United States Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CATHOLIC SOCIAL SERVICES, INC.;
AMERICAN FEDERATION OF LABOR --
CONGRESS OF INDUSTRIAL
ORGANIZATIONS; UNITED FARM
WORKERS OF AMERICA, AFL-CIO;
MIGUEL GALVEZ MORAN;
IMMIGRATION PROGRAM; ESAUL
DELGADILLO-URIBE; GUSTAVO
RODRIGUEZ; ANIL K. URMIL; ISMAEL
No. 98-16269
DE LA CRUZ; ELMA BARBOSA;
D.C. No.
QUTB-E-ALAM KAHN; MOHAMMED
CV 98-00629-LKK/
HAQ; JESUS REYNA REYNA,
JFM
Plaintiffs-Appellees,

v.

IMMIGRATION AND NATURALIZATION
SERVICE; JANET RENO, Attorney
General; DORIS MEISSNER,
Commissioner of Immigration and
Naturalization Service,
Defendants-Appellants.

14965

CATHOLIC SOCIAL SERVICES, INC.;
UNITED FARM WORKERS OF
AMERICA, AFL-CIO; ESAUL
DELGADILLO-URIBE; GUSTAVO
RODRIGUEZ; ANIL K. URMIL; ISMAEL
DE LA CRUZ; MIGUEL GALVEZ
MORAN; ELMA BARBOSA; JESUS                            No. 98-16423
REYNA REYNA; QUTB-E-ALAM
D.C. No.
KAHN; MOHAMMED HAQ,
CV 98-00629-LKK/
Plaintiffs-Appellants,
JFM
v.
OPINION
JANET RENO, Attorney General;
DORIS MEISSNER, Commissioner of
Immigration and Naturalization
Service; IMMIGRATION AND
NATURALIZATION SERVICE,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding

Argued and Submitted
March 20, 2000--San Francisco, California

Filed November 21, 2000

Before: Procter Hug, Jr., Chief Judge, James R. Browning,
Stephen Reinhardt, Alex Kozinski, Stephen S. Trott,
Ferdinand F. Fernandez, Thomas G. Nelson,
Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber
and William A. Fletcher, Circuit Judges.

14966

Opinion by Judge William A. Fletcher;
Dissent by Judge Kozinski;
Dissent by Judge Fernandez;
Partial Concurrence and Partial Dissent by Judge Graber

_________________________________________________________________

COUNSEL

Robert M. Bombaugh, M. Jocelyn Wright, Keisha Dawn Bell,
Department of Justice, Washington, D.C., for the defendants-
appellants-cross-appellees.

Peter A. Schey, Carlos Holguin, Center for Human Rights and
Constitutional Law, Los Angeles, California, for the
plaintiffs-appellees-cross-appellants.

Robert B. Jobe, San Francisco, California, for amicus Ameri-
can Immigration Lawyers Association.

Erwin Chemerinsky, University of Southern California, Los
Angeles, California, amicus.

Marc Van Der Haut, San Francisco, California, for amicus
National Immigration Project, et al.

_________________________________________________________________

14972

OPINION

W. FLETCHER, Circuit Judge:

Plaintiffs bring a class action challenging the advance
parole policy of the Immigration and Naturalization Service
("INS") as inconsistent with the Immigration Reform and
Control Act of 1986 ("IRCA"), and challengingS 377 of the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 ("IIRIRA") as inconsistent with the equal protection
component of the Due Process Clause of the Fifth Amend-
ment. We must decide whether, under American Pipe Con-
struction Co. v. Utah, 414 U.S. 538 (1974), and Crown Cork
& Seal Co. v. Parker, 462 U.S. 345 (1983), the statute of limi-
tations was tolled during the pendency of an earlier class
action, and whether plaintiffs may bring a class action in this
case. If we decide that this suit may go forward as a class
action, we must further decide whether the district court acted
appropriately in granting in part, and denying in part, prelimi-
nary injunctive relief to plaintiffs.

For the reasons that follow, we hold that the statute of limi-
tations was tolled and that this case may proceed as a class
action. We further hold that the district court acted within its
discretion in granting a preliminary injunction protecting
members of the class challenging the INS' advance parole
policy as inconsistent with IRCA. Finally, we hold that the
district court erred in concluding that the earlier class action
prevented it from granting preliminary injunctive relief to
members of the class challenging S 377 of IIRIRA as incon-
sistent with equal protection. We therefore affirm in part and
reverse in part the decision of the district court, and we
remand to the district court for further proceedings.

I

This litigation has a long and unhappy history. In passing
IRCA in 1986, Congress created a one-time legalization pro-

14973

gram for illegal aliens who had resided in this country contin-
uously and unlawfully since 1982. See Pub. L. 99-603, 100
Stat. 3359, codified at 8 U.S.C. S 1255a. The House Report
accompanying IRCA stated, "The Committee intends that the
legalization program should be implemented in a liberal and
generous fashion. . . . Such implementation is necessary to
insure the true resolution of the program and to insure that the
program will be a one-time-only program." H.R. Rep. No.
682(I) at 72, reprinted in 1986 U.S.C.C.A.N. at 5676. IRCA
provided for a twelve-month period during which eligible
aliens could file legalization applications with the INS. The
Attorney General subsequently established this period as the
twelve months between May 5, 1987 and May 5, 1988. See
8 C.F.R. S 245a.2(a)(1).

To be eligible for legalization under IRCA, illegal aliens
must have resided in the United States since January 1, 1982,
and must have been continuously physically present in the
United States except for "brief, casual, and innocent
absences," since November 6, 1986. The relevant text pro-
vides:

Continuous physical presence since November 6,
1986

(A) In general

The alien must establish that the alien has been
continuously physically present in the United States
since November 6, 1986.

(B) Treatment of brief, casual, and innocent
absences

An alien shall not be considered to have failed to
maintain continuous physical presence in the United
States for purposes of subparagraph (A) by virtue of

14974

brief, casual, and innocent absences from the United
States.

8 U.S.C. S 1255a(a)(3). In November 1986, the INS sent a
telex to all of its offices interpreting the phrase "brief, casual,
and innocent absences." The telex specified that an alien who,
after November 6, 1986, made any departure and subsequent
reentry without prior authorization from the INS would be
ineligible for legalization, no matter how brief, casual, or oth-
erwise innocent the absence. The INS immediately began
enforcing its interpretation of "brief, casual, and innocent"
against aliens who had not obtained "advance parole" from
the INS. The telex's interpretation of "brief, casual, and inno-
cent" was later formalized in an INS regulation:

Brief, casual, and innocent means a departure
authorized by the Service (advance parole) subse-
quent to May 1, 1987 of not more than thirty days
for legitimate emergency or humanitarian purposes
unless a further period of authorized departure has
been granted in the discretion of the district director
or a departure was beyond the alien's control.

8 C.F.R. S 245a.1(g) (emphasis in original).

In November 1986, a group of aliens alleging that they
were otherwise eligible for naturalization under IRCA filed a
class action in federal district court challenging the INS'
advance parole policy as inconsistent with IRCA. Catholic
Social Services, Inc. v. Meese ("CSS I"), 685 F. Supp. 1149
(E.D. Cal. 1988). The district court certified a class pursuant
to Federal Rule of Civil Procedure 23 consisting of "all per-
sons prima facie eligible for legalization under[IRCA] who
departed and reentered the United States without INS authori-
zation (i.e., `advance parole') after the enactment of IRCA
following what they assert to have been a brief, casual and
innocent absence from the United States." The district court
held that the INS' interpretation of IRCA was "inconsistent

14975

with the statutory scheme" and issued remedial orders requir-
ing, among other things, that the INS extend the end of the
twelve-month application period under IRCA from May 1988
to November 1988. The government did not appeal the merits
of the district court's holding that the INS' interpretation of
"brief, casual, and innocent" was inconsistent with IRCA, but
it did appeal the remedial orders entered by the district court.
We affirmed the district court in consolidated appeals in
Catholic Social Services, Inc. v. Thornburgh ("CSS II"), 956
F.2d 914 (9th Cir. 1992).

