08-4749-cv
Milanes v. Napolitano

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED A ND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY O F TH AT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NO T REPRESENTED BY COUNSEL
UNLESS TH E SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE R EFERENC E TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 2 nd day of December, two thousand nine.

PRESENT:                REENA RAGGI,
                        PETER W. HALL,
                                  Circuit Judges,
                        BRIAN M. COGAN,
                                  District Judge.*

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VIRGINIA MILANES, OMAR MIGUEL FARFAN,
MANUEL ALBERTO MARTINEZ, ANDRES
GIOVANNY SANCHEZ, NANCY CASTRO,
MARGOTH PEREZ DE CHALAMPA, on behalf of
themselves and all others similarly situated,
                                   Plaintiffs-Appellants,**
                     v.                                                                    No. 08-4749-cv

JANET NAPOLITANO, in her official capacity as


          *
         District Judge Brian M. Cogan of the United States District Court for the Eastern
District of New York, sitting by designation.
          **
               We direct the Clerk of Court to amend the official caption as noted.
Secretary of the Department of Homeland Security,
JONATHAN SCHARFEN, in his official capacity as the
Acting Director of the United States Citizenship and
Immigration Services, ANDREA QUARANTILLO, in
her official capacity as District Director of the New York
City District of the United States Citizenship and
Immigration Services, ERIC H. HOLDER, JR., in his
official capacity as Attorney General of the United States,
ROBERT S. MUELLER, III, in his official capacity as
Director of the Federal Bureau of Investigation,
                                     Defendants-Appellees.***
----------------------------------------------------------------------------------------

APPEARING FOR APPELLANTS:                                     JANE GREENGOLD STEVENS, New York
                                                              Legal Assistance Group (James W. Quinn,
                                                              Richard W. Slack, Malick W. Ghachem, Caroline
                                                              Zalka, Morgan F. Frontczak, Weil Gotshal &
                                                              Manges LLP, Yisroel Schulman, Jason Parkin,
                                                              New York Legal Assistance Group, Foster Maer,
                                                              Jackson Chin, Alan Levine, LatinoJustice, on the
                                                              brief), New York, New York.

APPEARING FOR APPELLEES:                                      ROBERT WILLIAM YALEN, Assistant United
                                                              States Attorney (Tomoko Onozawa, Kirti Vaidya
                                                              Reddy, Elizabeth Wolstein, Assistant United
                                                              States Attorneys, on the brief), for Lev L. Dassin,
                                                              Acting United States Attorney for the Southern
                                                              District of New York, New York, New York.

          Appeal from the United States District Court for the Southern District of New York

(Lawrence M. McKenna, Judge).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgments entered on August 7, 2008, and September 11, 2008, are

          ***
         Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Janet Napolitano,
Jonathan Scharfen, and Eric H. Holder, Jr., are automatically substituted for their
predecessors as defendants in this case.

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VACATED in part, and the case is REMANDED to the district court.

       When they filed this putative class action, plaintiffs were six lawful permanent

residents awaiting decisions on their naturalization applications. They sued (1) to expedite

the processing of their naturalization applications and those of putative class members, and

(2) to invalidate the policy of conducting Federal Bureau of Investigation name checks on

each naturalization application. They now appeal the dismissal of their complaint, the denial

of class certification, and the denial of their motion for reconsideration. We assume the

parties’ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision.

       Preliminarily, we must consider whether we have jurisdiction over the appeal.

Because the six named plaintiffs have been naturalized, the government urges us to dismiss

the appeal as moot. See, e.g., Lillbask ex rel. Mauclaire v. State of Conn. Dep’t of Educ.,

397 F.3d 77, 84 (2d Cir. 2005) (“When the issues in dispute between the parties are no longer

live, a case becomes moot, and the court – whether trial, appellate, or Supreme – loses

jurisdiction over the suit, which therefore must be dismissed.” (internal citations and

quotation marks omitted)). When a class action has been certified, mootness of the dispute

between the named plaintiff and the defendant does not render other class members’ claims

nonjusticiable. See, e.g., Sosna v. Iowa, 419 U.S. 393, 401 (1975). Here, however, no class

has yet been certified. In such cases, the Supreme Court has allowed named plaintiffs whose



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individual claims have become moot to appeal only the denial of class certification. See

United States Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980).

       Plaintiffs’ opening brief mentions the class certification issue in a lone footnote.

While we generally “do not consider an argument mentioned only in a footnote to be

adequately raised or preserved for appellate review,” United States v. Restrepo, 986 F.2d

1462, 1463 (2d Cir. 1993), we nevertheless retain “ample discretion to excuse such a failure,”

Salahuddin v. Goord, 467 F.3d 263, 276 n.6 (2d Cir. 2006). We do so here because (a) there

was no surprise to the government, (b) the district court rested its class certification decision

on the merits of plaintiffs’ claims, and (c) plaintiffs have now extensively argued the issue.

See id.; Mitchell v. Fishbein, 377 F.3d 157, 164-65 (2d Cir. 2004).

       Because the district court did not address the requirements for class certification

separately from the merits of plaintiffs’ claims and our jurisdiction depends on resolution of

that issue, we vacate the denial of class certification and remand for the district court to

consider class certification in the first instance. In considering, on remand, whether the

prerequisites for a class action are satisfied, see Fed. R. Civ. P. 23(a), the district court will

need to decide who, if anyone, can “fairly and adequately” represent the class, including

representing the class on appeal from dismissal, id.; see also United States Parole Comm’n

v. Geraghty, 445 U.S. at 405-07. It may also consider whether to construct sub-classes based,

in part, on the discrete agency action that particular class members ask the court to compel.



                                                4
See Fed. R. Civ. P. 23(c)(5); see also 5 U.S.C. § 706(1); Norton v. S. Utah Wilderness

Alliance, 542 U.S. 55, 64 (2004).

       Accordingly, we VACATE the judgments in part, and REMAND the case to the

district court for further proceedings consistent with this order.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, Clerk of Court

                             By:_____________________________________




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