations to class members in
county jails was final because (1) it had significant, lasting
ramifications (the plan “would govern future interactions
between defendants, the counties, and the disabled prisoners
and parolees housed in the county jails,” 622 F.3d at 1064–
65), and (2) no further proceedings on the same issue were
contemplated, making it “unclear that there would be any
future opportunity for [defendants] to appeal” if they
complied with the order, id. at 1065.
Here, the district court’s September 4 Order was not final
because the district court issued a subsequent order
modifying it. But the September 21 Order is more like the
appealable order in Armstrong than the nonappealable orders
in the Plata cases. The September 21 Order has a significant
20 FLORES V. GARLAND
impact because it makes clear that the Agreement applies to
minors expelled under the Title 42 Order and requires the
government to comply with the Agreement as to those
minors. If the government complies with the September 21
Order, as apparently it has done, it is unlikely to have any
opportunity to appeal it unless we exercise jurisdiction under
section 1291. Following Armstrong, we conclude that the
September 21 Order is a final decision, and jurisdiction
therefore lies under section 1291.
We recognize that we tentatively reached the opposite
conclusion as to section 1292(a)(1) in our order denying the
government’s motion for a stay than we do here under
section 1291. But the two statutes differ in their wording and
reach, so arriving at different results applying each does not
signal contradiction. We note as well that there is no
practical difference between our current conclusion that we
have jurisdiction under section 1291 and our earlier
conclusion that we did not have jurisdiction under section
1292(a)(1), as we reached the latter determination after what
was essentially a merits analysis. See Part III, infra. To the
extent there is nonetheless some tension in the case law
interpreting sections 1291 and 1292(a)(1), we leave the
resolution of that tension for another day. 6 For now, we hold
that under our precedents, we have jurisdiction under section
1291 and must exercise it.
6
The Seventh Circuit has rejected Stone’s “pragmatic finality”
approach to analyzing the appealability under section 1291 of “orders in
postjudgment proceedings in institutional reform litigation.” Bogard v.
Wright, 159 F.3d 1060, 1063 (7th Cir. 1998). Bogard, decided before
Armstrong and our other injunctive cases applying Stone, concluded
instead that the “orthodox, and . . . the adequate, routes for obtaining
immediate appellate review of orders that cause irreparable harm are
mandamus . . . and 28 U.S.C. § 1292(a)(1).” Id.
FLORES V. GARLAND 21
III.
As to the merits, we have already addressed the parties’
primary contentions in the process of determining, in our
order denying the government’s motion for a stay, whether
we were likely to have jurisdiction under section 1292(a)(1).
The section 1292(a)(1) inquiry required us to analyze
whether the district court’s orders were consistent with the
Agreement or modified it. We determined that the orders
were likely consistent with the Agreement. We now affirm
that conclusion.
A.
First, the government maintains that the district court
erred in concluding that the Agreement applies to minors
held in custody pending their expulsion under the Title 42
Order. As before, we reject this contention.
By its terms, the Agreement applies to “[a]ll minors who
are detained in the legal custody of the INS.” Agreement
¶ 10. The former “Immigration and Naturalization Service’s
obligations under the Agreement now apply to [DHS] and
the Department of Health and Human Services.” Flores I,
934 F.3d at 912 n.2. Additionally, the Agreement applies to
both unaccompanied and accompanied minors. Flores v.
Lynch, 828 F.3d 898, 905 (9th Cir. 2016).
Reprising the arguments made in support of its stay
motion, the government maintains that minors held under
Title 42 “are in the legal custody of the CDC” because “the
source of law that gives rise to the government’s custody” is
the Title 42 Order, not the immigration statutes. As we
observed in denying the stay motion, there is no evidence
that the term “custody,” as used in the Flores Agreement,
refers to the source of legal authority for custody, as opposed
22 FLORES V. GARLAND
to the entity actually exercising legal custody. The
Agreement does not define “custody,” so we look to the
common meaning of the term, taking into account its legal
context. See Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th
Cir. 2009).