On review of our decision, the Supreme Court held that the
record did not establish that plaintiffs' suit was ripe. See Reno
v. Catholic Social Services, Inc. ("CSS III"), 509 U.S. 43
(1993). The Court remanded for further development of the
record. In its opinion, the Court described its understanding,
based on the incomplete record, of the means by which the
INS implemented the advance parole policy. According to the
Court's description, when an applicant for legalization under
IRCA went into an INS office, he or she would first encounter
a Legalization Assistant to whom the INS had given pre-filing
authority over applicants. If the Legalization Assistant deter-
mined that the applicant was ineligible for legalization under
IRCA because of failure to obtain advance parole from the
INS for a "brief, casual, and innocent" absence, the Assistant
would tell the applicant that he or she was ineligible to file an
application. Because this pre-filing rejection of applicants
took place at the front desk of an INS office, the process of
pre-filing screening and rejection had come to be known by
the informal term "front-desking."

Because the Court could not determine from the record
whether the named plaintiffs could allege that they had been
turned away at the front desk, it vacated our judgment with
directions to remand to the district court for "proceedings to
determine which class members were front-desked. " Id. at 66-
67. It stated that "a class member's claim would ripen only
once he took the affirmative steps that he could take before

14976

the INS blocked his path by applying the regulation to him."
Id. at 59. The Court expressed skepticism about the ripeness
of claims by those who had not been turned away at the front
desk: "Although we think it unlikely, we cannot rule out the
possibility that further facts would allow class members who
were not front-desked to demonstrate that the front-desking
policy was nevertheless a substantial cause of their failure to
apply, so that they can be said to have had the`advanced
parole' . . . regulation applied to them in a sufficiently con-
crete manner to satisfy ripeness concerns." Id. at 66 n.28.

We remanded to the district court for further proceedings
in light of the Supreme Court's opinion. Catholic Social Ser-
vices, Inc. v. Reno ("CSS IV"), 996 F.2d 221 (9th Cir. 1993).
On remand, plaintiffs filed a seventh amended complaint.
Three named plaintiffs in the amended complaint alleged that
an INS officer at the front desk had told them that they were
ineligible for legalization under IRCA and had turned them
away without an application form. Three other named plain-
tiffs alleged that they had been discouraged from coming to
INS offices by reports of others having been turned away. The
district court then certified a class defined as follows:

All persons, otherwise eligible for legalization under
IRCA, who, after November 6, 1986, depart or
departed the United States for brief, innocent and
casual absences without advance parole, and who (i)
are therefore deemed ineligible for legalization, or
(ii) were informed that they were ineligible to apply
for, or were ineligible for legalization, or were
refused by the INS or its QDEs1 legalization forms,
_________________________________________________________________
1 Applicants for legalization under IRCA could file an application in an
INS office or in the office of a Qualified Designated Entity (QDE). QDEs
are state, local, community, or voluntary organizations authorized by the
Attorney General to accept applications under certain conditions. 8 U.S.C.
S 1255a(c)(2-3). QDEs were specifically authorized by IRCA to receive
application forms from aliens under the legalization program. 8 U.S.C.
S 1255a(c)(1)(A-B).

14977

and for whom such information, or inability to
obtain the required application forms, was a substan-
tial cause of their failure to timely file or complete
a written application.

The district court found it had jurisdiction over this class and
continued its prior remedial orders in effect. The government
appealed.

In 1996, while the appeal was pending, Congress enacted
IIRIRA. Section 377 of IIRIRA limits the courts' jurisdiction
over claims brought under IRCA. Its text provides:

Notwithstanding any other provision of law, no
court shall have jurisdiction of any cause of action or
claim by or on behalf of any person asserting an
interest under this section unless such person in fact
filed an application under this section within the
[twelve-month] period specified by subsection (a)(1)
of this section, or attempted to file a complete
application and application fee with an authorized
legalization officer of the [Immigration and Natural-
ization] Service but had the application and fee
refused by that officer.

8 U.S.C. S 1255a(f)(4)(C).

In an unsigned opinion, over the partial dissent of one
member, a panel of this court reversed. Catholic Social Ser-
vices, Inc. v. Reno ("CSS V"), 134 F.3d 921 (9th Cir. 1998).
In a section headed "Applicability of the Statute," it held that
S 377 eliminated the jurisdiction of the federal courts to enter-
tain a claim for adjustment of status under IRCA except for
claims brought by aliens who actually "tendered or attempted
to tender a complete application and fee." Id . at 925. Accord-
ing to the panel in CSS V, "[i]n order for a legalization officer
to have refused a complete application, a complete application
must have been tendered. Clearly, someone who was discour-

14978

aged from filling out an application or whose request for an
application was denied would not fall within the purview of
S 377." Id. at 925-26.

Then, in a section of the opinion headed "Constitutionality
of Section 377," the panel upheld the constitutionality of
S 377 against a separation of powers challenge based on a
contention that Congress had impermissibly intruded on judi-
cial authority by interfering with pending litigation in viola-
tion of United States v. Klein, 80 U.S. 128 (1871). CSS V, 134
F.3d at 926. The panel also rejected a due process challenge
based on a contention that Congress had completely fore-
closed judicial review of the constitutionality ofS 377. Id. at
927.

Finally, in the penultimate paragraph of the opinion, at the
end of the section headed "Conclusion," the panel wrote that
it was precluded from resolving the class members' conten-
tion that S 377 violated equal protection. See id. at 928.

Based on its construction of S 377, the panel concluded that
no named plaintiff had a right to challenge the INS' advance
parole policy as inconsistent with IRCA. Rather than remand
with leave to amend the complaint in light of S 377, the panel
remanded with instructions to dismiss the suit for lack of
jurisdiction without leave to amend. On remand, the district
court dismissed the case without prejudice.2

On April 7, 1998, plaintiffs filed a new class action in the
district court. Among the named plaintiffs in the new action
were plaintiffs who alleged that they satisfiedS 377 by having
_________________________________________________________________
2 A first dismissal without prejudice was filed on March 10, 1998. In
considering whether to take the case en banc, the Ninth Circuit withdrew
the mandate. At that time, the district court vacated its first dismissal. The
Ninth Circuit then issued its mandate after a denial of rehearing en banc.
The district court again dismissed the case without prejudice on December
23, 1998.

14979

tendered completed applications and fees and having been
turned away. These plaintiffs challenged the advance parole
policy as inconsistent with IRCA. Also among the named
plaintiffs in the new action were plaintiffs who did not satisfy
S 377 but who alleged that they had been turned away at the
front desk without having been given applications, and plain-
tiffs who alleged that they had been discouraged from coming
to INS offices by reports of others having been turned away.
These plaintiffs challenged S 377 of IIRIRA as inconsistent
with the equal protection component of the Due Process
Clause of the Fifth Amendment. The district court certified a
class of the first group of plaintiffs challenging the advance
parole policy, but refused to certify a class of the second
group challenging S 377.

The class certified by the district court was defined as fol-
lows:

All persons who timely filed for class membership
under [CSS I] and were otherwise prima facie eligi-
ble for legalization under [IRCA] and were thus
granted class membership, and who tendered com-
pleted applications for legalization under [IRCA]
and fees to an INS officer or agent acting on behalf
of the INS, including a QDE, during the period from
May 5, 1987 to May 4, 1988, and whose applications
were rejected for filing because they had traveled
outside the United States after November 6, 1986
without advance parole.

