United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
matter is before the Court on Respondents' Motion for
Reconsideration and to Vacate Order as Moot (Motion; Doc.
31), filed on November 5, 2019. In the Motion, Respondents
move the Court to reconsider its October 8, 2019 order
granting Petitioner Alban Lukaj's amended petition for
writ of habeas corpus under § 2241 (Order; Doc. 28) due
to a factual mistake that both parties failed to notice and
of which the parties failed to apprise the Court. Lukaj filed
a response. See Petitioner's Response to
Respondents' Motion for Reconsideration and to Vacate
Order as Moot (Response; Doc. 35). As the Motion was filed
within twenty-eight days of the Order and has raised a
substantive challenge to the Order, the Court will construe
the Motion as if filed pursuant to Federal Rule of Civil
Procedure 59. See Mahone v. Ray, 326 F.3d 1176, 1178
n.1 (11th Cir. 2003); Finch v. City of Vernon, 845
F.2d 256, 258-59 (11th Cir. 1988).
Order, the Court found that Lukaj's mandatory detention
under 8 U.S.C. § 1226(c)(1) was an unreasonably
prolonged period of time without a bond hearing such that it
violated the Due Process Clause of the Fifth Amendment of the
United States Constitution. Order at 11-20. In making this
finding, the Court analyzed a number of factors, including
the fact that Respondents had detained Lukaj in a criminal
institution for over fourteen months. Id. at 17-18.
Notably, in their pleadings both parties asserted that
Respondents detained Lukaj pursuant to § 1226(c)(1).
See Docs. 8 at 7-17; 13 at 4, 7-18. To cure this
constitutional error, the Court directed Respondents to give
Lukaj an individualized bond hearing. Order at 19-20.
now move for reconsideration due to an alleged error in fact
that counsel for both Lukaj and Respondents “failed to
recognize.” Motion at 1. Specifically, Respondents
represent that Lukaj's detention under § 1226(c)
ended on August 2, 2019, when the Board of Immigration
Appeals affirmed Lukaj's final order of removal.
Id. As such, since August 2, 2019, Lukaj had been
detained pursuant to 8 U.S.C. § 1231(a)(6), not §
1226(c). Id. Accordingly, Respondents argue that
Lukaj's amended petition for writ of habeas corpus under
§ 2241 (Amended Petition; Doc. 8) was rendered moot and
should have been dismissed because Lukaj was no longer
detained under § 1226(c). Id. at 6-9.
Respondents contend that because Lukaj specifically argued
his detention was unconstitutional pursuant to §
1226(c), the claims in the Amended Petition became moot as of
August 2, 2019, when his removal order became final causing
him to be detained pursuant to § 1231(a)(6) instead of
§ 1226(c). Id. at 7. According to Respondents,
subsequent to that date, the on-going case or controversy
alleged in the Amended Petition no longer existed.
Id. Respondents note that Lukaj did not challenge
any collateral consequences from his detention and the type
of detention challenge raised in the Amended Petition is not
callable of evading review. Id. at 8. Therefore,
Respondents aver this case is not subject to any exceptions
to the mootness doctrine and the Amended Petition should have
been dismissed. Id. Respondents alternatively
contend that even if the Court were inclined to reconsider
its Order by analyzing the constitutionality of Lukaj's
detention under § 1231(a)(6), such an analysis would be
premature because Lukaj has not yet been detained under
§ 1231 for six months, a requirement pursuant to
Zadvydas v. Davis, 533 U.S. 678 (2001).
Response, Lukaj contends that the Amended Petition was not
“factually moot” because the Court could still
grant effective relief, release from administrative
detention. Response at 5. Lukaj alleges that Respondents
“technical legal grounds” for arguing mootness
are not supported by the operative facts because he is still
being detained in violation of the United States
Constitution. Id. at 6. According to Lukaj, if the
court vacated the Order, he could still file a new habeas
petition alleging unconstitutionally prolonged detention
under § 1231, which would be based on identical facts
and the same argument that his detention constitutes a
violation of the Due Process Clause. Id. at 6-7.