The ordinary meaning of the term “custody” in family
law is the right to make important decisions affecting the
child. For example, Black’s Law Dictionary defines “legal
custody” in the family law context as “[t]he authority to
make significant decisions on a child’s behalf.” Legal
Custody, Black’s Law Dictionary (11th ed. 2019); see
Principles of the Law of Family Dissolution § 2.09 (2002)
(explaining that states use “legal custody” to mean “the right
to participate in important decisions affecting the child”).
Similarly, the California Family Code § 3003 defines “legal
custody” as “the right and the responsibility to make the
decisions relating to the health, education, and welfare of a
child.” Cal. Fam. Code §§ 3003, 3006. 7 DHS itself, in a
recently promulgated set of regulations assertedly
implementing the Flores Agreement, defined “custody” as
“within the physical and legal control of an institution or
person,” 84 Fed. Reg. 44,392, 44,526 (Aug. 23, 2019), a
definition consistent with the family law understanding of
“legal custody.” 8 The government’s current position,
7
We refer to California law in interpreting the Agreement because
we “use contract principles” in “construing consent decrees,” and the
“contract law of the situs state applies.” Thompson v. Enomoto, 915 F.2d
1383, 1388 (9th Cir. 1990).
8
The regulations are not fully in force. Flores II largely upheld the
district court’s order enjoining DHS’s new regulations from taking
effect. 984 F.3d at 744. Neither our reasoning nor the district court’s
order reviewed in Flores II turned on the definition of “custody.” See id.
at 737–44; Flores v. Barr, 407 F. Supp. 3d 909, 916–24 (C.D. Cal. 2019).
FLORES V. GARLAND 23
focusing on the source of the legal authority for assigning
custody and not on the assigned custody itself, is inconsistent
with its use of the term in its own regulations, as well as with
common legal usage.
The government maintains that we should not look to
family law to interpret “legal custody” as used in the
Agreement because “a minor’s parent often would have
‘legal custody’ under . . . state family-law principles.” The
government’s suggestion seems to be that DHS and a child’s
parent could not both have legal custody of the child at the
same time. But as Plaintiffs point out, the parents of children
in government custody do retain parental rights, and more
than one person or entity can have legal custody of a child.
See Cal. Fam. Code § 3003 (recognizing joint legal custody).
Here, it is clear that DHS both maintains physical control
and exercises decision-making authority over the minors
held in hotels under Title 42. DHS apprehends the minors;
DHS decides, apparently unilaterally and with no
explanation or articulated standards, whether to expel them
under Title 42 or to detain them for removal proceedings
under the immigration statutes; DHS decides where and for
how long to hold them (the Title 42 Order says nothing
whatsoever about detention in hotels); and DHS provides for
their physical needs, including medical care. See Sept. 4
Order, 2020 WL 5491445, at *4–5. Thus, the district court
did not modify the Agreement in concluding that minors
held under Title 42 are in DHS’s custody for purposes of the
Agreement or, therefore, by applying the Agreement to those
minors.
The government raises the concern that the “district
court’s reading would allow the Agreement to potentially
apply to other—currently unanticipated—public-health-
related custodial situations, . . . so long as DHS plays a role
24 FLORES V. GARLAND
in the custody involved in carrying them out.” In support of
its position, the government poses the hypothetical scenario
of a child who had been exposed to Ebola, which has an
incubation period of up to 21 days, and suggests that the
Agreement “could require release of the minor” before that
period had ended. We decline to engage in this speculation.
The Agreement provides that, in the event of an
“emergency,” including “medical emergencies,” the
government shall place minors in a licensed program “as
expeditiously as possible.” Agreement ¶ 12A(3), 12B. In
light of this language concerning medical emergencies, we
have no fear that our conclusion that DHS has custody of the
children held under the current Title 42 Order will hamper
the government’s ability to respond to a future, as-yet-
unanticipated health emergency.
B.
Second, the government maintains that even if the
Agreement applies to the minors being expelled under the
Title 42 Order, the government’s hoteling program does not
violate the Agreement.