As to this class, the district court found that the statute of lim-
itations had been tolled during the pendency of the earlier
class action and that plaintiffs' claims were not time-barred.
The court also found that the new class action was not barred
by claim preclusion arising out of the earlier action. The court
did not analyze issue preclusion.

In determining the scope of injunctive relief for the class,
the district court found that plaintiffs had demonstrated a like-

14980

lihood of success on their claim that the INS' advance parole
policy violated IRCA. The district court granted preliminary
injunctive relief designed to protect members of the earlier
class action who were also members of the class certified in
the new class action. It ordered the parties to meet and confer
to develop a plan for determining membership in the new
class and enjoined the government, pending such a determina-
tion, from executing final orders of removal or from revoking
or denying work authorizations of any class member in the
earlier class action.

Under the panel decision in CSS V, those whom a Legaliza-
tion Assistant had turned away at the front desk without an
application, as well as those whom the advance parole policy
had discouraged from even coming into an INS office, were
prevented by S 377 from challenging the policy as inconsis-
tent with IRCA. The district court noted that these applicants
and would-be applicants had a plausible equal protection
argument against S 377, but it concluded that the panel in CSS
V had rejected that argument. The district court therefore
found that the equal protection argument had an insufficient
likelihood of success to warrant certifying a class and grant-
ing preliminary injunctive relief.

The government appealed, and plaintiffs cross-appealed. In
a two-to-one decision, the same panel that had decided CSS
V dismissed the new class action as time-barred. See Catholic
Social Services, Inc. v. INS ("CSS VI"), 182 F.3d 1053 (9th
Cir. 1999). We voted to take CSS VI en banc.

II

We must first decide whether this second class action is
time-barred. The statute of limitations for actions against the
government is six years. See 28 U.S.C. S 2401(a). It is undis-
puted that the earlier class action was timely. The question
before us is whether the statute of limitations was tolled dur-
ing the pendency of that action. If the limitations period was

14981

tolled, it is undisputed that the action now before us was also
timely filed.

A

There are two groups of plaintiffs with potentially viable
claims in this case. The first group is plaintiffs who satisfy the
statutory criteria of S 377. These plaintiffs tendered com-
pleted applications and fees to an INS officer at the front
desk, and had their applications and fees refused. Those plain-
tiffs are permitted by S 377 to bring suit for legalization under
IRCA. If timely filed, their IRCA claims may properly be
considered on the merits.

The second group is plaintiffs who satisfy the constitutional
ripeness criteria of CSS III but not the statutory criteria of
S 377. In the words of the Court in CSS III, these are plaintiffs
who have "[taken] the affirmative steps that[they] could
before the INS blocked [their] path by applying the regulation
to [them]." 509 U.S. at 59. These plaintiffs include, at a mini-
mum, those who went to an INS office and told their story to
an INS officer at the front desk, were told that they were ineli-
gible to apply, and were turned away without an application.
These plaintiffs are barred by S 377 from seeking legalization
under IRCA. If timely filed, their constitutional claims against
S 377 may be considered on the merits; ifS 377 is unconstitu-
tional, their IRCA claims also may be considered on the mer-
its.

Both groups of plaintiffs have at all times vigorously pur-
sued this litigation. A class of which they were members orig-
inally filed suit immediately after the INS' promulgation of its
advance parole policy. A seventh amended complaint was
filed promptly to satisfy the Supreme Court's ripeness holding
in CSS III. Three of the named plaintiffs in the seventh
amended complaint specifically alleged that they went to an
INS office, told their story to the INS officer at the front desk,

14982

were told they were ineligible to apply, and were turned away
without an application.

Only when the district court's decision based on the sev-
enth amended complaint was on appeal to this court did Con-
gress enact S 377 of IIRIRA. Section 377 for the first time
restricted those who could seek legalization under IRCA to
plaintiffs who had tendered completed applications and fees.
Thus, only after the passage of S 377 was the eligible plaintiff
class restricted to those who satisfied the criteria of S 377, and
only after the passage of S 377 were the three named plaintiffs
in the seventh amended complaint disqualified from repre-
senting the class of plaintiffs seeking legalization under
IRCA. Only after the passage of S 377, in other words, were
plaintiffs in the first group, who had tendered completed
applications and fees, placed on notice that the complaint
needed to be amended once again, this time to include a
named plaintiff from the first group. And only after the pas-
sage of S 377 were plaintiffs in the second group, who had
told their story at the front desk and had been turned away
without an application, placed on notice that the complaint
needed to be amended once again, this time to allege that
S 377 unconstitutionally deprived them of their right to seek
legalization under IRCA.

However, rather than remand to the district court to allow
amendment of the complaint to deal with the new reality that
had been created by the enactment of S 377 while the case
was on appeal, the panel of this court in CSS V  remanded with
instructions to dismiss the complaint. We believe that it would
have been by far the better course for the panel in CSS V to
remand with instructions to allow amendment of the com-
plaint to satisfy requirements imposed for the first time while
the case was on appeal. If the panel in CSS V  had allowed
such amendment, there would be no tolling and class certifi-
cation issues. But because the panel ordered the dismissal of
the action in CSS V, plaintiffs were obliged to file a new
action rather than allowed to continue their pending action.

14983

B

[1] The Supreme Court has twice addressed tolling issues
arising out of the dismissal of a class action. In American Pipe
& Construction Co. v. Utah, 414 U.S. 538 (1974), the Court
allowed unnamed members of a class to intervene as individ-
ual plaintiffs in an individual action that continued after
denial of class certification. In deciding that "the commence-
ment of the original class suit tolls the running of the statute
for all purported members of the class who make timely
motions to intervene after the court has found the suit inap-
propriate for class action status," id. at 553, the Court bal-
anced the purposes behind class actions and statutes of
limitations. Class actions promote "efficiency and economy of
litigation" by consolidating numerous individual suits into a
single suit. Id. Statutes of limitations "promote justice by pre-
venting surprises through the revival of claims that have been
allowed to slumber until evidence has been lost, memories
faded and witnesses disappeared." Id. at 554. The Court
accommodated both purposes by formulating a "rule. . . that
the commencement of a class action suspends the applicable
statute of limitations as to all asserted members of the class
who would have been parties had the suit been permitted to
continue as a class action." Id.

[2] In Crown, Cork & Seal Co. v. Parker, 462 U.S. 345
(1983), the Court extended American Pipe to allow tolling not
only where plaintiffs sought to intervene in a continuing
action, but also where they sought to file an entirely new
action. According to the Court, "[t]he filing of a class action
tolls the statute of limitations as to all asserted members of the
class . . . not just as to interveners." Id.  at 350 (internal quota-
tions omitted). Again, the Court relied upon the dual purposes
of class actions and statutes of limitations. In order both to
avoid "needless multiplicity of actions" and "to put defen-
dants on notice of adverse claims and to prevent plaintiffs
from sleeping on their rights," id. at 351-52, tolling was
appropriate. "[T]olling the statute of limitations . . . creates no

14984

potential for unfair surprise, regardless of the method class
members choose to enforce their rights upon denial of class
certification." Id. at 353. "Once the statute of limitations has
been tolled, it remains tolled for all members of the putative
class until class certification is denied. At that point, class
members may choose to file their own suits or intervene as
plaintiffs in the pending action." Id. at 354.

There is no dispute that if members of the class in CSS V
had filed individual actions after the dismissal of their class
action, the statute of limitations would have been tolled for
those individual actions. All members of the en banc panel
agree on this point. The only question in this case is whether
those same plaintiffs should be permitted to aggregate their
individual actions into a class action. Strictly speaking, this is
not a statute of limitations question at all. It is, rather, a ques-
tion of whether plaintiffs whose individual actions are not
barred may be permitted to use a class action to litigate those
actions. Neither American Pipe nor Crown, Cork & Seal
speaks directly to this question, for later-filed individual
actions, rather than class actions, were at issue in both of
these cases.