Lukaj maintains that a shift between pre-order and post-order
detention, “which renders the same result under the
Constitution cannot and should not be ruled significant
enough to strip the court of jurisdiction because of
mootness.” Id. at 7. The shift in the
statutory authority relied upon by Respondents to detain
Lukaj does not, as he claims, moot his case because the same
factual circumstances exist, his prolonged, unconstitutional
detention. Id. at 10. Additionally, Lukaj asserts
that his case represents an exception to the mootness
doctrine because this action is capable of repetition yet
evading review. Id. Should the Court vacate the
Order, Lukaj argues in the alternative that he should be
allowed an opportunity to brief the Court on this issue.
Id. at 11.
59(e) affords the Court discretion to reconsider an order
which it has entered. See Mincey v. Head, 206 F.3d
1106, 1137 (11th Cir. 2000); O'Neal v. Kennamer,
958 F.2d 1044, 1047 (11th Cir. 1992). "The only grounds
for granting a Rule 59 motion are newly discovered evidence
or manifest errors of law or fact." Arthur v.
King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quotations
and citations omitted). The purpose of Rule 59 is not to ask
the Court to reexamine an unfavorable ruling in the absence
of a manifest error of law or fact. Jacobs v.
Tempur-Pedic Int'l., Inc., 626 F.3d 1327, 1344 (11th
Cir. 2010). As such, Rule 59(e) cannot be used "to
relitigate old matters, raise argument or present evidence
that could have been raised prior to the entry of
judgment." Michael Linet, Inc. v. Village of
Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).
to Article III of the United States Constitution, federals
courts have jurisdiction to consider active cases and
controversies. U.S. Const. art. III, § 2. “The
doctrine of mootness derives directly from the
case-or-controversy limitation because ‘an action that
is moot cannot be characterized as an active case or
controversy.'” Al Najjar v. Ashcroft, 273
F.3d 1330, 1335 (11th Cir. 2001) (quoting Adler v. Duval
County Sch. Bd., 112 F.3d 1475, 1477 (11th Cir.1997)).
Importantly, the issue of mootness is jurisdictional;
therefore, “[i]f events that occur subsequent to the
filing of a lawsuit or an appeal deprive the court of the
ability to give the plaintiff or appellant meaningful relief,
then the case is moot and must be dismissed.”
Id. at 1336. Nevertheless, there are exceptions to
the mootness doctrine. If the action being challenged is
capable of being repeated and evading review, then the action
is not moot. Id. However, this exception only
applies in exceptional situations, such as “when
‘(1) there [is] a reasonable expectation or a
demonstrated probability that the same controversy will recur
involving the same complaining party, and (2) the challenged
action is in its duration too short to be fully litigated
prior to its cessation or expiration.'”
Id. (quoting Sierra Club v. Martin, 110
F.3d 1551, 1554 (11th Cir.1997)). Additionally, the existence
of collateral consequences is also an exception to the
doctrine of mootness. Carafas v. LaVallee, 391 U.S.
234, 237 (1968).
the Court finds Respondents have identified an error of fact,
which substantially alters the Court's analysis of the
Amended Petition and of the constitutionality of Lukaj's
detention. The Amended Petition raised constitutional
issues as to his detention as authorized by §
1226(c)(1), not § 1231. These two sections apply to
different types of detention, with different statutory
requirements. Indeed, federal case law as to these two
sections is divergent based on these statutory differences.
Accordingly, the Court's analysis would have been
different had the Court been advised of the true facts prior
to entering the Order. As such, Respondents have presented a
sufficient basis to invoke the Court's discretion under
Rule 59. See Arthur, 500 F.3d at 1343.
Court further finds that the claim raised in the Amended
Petition was rendered moot prior to the entry of the
Court's Order. At the time of filing of the Amended
Petition, Respondents detained Lukaj pursuant to §
1226(c). Subsequent to the filing of the Amended Petition
Lukaj's detention changed because the removal order
became final. Therefore, this change in detention status
rendered his claim under § 1226(c) moot and deprived the
Court of the ability to grant Lukaj relief on the claim that
his detention pursuant to § 1226(c) is unconstitutional.
Additionally, the Court finds that the claim raised in the
Amended Petition does not meet either of the exceptions to
the mootness doctrine. Lukaj has not alleged any collateral
consequences and the claim raised in the Amended Petition is
not capable of evading review, as multiple courts have now
addressed similar claims on the merits. See Borbot v.
