FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BERNARDO MENDIA, No. 16-15742 Plaintiff-Appellee, 16-16184 v. D.C. No. 3:10-cv-03910-MEJ JOHN M. GARCIA; CHING CHANG, Defendants-Appellants, OPINION and U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant. Appeal from the United States District Court for the Northern District of California Maria-Elena James, Magistrate Judge, Presiding Argued and Submitted September 11, 2017 San Francisco, California Filed November 3, 2017 2 MENDIA V. GARCIA Before: Mary M. Schroeder and Richard C. Tallman, Circuit Judges, and Robert H. Whaley, * District Judge. Opinion by Judge Tallman SUMMARY ** Civil Procedure The panel remanded the case to the district court pursuant to Federal Rule of Appellate Procedure 12.1(b) for the limited purpose of allowing the district court to make a final ruling on whether to dismiss plaintiff’s claims brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff, a United States citizen, sued Immigration and Customs Enforcement agents and the Department of Homeland Security under Bivens and the Federal Torts Claims Act, 28 U.S.C. § 1346(b), after agents erroneously lodged an immigration detainer against him while he was detained in county jail. The district court found that the individual defendants were not entitled to qualified immunity on plaintiff’s Bivens claims, and this interlocutory appeal followed. After the notice of appeal on the Bivens ruling was filed, however, the district court sanctioned plaintiff for egregious misconduct during discovery and * The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MENDIA V. GARCIA 3 ultimately dismissed his claims brought pursuant to the FTCA. Defendants then moved in this court for a limited remand pursuant to FRAP 12.1(b) to allow the district court to consider applying the sanction to plaintiff’s remaining claims. The panel held that a limited remand was permissible pursuant to FRAP 12.1 even though defendants had never asked the district court for a targeted indicative ruling under Federal Rule of Civil Procedure 62.1. The panel held that a FRCP 62.1 motion was not a prerequisite for a limited remand under FRAP 12.1(b) where the district court has already indicated it would grant a motion for the requested relief. The panel stated that it was satisfied that the district court made its intentions sufficiently clear in its order dismissing plaintiff’s FTCA claim and the panel treated that order as an indicative ruling for the purposes of applying FRAP 12.1. COUNSEL Daniel Aguilar (argued) and H. Thomas Byron III, Appellate Staff; Brian Stretch, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants. David R. Williams (argued), Ann M. Koppuzha, and Michael J. Shepard, Hogan Lovells US LLP, San Francisco, California, for Plaintiff-Appellee. 4 MENDIA V. GARCIA OPINION TALLMAN, Circuit Judge: Bernardo Mendia, a naturalized U.S. citizen, was detained in county ...
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