[3] If class action certification had been denied in CSS V,
and if plaintiffs in this action were seeking to relitigate the
correctness of that denial, we would not permit plaintiffs to
bring a class action. In Robbin v. Fluor Corp. , 835 F.2d 213
(9th Cir. 1986), we interpreted American Pipe  not to allow
tolling when the district court in the previous action had
denied class certification, and when the second action sought
to relitigate the issue of class certification and thereby to cir-
cumvent the earlier denial. Id. at 214. The Second Circuit
came to the same conclusion in Korwek v. Hunt , 827 F.2d 874
(2nd Cir. 1987). Other circuits agree with Robbin and Kor-
wek, holding that the filing of an earlier class action does not
toll the statute of limitations when the second action is no
more than an attempt to relitigate the correctness of the earlier

14985

class certification decision. See, e.g., Basch v. Ground Round,
Inc. 139 F.3d 6, 11 (1st Cir. 1998).

Some circuits have extended the Robbin and Korwek rule
prohibiting relitigation, applying it to cases in which a later
class of plaintiffs does not disagree with the denial of class
certification, but rather tries to cure the deficiency that led to
the denial. These circuits say that plaintiffs "may not piggy-
back one class action onto another and thus toll the statute of
limitations indefinitely." Griffin v. Singletary, 17 F.3d 356,
359 (11th Cir. 1994) (internal quotation marks omitted); see
Salazar-Calderon v. Presidio Valley Farmers Ass'n , 765 F.2d
1334, 1351 (5th Cir. 1985) ("[P]utative class members may
[not] piggyback one class action onto another[.]"); see also
Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988); Fleck v.
Cablevision VII, Inc., 807 F. Supp. 824 (D.D.C. 1992); Smith
v. Flagship Int'l, 609 F. Supp. 58 (N.D. Tex. 1985); Burns v.
Ersek, 591 F. Supp. 837 (D. Minn. 1984).

In Griffin v. Singletary, three individual named plaintiffs
brought a would-be class action under Title VII based in part
on the defendant-employer's use of a qualifying test. The dis-
trict court initially relied on Fifth Circuit precedent to certify
the class as an "across-the-board" class action that did not
require that the individual named plaintiff suffer the injuries
of unnamed class members. After the Supreme Court, in a
separate case, disapproved "across-the-board" class actions
and reiterated its prior holdings that a class representative
must suffer the same injuries as unnamed class members, the
district court decertified the class. See General Telephone of
the Southwest v. Falcon, 457 U.S. 147, 156 (1982) ("We have
repeatedly held that `a class representative must be part of the
class and "possess the same interest and suffer the same inju-
ry" as the class members.' " (internal quotations and citations
omitted)). The district court held that the would-be class
failed to satisfy Rule 23(a)(4) because the first two individual
named plaintiffs had not been injured by the test, and the third
had not filed a timely charge with the Equal Employment

14986

Opportunity Commission ("EEOC"). After dismissal of this
action, a second would-be class action was brought by indi-
vidual named plaintiffs who had filed timely claims and who
claimed to have been injured by the test. The court held that
the denial of class certification in the first action precluded a
second class action:

The plaintiffs may not "piggyback one class action
onto another," Salazar-Calderon . . . , and thereby
engage in endless rounds of litigation . . . over the
adequacy of successive named plaintiffs to serve as
class representatives. . . . [W]e decline to adopt any
rule that has the potential for prolonging litigation
about class representation any further.

17 F.3d at 359.

In Salazar-Calderon v. Presidio Valley Farmers , the dis-
trict court denied certification in three would-be class actions.
After class certification in the first action was denied for fail-
ure to satisfy the predominance and superiority criteria of
Rule 23(b)(3), the second and third actions were filed. Class
certification was denied in those actions on the same ground
as the first. Individual named plaintiffs then filed a fourth
action. The court allowed tolling for the individual actions
during the pendency of the first class action, but not the sec-
ond and third. It wrote:

Plaintiffs [in the fourth action] . . . argue . . . that . . .
Crown's tolling principle applies . . . not only for the
first class certification petition filed but also for any
subsequent petitions involving the same class. We
are not persuaded. Plaintiffs have no authority for
their contention that putative class members may
piggyback one class action onto another and thus toll
the statute of limitations indefinitely, nor have we
found any.

14987

765 F.2d at 1351.

This case is unlike either Griffin or Salazar-Calderon. In
both of those cases, the would-be classes in the first actions
failed to satisfy criteria of Rule 23. In Griffin, the first class
action was decertified because the individual named plaintiffs
were not proper class representatives under Rule 23(a)(4), and
the court refused to allow a later-filed class action that sought
to cure the procedural deficiencies of the first. In Salazar-
Calderon, the first three actions were never certified because
of failure to satisfy the criteria of Rule 23(b)(3). The court in
the fourth action allowed tolling for individual named plain-
tiffs during the pendency of the first would-be class action,
but not during the pendency of the two later-filed class actions
that had sought to cure the procedural deficiencies of the first.3

Unlike Griffin and Salazar-Calderon, there is no dispute in
this case that the classes in the first action were properly certi-
fied. Here, there were two successive classes in the first
action. The first class was certified by the district court in CSS
I; the second was certified by the district court in CSS IV. The
class in CSS I was narrowed when the Supreme Court in CSS
III found the substantive claim not ripe for plaintiffs who had
not "[t]aken the affirmative steps that [they] could before the
INS blocked [their] path by applying the regulation to
[them.]" 509 U.S. at 59. The class in CSS IV was narrowed
on appeal when S 377 of IIRIRA restricted the definition of
those entitled to challenge the "advance parole " policy. There
is no claim that the classes in CSS I and CSS IV were improp-
erly certified, and the classes were narrowed on both occa-
sions for reasons unrelated to Rule 23 certification. Plaintiffs
_________________________________________________________________
3 Two district courts have allowed tolling during the pendency of a first
class action for the benefit of a second class action, specifically noting that
the second action did not seek to relitigate an earlier certification denial
or to cure an earlier procedural deficiency. See Shields v. Smith, 1992 WL
295179 (N.D. Cal.); Schur v. Friedman & Shaftan , 123 F.R.D. 611 (N.D.
Cal. 1988).

14988

in the class action now before us thus do not seek to cure any
procedural deficiencies in the classes under Rule 23 certified
in the first action because there were none.

Plaintiffs in this case are thus in a fundamentally different
posture from plaintiffs in cases in which subsequent class
actions were not allowed. They have at all times vigorously
pursued this litigation. They originally filed suit immediately
after the INS' promulgation of its advance parole policy, and
they amended their complaint promptly to satisfy the Supreme
Court's ripeness holding in CSS III. Doubtless, they would
also have amended their complaint promptly to satisfy S 377
if the panel in CSS V had given them an opportunity to do so.
As it was, they promptly brought a new action, filing a com-
plaint challenging the advance parole policy as a violation of
IRCA and challenging the newly passed S 377 as a violation
of equal protection.

[4] We hold that under the doctrine of American Pipe and
Crown, Cork & Seal the statute of limitations was tolled dur-
ing the pendency of the first class action for the class mem-
bers and would-be class members in the action now before us,
and that plaintiffs in this case may aggregate their individual
actions into a class action. Plaintiffs in this case are not
attempting to relitigate an earlier denial of class certification,
or to correct a procedural deficiency in an earlier would-be
class. Both the class members challenging the advance parole
policy as inconsistent with IRCA and the would-be class
members challenging S 377 as inconsistent with equal protec-
tion were members of the classes certified in the earlier
action. The substantive claims asserted in this action are thus
within the scope of those asserted in the earlier action, and the
dismissal of that action did not result from an adverse deci-
sion on the merits of any of those claims.