The government contends that the district court
“incorrectly concluded that the Agreement requires that
minors be transferred to licensed facilities generally within
72 hours” and ignored the exception for emergencies. See
Sept. 21 Order, 2020 WL 5666550, at *4. As noted above,
paragraph 12A of the Agreement provides an exception from
the three-day transfer rule “in the event of an emergency.”
Agreement ¶ 12A(3). The Agreement defines an
“emergency” as “any act or event that prevents the
placement of minors . . . within the time frame provided,”
including “medical emergencies (e.g., a chicken pox
epidemic among a group of minors).” Id. ¶ 12B. In the event
of an emergency, DHS is required to place minors in a
FLORES V. GARLAND 25
licensed program “as expeditiously as possible.” Id.
¶ 12A(3). The government maintains that the emergency
exception applies here, making the district court’s
“application of a strict three-day transfer rule . . . incorrect.”
The district court’s orders in fact are not strict. The
original order provides the government with flexibility to
address “exigent circumstances . . . that necessitate future
hotel placements.” Sept. 4 Order, 2020 WL 5491445, at *10.
And the amended order permits three-day hotel stays for the
express purpose of allowing the government to “alleviate
bottlenecks in the intake processes at licensed facilities.”
Sept. 21 Order, 2020 WL 5666550, at *4. Nothing in the
record establishes that the COVID-19 pandemic impedes or
prevents the government from placing minors in licensed
programs within three days.
Additionally, the government maintains that the district
court erred in ruling that holding minors in hotel rooms in
the care of “transportation specialists” is not “safe,” as
required by the Agreement. See Sept. 4 Order, 2020 WL
5491445, at *8–9; Sept. 21 Order, 2020 WL 5666550, at *2;
Agreement ¶ 12A. We need not decide whether the district
court correctly applied the Agreement’s “safe and sanitary”
requirement because the September 21 Order eliminates the
practical import of the district court’s finding on that issue.
Paragraph 12A of the Agreement requires DHS to hold
minors in facilities that are “safe and sanitary” after their
arrest, before they are transferred to a licensed program.
Agreement ¶ 12A. As mentioned, DHS must transfer minors
to a licensed program within three days barring an
emergency. Id. In the September 4 Order, the district court
found that hotel placements were not safe and ordered DHS
to stop using hotels, with limited exceptions. Sept. 4 Order,
2020 WL 5491445, at *8–10. But the September 21 Order
26 FLORES V. GARLAND
permitted DHS to hold minors in hotels for up to three days,
the same amount of time that would be allowed for a safe
and sanitary placement under the Agreement. Sept. 21
Order, 2020 WL 5666550, at *4. Thus, even if we were to
conclude that the district court erred in finding that hotel
placements were not safe, there would be no reason to alter
the district court’s September 21 Order. We therefore
decline to reach the “safe and sanitary” question.
IV.
Finally, the government maintains that the risk of harm
to the United States and the public necessitates reversing the
district court’s orders. We have already held that the
government has not demonstrated that complying with the
district court’s orders will cause irreparable harm. Order
Denying Stay, 977 F.3d at 749. That conclusion is
strengthened by the CDC’s decision to except
unaccompanied minors from expulsion under Title 42 until
further notice, and by the government’s representation that
it has “stopped using hotels for the purpose of housing
accompanied minors with their parents or legal guardians
prior to their expulsion under the Title 42 Order, except on
very rare occasions as permitted for brief periods by the
district court’s orders, and does not anticipate expanding its
use of hotels for this purpose going forward.” See supra
p. 12. Should the government seek to “use hotels for custody
related to Title 42 in the future, either during the current
pandemic or a future public health emergency,” it retains the
option of moving to modify the consent decree to permit that
practice. If the district court denies the government’s motion,
we will have jurisdiction to review the denial under 28
U.S.C. § 1292(a)(1).
FLORES V. GARLAND 27
V.
The district court’s September 21, 2020 Order is
AFFIRMED.