Warden Hudson County Corr. Facility, 906 F.3d 274, 278
(3rd Cir. 2018); Kabba v. Barr, 403 F.Supp.3d 180
(W.D.N.Y. 2019) (holding petitioner's unreasonably
prolonged detention of eighteen months under § 1226(c)
violated due process and an individualized bond hearing was
necessary); Reid v. Donelan, 390 F.Supp.3d 201 (D.
Mass. 2019) (holding in class action suit that mandatory
detention pursuant to § 1226(c) without a bond hearing
would violate due process once detention became unreasonably
Court rejects Lukaj's contention that the change in
detention status is merely a legal technicality. The change
represents a substantive, indeed critical, change in the
underlying facts supporting Lukaj's argument in his
Amended Petition. Pursuant to § 1226(c)(1), the Attorney
General is required to detain any alien who is inadmissible
or deportable by reason of having committed enumerated
criminal offenses after the alien has been released from
criminal incarceration. This section provides only one
exception that is not relevant to the case at bar. Detention
without bond is mandated under § 1226 “pending a
decision on whether the alien is to be removed from the
United States.” 8 U.S.C. § 1226(a). Once the
removal order is final, § 1231 requires the attorney
general to remove the alien from the country within a period
of ninety days. 8 U.S.C. § 1231(a); Zadvydas,
533 U.S. at 701. In Zadvydas, the United States
Supreme Court concluded that six months is a presumptively
reasonable period to detain a removable alien awaiting
deportation. Id. As such, “[a] six-month
custodial period of time following the order of removal must
have elapsed prior to the filing of a habeas
petition challenging confinement under
Zadvydas.” Fahim v. Ashcroft, 227
F.Supp.2d 1359, 1363 (N.D.Ga. 2002) (citing Akinwale v.
Ashcroft, 287 F.3d 1050, 1052 and n.3 (11th Cir. 2002))
(emphasis added). See also Aleman v. Jeff Sessions,
No. 3:18-cv-1129-J-32JBT (M.D. Fla. Sept. 24, 2018);
Metellus v. Holder, No. 3:11-cv-372-J-34JBT, 2011 WL
1740187, at *1 (M.D. Fla. May 5, 2011) (unpublished)
(recognizing Eleventh Circuit determined six-month period
must have expired at time the petition raising
Zadvydas claim is filed). Accordingly, in order for
Lukaj to challenge his detention under § 1231, a
six-month period of custodial detention must have elapsed.
This is a significant factual difference between the
detentions authorized by these two separate statutes, which
fundamentally alters the Court's analysis of the
constitutionality of Lukaj's detention.
removal period begins under § 1231 on the latest of
three possible triggering events: (1) the date the order of
removal becomes administratively final; (2) if the removal
order is reviewed by a court and the court orders a stay of
removal, then the date of the court's final order starts
the clock; or (3) if the alien is detained other than under
an immigration process, then date the alien is released from
detention. 8 U.S.C. § 1231(a)(1)(B). Here, Lukaj's
final order of removal became final on August 2, 2019.
See Doc. 20-1. Both parties represent that although
Lukaj has appealed the order of removal to the Eleventh
Circuit Court of Appeals, that court has not issued a stay of
removal proceedings. Motion at 5; Response at 7. Accordingly,
pursuant to § 1231(a)(1)(B), Lukaj's removal period
began on August 2, 2019, the date the order of removal became
administratively final. As such, the six-month period of
custodial detention under § 1231 has not elapsed and his
§ 1231 challenge appears to be premature and is not even
pled in the Amended Petition. Because Lukaj is no longer
detained in the manner alleged in the Amended Petition, the
Court will not consider the constitutionality of Lukaj's
current detention. See Zadvydas, 533 U.S. at 701.
For these reasons, Respondents Motion is due to be granted,
the Court's Order vacated, and Lukaj's Amended
Petition dismissed as moot. Because the Court was without
jurisdiction at the time it entered the Order and because the
Court now vacates the Order, counsel are cautioned against
citing the Order for any purpose.
Lukaj seeks issuance of a certificate of appealability, the
undersigned opines that a certificate of appealability is not
warranted. The Court should issue a certificate of
appealability only if the petitioner makes “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Lukaj “must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that “the issues presented were
‘adequate to deserve encouragement to proceed further,
'” Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)).
district court has rejected a petitioner's constitutional
claims on the merits, the petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
See Slack, 529 U.S. at 484. However, when the
district court has rejected a claim on procedural grounds,
the petitioner must show that “jurists of reason would
find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district ...