III

Because this class action is not time-barred, we reach the
question whether the district court acted appropriately in
granting and denying preliminary injunctive relief.

14989

A

We first address whether S 306(a) of IIRIRA, 8 U.S.C.
S 1252(f)(1), deprives the district court of jurisdiction to issue
the preliminary injunction. Section 306(a) provides:

Regardless of the nature of the action or claim or of
the identity of the party or parties bringing the
action, no court (other than the Supreme Court) shall
have jurisdiction or authority to enjoin or restrain the
operation of the provisions of part IV of this sub-
chapter, as amended by [IIRIRA], other than with
respect to the application of such provisions to an
individual alien against whom proceedings under
such part have been initiated.

[5] This provision specifically limits the lower federal
courts' "jurisdiction and authority to enjoin or restrain the
operation of the provision of part IV of this subchapter." Part
IV, "Inspection, Apprehension, Examination, Exclusion, and
Removal," includes 8 U.S.C. SS 1221-1231. However, the
district court in this case issued the preliminary injunction
under 8 U.S.C. S 1255a, located in part V,"Adjustment and
Change of Status." Therefore, by its terms, the limitation on
injunctive relief does not apply to the preliminary injunction
granted by the district court.

We recognize that there are limitations on judicial review
contained in Part V, but we conclude that they do not apply
in this case. The Supreme Court addressed one aspect of this
limited review in CSS III, deciding that the exclusive judicial
review of a "determination respecting an adjustment of status"
under 8 U.S.C. S 1255a(f)(1) did not apply to cases like CSS
III in which no application had been accepted, and thus there
was no "determination" by the INS to review. 509 U.S. at 56.
The other limitation on judicial review is S 377 of IIRIRA,
codified at 8 U.S.C. S 1255a(f)(4), discussed at length in CSS
V and in this opinion. For present purposes, it suffices to say

14990

that S 377 purports to limit those who may challenge the
legality of the advance parole policy under IRCA, but it does
not limit the jurisdiction of the district court to grant appropri-
ate injunctive relief.

We next address whether S 242(g) of the Immigration and
Nationality Act, as amended by IIRIRA, 8 U.S.C.S 1252(g),
limits the district court's jurisdiction to grant injunctive relief.
Section 242(g) provides:

Except as provided in this section and notwith-
standing any other provision of law, no court shall
have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or
action by the Attorney General to commence pro-
ceedings, adjudicate cases, or execute removal
orders against any alien under this chapter.

As interpreted by the Supreme Court in Reno v. American-
Arab Anti-Discrimination Committee, 525 U.S. 471, 482-83
(1999), this provision applies only to the three specific discre-
tionary actions mentioned in its text, not to all claims relating
in any way to deportation proceedings. Consistent with the
Court's decision in American-Arab Anti-Discrimination Com-
mittee, we have affirmed grants of injunctive relief to classes
of aliens challenging deportation procedures in two recent
cases. In Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998), we
upheld the district court's grant of class-wide injunctive relief
and specifically declined to apply the limitation on jurisdic-
tion in S 1252(g) to the district court's exercise of jurisdiction
over due process challenges brought by a class of aliens
directly against deportation procedures. See id.  at 1051-1053.
In Barahona-Gomez v. Reno, 167 F.3d 1228, 1234 (9th Cir.
1999), we again affirmed the exercise of jurisdiction and the
grant of a stay of deportation to a class of aliens in order to
allow them to pursue their challenges to regulations promul-
gated by the INS.

14991

[6] We therefore conclude that neitherS 1252(f)(1) nor
S 1252(g) limits the district court's jurisdiction to grant
injunctive relief in this case.

B

Finally, we address the merits of the appeals. The govern-
ment contends that the district court erred in granting any pre-
liminary injunctive relief. Plaintiffs cross-appeal, contending
that the court erred in not granting additional relief. We affirm
the district court's grant of the existing injunction, but we
reverse the district court's denial of additional injunctive
relief.

1

The district court certified a class defined as all members
of the class certified in the earlier action who met the require-
ments of S 377, and it granted preliminary injunctive relief to
that class. That is, the district court granted relief to the class
of those who had actually tendered completed applications
and the appropriate fee to the INS legalization officer or QDE,4
and whose applications and fees had been rejected. These
class members contend, as did the class members in the ear-
lier action, that the INS' advance parole policy is inconsistent
with IRCA.

[7] We affirm the district court's grant of preliminary
injunctive relief to this class. The merits of their case were
decided in their favor in the earlier litigation, both by the dis-
_________________________________________________________________
4 We agree with the CSS V panel's conclusion that the requirement in
S 377 of presentation of a completed application and fee to a legalization
officer "should be broadly construed to mean presentation to anyone
authorized by the INS and IRCA to receive such form. " CSS V, 134 F.3d
at 924 n.2. Since QDEs were specifically authorized by the INS and IRCA
to receive application forms, see 8 U.S.C.S 1255a(c), aliens who filed or
attempted to file a completed application and fee with a QDE fall within
the statutory grant of jurisdiction and are properly included in this class.

14992

trict court in CSS I and by this court in CSS II. The Supreme
Court did not reach the merits of CSS II in CSS III, but rather
vacated the decision on ripeness grounds. The class has thus
clearly demonstrated a likelihood of success on the merits. It
is equally clear that the class would suffer immediate and
severe hardship if its members were deported or denied work
authorization pending final determination of their suits.
Accordingly, we hold that the district court acted within its
discretion in issuing an order protecting, on an interim basis,
the entire class certified in the earlier litigation until such time
as the subset that comprises the currently certified class can
be identified and protected. In affirming this aspect of the dis-
trict court's order, we note its short-term nature. The district
court ordered the parties to meet and confer within fifteen
days of the date of entry of the order to develop a plan to
determine which members of the earlier class are members of
the current class. That the preliminary injunction protecting
the entire earlier class is still in force is not a result of over-
reaching in the district court's order, but rather of the fact that
the government chose to appeal rather than comply. Finally,
we find no abuse of discretion in the district court's continua-
tion of the bond previously posted by plaintiffs.

2

The district court declined to grant preliminary injunctive
relief to the would-be class of plaintiffs who challenge S 377
as a violation of the equal protection component of the Due
Process Clause of the Fifth Amendment and who, ifS 377
were held unconstitutional, also would challenge the advance
parole policy as a violation of IRCA. The district court
declined to certify a class and grant relief because, based on
the panel decision in CSS V, it believed that there was insuffi-
cient likelihood of success. In so doing, however, the district
court made clear that it would have granted interim relief if
it had not felt constrained by CSS V, stating, "[i]f free to do
so, this court would find that there are fair grounds to litigate

14993

and that the balance of hardships tips decisively in plaintiffs'
favor."

If the panel in CSS V had actually decided the equal protec-
tion challenge to S 377, we would agree with the district
court. Indeed, we would go farther, not merely holding that
there is insufficient likelihood of success, but holding that the
doctrine of issue preclusion makes success flatly impossible.
Montana v. United States, 440 U.S. 147, 152 (1979); Her-
nandez v. City of Los Angeles, 624 F.2d 935, 937 (9th Cir.
1980). But if the equal protection claim was not actually
decided by the CSS V panel and issue preclusion therefore
does not apply, the district court is free to decide that claim
as it believes the law requires.

[8] Issue preclusion is appropriate where a court has actu-
ally and necessarily decided an issue in earlier litigation
between the same parties. Montana, 440 U.S. at 152; Her-
nandez, 624 F.2d at 937. However, when a decision in prior
litigation is unclear, that decision does not preclude subse-
quent litigation on that issue. Board of Ed. of Oklahoma City
Pub. Sch. v. Dowell, 498 U.S. 237, 245-46 (1991) (finding
earlier decision too unclear to preclude relitigation); Connors
v. Tanoma Mining Co., Inc., 953 F.2d 682, 684 (D.C. Cir.
1992) ("If the basis of the . . . decision is unclear, and it is
uncertain whether the issue was actually and necessarily
decided in that litigation, then relitigation of the issue is not
precluded."); Garrett v. City and County of San Francisco,
818 F.2d 1515, 1520 (9th Cir. 1987).

It is clear that the panel in CSS V actually and necessarily
decided the meaning of S 377 in the section of its opinion
headed "Applicability of the Statute," where it construed
S 377 to limit the group of plaintiffs who can challenge the
INS' advance parole policy to those aliens who actually ten-
dered or attempted to tender completed applications and fees
to the INS, and whose applications and fees were rejected.
134 F.3d at 924-26. It is also clear that the CSS V panel actu-

14994

ally and necessarily decided separation of powers and due
process challenges to S 377. Both challenges were separately
analyzed and rejected in the section headed "Constitutionality
of Section 377." Id. at 926-27.

It is also clear that the panel in CSS V did not actually and
necessarily decide plaintiffs' equal protection challenge to
S 377. The panel does not discuss the equal protection issue
either in the section of its opinion analyzing the statute or in
the section analyzing the statute's constitutionality. The
panel's only discussion of equal protection is contained in the
penultimate paragraph of the opinion. That paragraph reads,
in its entirety:

The enactment of S 377 also precludes this court
from considering the class members' argument that
S 377 violates the Equal Protection Clause of the
Fifth Amendment [sic].5 The class members before
this court have not alleged facts sufficient to satisfy
S 377's requirement that they were actually front-
desked nor have they alleged facts sufficient to dem-
onstrate that they were discouraged from filing an
application by the front-desking policy. By enacting
S 377, Congress explicitly denied the federal courts
the power to review a constitutional challenge by
persons who did not qualify for benefits because
they had failed to present a complete application to
a legalization officer within the statutory time limits.

Id. at 928.

[9] However, it is not clear that the CSS V panel actually
and necessarily decided that S 377 barred plaintiffs from
_________________________________________________________________
5 The Fifth Amendment has no Equal Protection Clause. An equal pro-
tection claim under the Fifth Amendment is brought under the equal pro-
tection component of the Due Process Clause. Bolling v. Sharpe, 347 U.S.
497, 499 (1954).

14995

bringing an equal protection challenge to S 377. The panel
appears to state that S 377 precluded plaintiffs from bringing
such a challenge, but it is not clear that the panel intended
such a statement. To state that S 377 precluded an equal pro-
tection challenge to itself is to state a legal impossibility, for
a statute cannot treat one group less favorably than another
and, at the same time, insulate itself from constitutional attack
by statutorily forbidding the disfavored group from bringing
an equal protection challenge to that very statute. Not only
does the apparent statement make no sense. The panel also
would not have construed S 377 in the penultimate paragraph
of its opinion, for the panel had already analyzed and con-
strued S 377 at length in the section of the opinion headed
"Applicability of the Statute." Thus, we do not believe that in
this paragraph the panel "actually and necessarily" decided,
within the meaning of issue preclusion doctrine, that S 377
precluded plaintiffs from bringing an equal protection chal-
lenge to itself.

[10] Although the equal protection challenge to S 377 is an
open issue in this litigation, we believe it would be inappro-
priate for us to decide the question with the case in its current
posture. Because S 377 was passed after the earlier class
action had been appealed from the district court, and because
in this class action the district court thought itself constrained
by CSS V, the district court has never addressed the equal pro-
tection issue. Under the circumstances, we think it best for the
district court to address the equal protection challenge to
S 377 as an initial matter, and to grant or deny injunctive
relief as appropriate, subject to appellate review by this court.

IV

For the foregoing reasons, we hold (1) that the district court
did not err in holding that for those plaintiffs who satisfied
S 377 the statute of limitations in this action was tolled during
the pendency of the earlier class action that was terminated by
the panel decision in CSS V, and that those plaintiffs may pro-

14996

ceed with a class action in this case; (2) that the district court
did not err in granting the preliminary injunction now in
force; and (3) that the district court erred in believing itself
foreclosed from considering the equal protection challenge to
S 377 of those plaintiffs who failed to satisfy the criteria of
S 377, and in accordingly denying class action certification to
those plaintiffs and limiting the relief they sought.

AFFIRMED in part; REVERSED in part; and
REMANDED for further proceedings consistent with this
opinion.

_________________________________________________________________

KOZINSKI, Circuit Judge, with whom Judges TROTT,
FERNANDEZ, and T.G. NELSON join, dissenting:

I

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

To avoid this perverse result, Crown, Cork adopted a sim-
ple solution: If the class action failed before reaching the mer-
its, putative class members would be allowed to bring

14997

individual lawsuits for however long was left on the statute of
limitations clock at the time the class action was filed. While
the Supreme Court said nothing about filing successive class
actions, it strongly implied that filing a subsequent class
action is not an option for class members once a class is dis-
missed: "Once the statute of limitations has been tolled, it
remains tolled for all members of the putative class until class
certification is denied. At that point, class members may
choose to file their own suits or to intervene as plaintiffs in
the pending action." Id. at 354. Given that Crown, Cork was
a case dealing with class actions, it is significant that the
Court did not mention the possibility of filing a second class
action should the first one fail.

Every circuit to have considered the issue (including our
own) has held that the rationale of Crown, Cork  does not per-
mit the filing of a second or subsequent class action once the
original statute of limitations has run. This reluctance is based
on a concern about the replicative effects of the Crown, Cork
rationale: A subsequent class action does not merely preserve
the rights of class members, it also engages for a second (or
third or further) time the rationale of Crown, Cork. Thus, if
the second class action is also dismissed short of the merits,
class members could still file individual lawsuits or another
class action. This would stretch the statute of limitations for
years, perhaps decades, past its original expiration date.

Our case illustrates the point. The six-year statute of limita-
tions began to run no later than May 4, 1988; but for tolling,
it would have expired May 4, 1994. The first application of
Crown, Cork extended the limitations period to June 26, 2004
--a full decade after the expiration of the original limitations
period. By giving Crown, Cork a second iteration, the major-
ity has extended the period to at least 2006, probably much
farther. Should the second class action fail without reaching
the merits, individual plaintiffs would still have six years from
the day that decision becomes final to sue individually or file

14998

another class action--extending the statute of limitations
beyond the wildest dreams of those who enacted it. 1

Every other circuit opinion to have addressed the issue has
recognized, as the majority apparently does not, that succes-
sive applications of Crown, Cork can severely undermine the
statute of limitations. See Basch v. Ground Round, Inc., 139
F.3d 6, 11 (1st Cir. 1998) ("Permitting such tactics would
allow lawyers to file successive putative class actions with the
hope of attracting more potential plaintiffs and perpetually
tolling the statute of limitations . . . . This simply cannot be
what the American Pipe rule was intended to allow . . . .");
Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir. 1994) ("The
plaintiffs may not `piggyback one class action onto another'
and thereby engage in endless rounds of litigation .. . . [W]e
decline to adopt any rule that has the potential for prolonging
litigation about class representation even further. " (citation
omitted and emphasis added)); Robbin v. Fluor Corp., 835
F.2d 213, 214 (9th Cir. 1987) ("[T]o extend tolling to class
actions . . . `falls beyond [American Pipe 's] carefully crafted
parameters into the range of abusive options.'  " (citation omit-
ted)); Andrews v. Orr, 851 F.2d 146, 149 (6th Cir. 1988)
("These decisions reflect the concern . . . [that] `[t]he tolling
rule of American Pipe . . . is a generous one, inviting abuse.' "
(citation omitted)); Korwek v. Hunt, 827 F.2d 874, 879 (2nd
Cir. 1987) (tolling subsequent class actions "would be inimi-
cal to the purposes behind statutes of limitations and the class
action procedure"); Salazar-Calderon v. Presidio Valley
Farmers Ass'n, 765 F.2d 1334, 1351 (5th Cir. 1985)
("Plaintiffs have no authority for their contention that putative
_________________________________________________________________
1 Plaintiffs would still have the full six years left to sue because they
have not yet used a single day of the limitations period. CSS first sued in
November 1986, when the INS announced it was going to enact the chal-
lenged regulation. The amnesty statute did not go into effect until May
1987, six months later. See 8 CFR S 245a.2(a)(1) (2000). Before the final
mandate for the first suit was issued in June 1998, CSS had already made
a preemptive strike, having filed its second class action two months earlier
(in April 1998).

14999

class members may piggyback one class action onto another
and thus toll the statute of limitations indefinitely, nor have
we found any.").2

Crown, Cork recognized that the plaintiffs' interests must
be balanced against those of the defendants, which includes
an interest in repose. Tolling the limitations period a second,
third or fourth time, dramatically shifts the balance of equities
in favor of the plaintiffs--and against the defendants--with
respect to the period of repose. Every other circuit has con-
cluded that, if the time limit has been tolled once, defendants'
interest in repose must prevail thereafter. Rather than articu-
lating an argument to the contrary, the majority makes a con-
voluted but unsuccessful effort at distinguishing the other
cases.

The majority first tries to distinguish Robbin  and Korwek
based on the fact that plaintiffs in our case are not attempting
to "relitigate the correctness" of the panel's dismissal in CSS
V by bringing the same proposed class to a different court.
Maj. Op. at 14985. Even assuming this is true, but see infra
at 15006-08 (Graber, J., dissenting in part), the majority does
not explain why this distinction could possibly make a differ-
ence. If Robbin and Korwek had been concerned that plaintiffs
were relitigating issues previously decided, they could have
resolved the case on collateral estoppel grounds. Instead, they
dismissed out of concern for the iterative effects of the
Crown, Cork rationale. See Robbin, 835 F.2d at 214; Korwek,
827 F.2d at 878. The distinction on which the majority relies
has no relevance to the reasoning actually employed by the
Robbin and Korwek courts.
_________________________________________________________________
2 The great majority of district courts have come to the same conclusion.
See In re Westinghouse Sec. Litig., 982 F. Supp. 1031, 1033-34 (W.D. Pa.
1997); In re Cypress Semiconductor Sec. Litig. , 864 F. Supp. 957, 959
(N.D. Cal. 1994); Fleck v. Cablevision VII, Inc., 807 F. Supp. 824, 826-27
(D.D.C. 1992); Smith v. Flagship Int'l , 609 F. Supp. 58, 63-64 (N.D. Tex.
1985); Burns v. Ersek, 591 F. Supp. 837, 842 (D. Minn. 1984).

15000

The majority recognizes, as it must, that this distinction
does not apply to Griffin and Salazar-Calderon because those
cases clearly did involve different class actions than those
filed in the previous suits. The majority then invents a second
distinction, namely that plaintiffs in our case are not "try[ing]
to cure the deficiency that led to the denial" of class certifica-
tion. Maj. Op. at 14986. This is not even a distinction,
because the plaintiffs here are trying to fix the problem that
led the earlier panel to reject its class and then dismiss its law-
suit. The panel in CSS V dismissed the class action because
not a single one of the 45,000 members had alleged that he
completed an application and tried to file it. See Catholic Soc.
Servs., Inc. v. Reno ("CSS V"), 134 F.3d 921, 927 (9th Cir.
1998). In the absence of such an allegation, the CSS V panel
held that section 377 divested it of jurisdiction over the claims
of the class. The sole purpose of this second lawsuit is to cor-
rect that deficiency by adding new plaintiffs, some of whom
allege that they tried to file a completed asylum application.
Just like plaintiffs in Griffin and Salazar-Calderon, CSS is
trying to refashion a new class action in an attempt to cure the
deficiency that caused the earlier dismissal.

But, even assuming this were a real distinction, the major-
ity again fails to explain why it matters. Whether the Crown,
Cork rationale can be employed more than once does not turn
on whether plaintiffs were somehow at fault when the earlier
panel dismissed the class action. Instead, as the other circuits
have recognized, it is a matter of balancing the interests of
plaintiffs in litigating the case by way of class action against
the interests of defendants in the period of repose. The majori-
ty's nit-picky distinctions do not change the fact that we set
ourselves in opposition to all the other circuits in saying that
the statute of limitations can be tolled more than once. Worse
still, the majority's fact-specific rationale offers no guidance
as to when (if ever) we will follow the other circuits and how
much (if anything) is left of our Robbin opinion. Instead of
performing the normal en banc function of clarifying the law,
the majority leaves it in total disarray.

15001

II

The majority also errs in its treatment of the cross-appeal.
See Maj. Op. 14993-96. It concedes that,"[i]f the panel in
CSS V had actually decided the equal protection challenge to
S 377, . . . the doctrine of issue preclusion[would make] suc-
cess flatly impossible." Maj. Op. at 14994. The equal protec-
tion question remains open, the majority opinion says,
because the earlier case did not reach it. Id.

So what? The earlier panel did reach an issue that is just as
lethal to the plaintiffs' equal protection claim, namely stand-
ing. The panel did not address the merits of the claim because
plaintiffs lacked standing to raise it, see CSS V, 134 F.3d at
928, and the plaintiffs are now bound by that determination.
The equal protection claim may be open for us to decide but
there is no one with standing to raise it.

Consider an analogy. If a court dismisses a breach of con-
tract suit on statute of limitations grounds, the plaintiffs can-
not then bring a new lawsuit seeking to have the contract
claim resolved on the merits. The previous case would bar
them from relitigating the limitations issue, and it would make
no difference that the breach of contract claim was still open.

We can argue all day whether CSS V was correctly decided
or whether it qualifies as "a legal impossibility." Maj. Op. at
14996. None of it matters. We declined to rehear the case en
banc, the plaintiffs did not file a petition for certiorari and the
mandate issued. They are bound by that decision and so are
we.

_________________________________________________________________

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

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

15002

GRABER, Circuit Judge, concurring in part and dissenting in
part:

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

BACKGROUND

1. General Background

The basic issue in all the Catholic Social Services (CSS)
cases is whether certain Immigration and Naturalization Ser-
vice (INS) regulations are valid. Those regulations -- the "ad-
vance parole" regulations -- state that aliens who once left
the United States without prior INS approval, even for the
briefest periods, are ineligible for amnesty under the Immigra-
tion Reform and Control Act of 1986. 8 C.F.R. S 2245a.1(g).

There are three possible kinds of plaintiffs. "Front-deskers"
are those aliens who tendered an application for amnesty to
the INS, but had the application immediately rejected at the
"front desk" based on the advance parole regulations. "Non-
filers" are most of those aliens who never applied for
amnesty. "Constructive front-deskers" are those non-filers
who can demonstrate that the INS' front-desking policy was
a substantial cause of their failure to apply. In CSS III, the
Supreme Court held that non-filers could not challenge the
advance parole regulations because the regulations never had
been applied to them, but also held that front-deskers could.
CSS III, 509 U.S. 43, 58-59 & n.20 (1993). The Court left

15003

open the question whether constructive front-deskers could
challenge the regulations. Id. at 66 & n.28.

2. CSS V

On remand from the Supreme Court, "the district court
modified the class definition so as to include persons who had
actually been front-desked and those who came within the
Court's dicta [concerning constructive front-deskers] by being
otherwise adversely affected by the front-desking policy."
CSS V, 134 F.3d 921, 924 (9th Cir. 1998). The district court
granted class-wide injunctive relief from the advance parole
regulations.

While the government's appeal from the district court's
order was pending, Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
Section 377 of IIRIRA provides in part:

Notwithstanding any other provision of law, no
court shall have jurisdiction of any cause of action or
claim by or on behalf of any person asserting an
interest under this section unless such person in fact
filed an application under this section . . . or
attempted to file a complete application and applica-
tion fee with an authorized legalization officer . .. .

In other words, under the statute, only individuals who either
actually filed applications or were front-desked can challenge
the advance parole regulations. Constructive front-deskers are
excluded.

This court in CSS V concluded that, due toS 377, the court
lacked jurisdiction over the class that was certified by the dis-
trict court because "none of the class members or named
plaintiffs have alleged that they actually tendered an applica-
tion and fee or attempted to do so but were rebuffed." CSS V,
134 F.3d at 927. (That statement seems incorrect because the

15004

class that had been certified by the district court clearly
included front-deskers. (See the definition quoted at p.
15003-04, above.) Thus, at first blush, it is difficult to under-
stand how CSS V could have held that no class member, as
distinct from no named plaintiff, had alleged that he or she
attempted to tender an application but was rebuffed.

CSS V further held that no member of the class that was
before the court could challenge S 377 as violative of equal
protection: "The class members before this court have not
alleged facts sufficient to satisfy S 377's requirement that they
were actually front-desked nor have they alleged facts suffi-
cient to demonstrate that they were discouraged from filing an
application by the front-desking policy." Id.  at 928.

3. The Present Case

After the dismissal of CSS V, a new group of named plain-
tiffs filed this action. None of the named plaintiffs in the pres-
ent case was a named plaintiff in CSS V, although all the
named plaintiffs (as well as all the class members) in this case
were members of the class in CSS V. The named plaintiffs in
this case consist of some front-deskers and some constructive
front-deskers. The class in this case is smaller than, but is
encompassed within, the class in CSS V.

The front-deskers argue that the advance parole regulations
conflict with the governing statute. The constructive front-
deskers similarly argue that the regulations are invalid but,
under S 377, the court lacks jurisdiction to hear their claim.
Accordingly, they also argue that S 377 violates equal protec-
tion by discriminating irrationally between regular front-
deskers, whose claims can be heard, and constructive front-
deskers, whose claims cannot be heard.

TOLLING OF THE STATUTE OF LIMITATIONS

The majority opinion distinguishes Robbin v. Fluor Corp.,
835 F.2d 213 (9th Cir. 1986), Korwek v. Hunt, 827 F.2d 874

15005

(2d Cir. 1987), and all the other cases that have held that class
actions may not be "stacked" for purposes of tolling, on the
ground that Plaintiffs do not seek to relitigate the issue of
class certification. Maj. op. at 14985-86. I disagree with that
characterization of this case. In my view, Plaintiffs are seek-
ing to relitigate the propriety of their proposed class. That is,
even if the majority's distinction were theoretically valid, it
has no application here.

In CSS V, the court held that none of the named plaintiffs
had alleged that he or she had been front-desked. 134 F.3d at
927. In the absence of such an allegation, the court lacked
jurisdiction over the claims of the named plaintiffs due to
S 377 and, thus, lacked jurisdiction over the claims of the
entire class. As a result, the court vacated the order of the dis-
trict court that had certified the class, CSS V , 134 F.3d at 928,
which is the equivalent of a denial of class certification. It
cannot be disputed that, if one of the named plaintiffs in CSS
V had alleged that he or she had been front-desked, the case
would not have been dismissed under S 377. Thus, CSS V log-
ically must be seen as resting on an implicit conclusion that
the named plaintiffs were not adequate representatives of the
class that had been certified by the district court. (The class
as certified included front-deskers, but no named plaintiff
actually was a front-desker.)

Consistent with that view of CSS V, the instant case is sim-
ply an attempt by Plaintiffs to relitigate the validity of their
class based on their inclusion of new named plaintiffs in the
complaint, some of whom do allege front-desking. In other
words, the case amounts to nothing more than another attempt
to plead a successful class action involving the same group of
class members and the same basic claims. So viewed, the case
is indistinguishable from all the other no-second-bite-at-the-
apple cases, and the statute of limitations should not be tolled.

In addition, as noted above, the CSS V court confusingly
held that no member of the class had alleged that he or she

15006

was front-desked, despite the fact that the district court certi-
fied a class that included front-deskers. Even if no named
plaintiff alleged front-desking, it is unclear how the CSS V
court reached the conclusion that no class member had been
front-desked. Nonetheless, the court did reach that conclusion.
The CSS V court's holding is best understood as a holding that
the class certified by the district court was improper. In partic-
ular, the court seems to have held that, although the district
court certified a class including front-deskers, there were no
factual allegations in the complaint sufficient to support the
certification.

Once again, that view suggests that Plaintiffs simply are
trying to relitigate the issue of the validity of the class. After
all, the members of the putative class in this case all were
members of the class that was dismissed in CSS V . Had they
more fully alleged their claims in the complaint at issue in
CSS V (as they now have done), the court would have had
jurisdiction over those claims in the earlier iteration of the
case and the class would have been valid.

In sum, these plaintiffs are no different from the plaintiffs
in all the other cases1 who were trying to relitigate, in some
way, the adequacy of an earlier, rejected class. As CSS V
explained, the instant plaintiffs had ample time to respond to
CSS III by amending their complaint to include named plain-
tiffs who actually had been front-desked plus factual allega-
tions supporting the existence of a class of front-deskers. CSS
V, 134 F.3d at 927-28. CSS V held that they had failed to do
so, and Plaintiffs unfortunately are stuck with that holding,
_________________________________________________________________
1 Basch v. Ground Round, Inc., 139 F.3d 6 (1st Cir. 1998); Griffin v.
Singletary, 17 F.3d 356 (11th Cir. 1994); Andrews v. Orr, 851 F.2d 146
(6th Cir. 1988); Salazar-Calderon v. Presidio Valley Farmers Ass'n, 765
F.2d 1334 (5th Cir. 1985); In re Westinghouse Sec. Litig., 982 F. Supp.
1031 (W.D. Pa. 1997); In re Cypress Semiconductor Sec. Litig., 864 F.
Supp. 824 (D.D.C. 1992); Fleck v. Cablevision VII, Inc., 807 F. Supp. 824
(D.D.C. 1992); Smith v. Flagship Int'l, 609 F. Supp. 58 (N.D. Tex. 1985);
Burns v. Ersek, 591 F. Supp. 837 (D. Minn. 1984).

15007

whether right or wrong. Having so failed, Plaintiffs cannot
take advantage of the Crown, Cork & Seal Co. v. Parker, 462
U.S. 345 (1983), tolling rule in order to make timely their
belated effort to relitigate the issue of the validity of the class
by filing a new complaint that contains fuller factual allega-
tions and names more adequate class representatives.

It is useful to remember that S 377 did not work a dramatic
change in the law. The Supreme Court already had held that
front-deskers had ripe claims but non-filers did not. The only
change wrought by S 377 was to eliminate the possibility,
skeptically noted by the Supreme Court in CSS III, that con-
structive front-deskers would have ripe claims. Thus, S 377
should not have caught the plaintiffs by surprise -- it was
hardly certain that a complaint alleging a class only of con-
structive front-deskers (which is what CSS V held that the
plaintiffs had filed) would survive. It is unfortunate that the
CSS V plaintiffs failed to name at least some front-deskers as
class representatives in the wake of CSS III, but that omission
is not of this court's making.

For the foregoing reasons, I concur in part and dissent in
part.

15008

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