Case 2:07-cv-00445-MMB Document 1 Filed 02/01/07 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PENNSYLVANIA

PHILADELPHIA, PENNSYLVANIA

__________________________________________

Victor MOCANU

)

Plaintiff

)

v.

)

)

Case No. _____________

Robert S. Mueller, Director

)

Federal Bureau of Investigations

)

Agency file A 47-091-363

)

Unknown US Federal Government

)

Agency or Agencies

)

)

Michael Chertoff, Secretary of the

)

Department of Homeland Security

)

)

Emilio Gonzalez, Director

)

U.S. Citizenship and Immigration Services

)

)

Donald Monica, District Director, U.S.

)

Citizenship and Immigration Services, Phila. )

Defendants

)

__________________________________________)

COMPLAINT AND PETITION FOR HEARING ON NATURALIZATION

Plaintiff/Petitioner, Victor Mocanu, by and through undersigned Counsel, hereby

requests this Court to conduct a hearing on his naturalization application pursuant to its

exclusive jurisdiction under 8 U.S.C. §1447(b) to adjudicate whether he should be scheduled for

an oath ceremony and receive his U.S. citizenship. In the alternative, Plaintiff/Petitioner

requests that the Court mandates the respective defendants to complete examinations and

processing connection with his application for naturalization, which has been pending since

March 19, 2004. In support of this Petition, Plaintiff avers as follows:

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PARTIES 1. Petitioner, Victor Mocanu, is an adult male citizen from Romania. He resides 3117
Friendship, PA 19149. He filed an Application for Natz which has been pending since March 19, 2004. 2. Defendant/Respondent Robert Mueller, Director of the Federal Bureau of Investigations, is responsible for completing all security records checks in Immigration related matters, through FBI and other U.S. agency resources. He is sued in this official capacity only. 3. Defendant/Respondent, Unknown Agency, is an agency or agencies within the U.S. Government which has/have responsibility for conducting security records checks in Immigration related matters such as the Naturalization petition at issue here, and so advising the FBI. It is sued in its official capacity only. 4. Defendant, Michael Chertoff, Secretary, Department of Homeland Security, is empowered with the implementation of benefits and services including Naturalization pursuant to the Immigration and Nationality Act (INA), 8 U.S.C. § 1101, et. seq. He is sued in this official capacity only. 5. Defendant, Emilio Gonzalez, Director of U.S. Citizenship and Immigration Services (USCIS) and the senior officer of that agency. He is charged under 8 U.S.C. § 1103(c) with all responsibilities delegated to him by the Secretary of the Department of Homeland Security and authority in the administration of the U.S. Citizenship and Immigration Services and the Act including Naturalization. He is sued in this official capacity only. 6. Defendant, Donald Monica, District Director, Bureau of Citizenship Immigration
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Services, Philadelphia is the designee of Defendant Gonzalez empowered with implementing benefits and services under the INA. As such, he is the individual with supervisory responsibility over the adjudication and action on Petitioner’s naturalization petition at issue here. He is sued in this official capacity only.
JURISDICTION 7. This Court has direct and exclusive jurisdiction over this matter with the filing of this
Petition. This jurisdiction is provided for by 8 U.S.C. §1421(e); 8 U.S.C. §1447(b);1 and 28 U.S.C. §1331. There is no requirement for administrative exhaustion because the agency has failed to act on this application beyond the 120 days provided for in the statute. The failure to act on the underlying application after Mr. Mocanu was scheduled for an interview and then descheduled, without explanation, provides the Court with exclusive jurisdiction to decide the case on its merits. See, U.S. v. Hovsepian, 359 F.3d 1144, 1164 (9th Cir. 2004)(en banc). 8. To the extent that the Government’s actions in this matter are not supported by substantial justification, attorneys fees are appropriate. The Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412 (the "EAJA"), provides for the award of costs and attorney's fees to a prevailing party in litigation against the United States or
18 U.S.C. §1447 (a) If, after an examination under section 335 an application for naturalization is denied, the applicant may request a hearing before an immigration officer. (b) If there is a failure to make a determination under section 335 before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.
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one of its agencies. 9. The EAJA has been invoked to justify the award of attorney fees and costs in
immigration cases. See, e.g., Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154 (1990); accord Dabone v. Thornburgh, 734 F.Supp. 195 (E.D. PA 1990) and Harriott v. Ashcroft, 277 F. Supp. 2d 538, 545-46 (E.D.Pa. 2003).
VENUE 10. Venue is properly in this Court. The Petitioner resides in the District. Mr. Monica, the
Defendant with direct administrative responsibility over the Petitioner’s application operates and has his principle office in the District. Petitioner was scheduled for an interview at the Defendants’ CIS office in this District, located at 1600 Callowhill Street, Philadelphia PA 19130. All defendants are sued in their official capacities only.
CAUSES OF ACTION 11. There is no administrative alternative to this complaint. The FBI has made plain that the
only way that an individual can require completion of a delayed security check is by U.S. District Court Order (Exhibit 1). Specifically, the FBI has acknowledged that the processing of security clearances and name checks “has delayed the processing of regular submission from USCIS.” See paragraph 19 of Declaration of Michael A. Cannon. (Exhibit 2). The FBI has also acknowledged that in at least 10% of the cases it reviews for USCIS records must be reviewed through paper files. Id. Paragraph 14. However, “less than 1% of the request are identified with a file containing possible derogatory information.” Id. Paragraph 15. As a final note, in the individual review for which the FBI was making its declaration the name check and security clearance process took almost 22 months. Id. Paragraph 21. The statute requires action within 120 days from the
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interview 8 U.S.C. §1447(b). 12. Naturalization is the act of conferring citizenship on a person who is not a citizen by
birth. Title V of the Immigration Act of 1990 changed the legal process for naturalization. Previously officers of the Immigration and Naturalization Service (INS), as Examiners for State and Federal Courts, had investigated and documented cases for initial decision by the Judges of these courts. Under the present statute, cases are adjudicated by the U.S. Citizenship and Immigration Services and need not be decided by Courts unless the applicant seeks a change of name. However, provision is made for judicial review, if administrative naturalization is denied or delayed by 8 U.S.C. § 1421(c). This provision also allows for a trial de novo. 13. In order to qualify for judicial naturalization, the applicant lawful permanent resident must: a. have applied for naturalization and been refused; b. have sought administrative review under 8 U.S.C. §1447 and been refused; c. seek relief in the appropriate U.S. District Court, which is this action. As set forth in this complaint, the delay in adjudication is a constructive denial of the application and a refusal to provide administrative review. Inaction on an application meets the first two requirements set forth above. 14. It is counsel’s experience that security clearance delays are often attributable to mundane or easily rectifiable issues such as confusion of names and identities. These issues are not given priority by the FBI or other agencies, even though resolution is a ministerial act and not time consuming. 15. The facts of this matter are simple and should not be in dispute. Mr. Mocanu filed an
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application for Naturalization (N400) and received a receipt on March 19, 2004 (Exhibit 3). On June 3, 2004 Mr. Mocanu received a Fingerprint Notification and he was fingerprinted shortly thereafter (Exhibit 4). He was scheduled to appear for an Interview for February 24, 2005 (Exhibit 5). 16. However, Mr. Mocanu received a Notice dated January 27, 2005 stating that his February 24, 2005 Interview was descheduled due to “unforeseen circumstances” (Exhibit 6). On June 13, 2005 Counsel sent a letter to UCSIS asking why the Interview was cancelled and asking for rescheduling (Exhibit 7), the agency never responded. 17. On November 16, 2005 Counsel sent another letter to USCIS asking for the status of the application (Exhibit 8). USCIS finally sent a letter to Counsel on August 29, 2005 stating that Respondent’s case was still pending, that the background checks were outside USCIS, and that “these final checks can delay your case for an undetermined amount of time.” (Exhibit 9) 18. Mr. Mocanu meets all the requirements for naturalization. He has resided in Pennsylvania and been physically present in the U.S. for at least five years prior to the application. INA §316(a) and (c)2. He has been ready, willing and able to demonstrate his knowledge of U.S. government, civics, history and the English language. INA §312,3. He has demonstrated good moral character for the five year time period prior to the application and he has no criminal history whatsoever. INA §316(a). He simply wants to become a U.S. citizen. 19. The Defendants have constructively denied this application by its repeated failure to act.
28 U.S.C.§1427(a) and (c). 38 U.S.C. §1423.
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20. In counsel’s experience, if a case is properly adjudicated, a notice for oath ceremony is received between 1 month to 3 months after a successful interview. It has now been over 3 years since Plaintiff filed his N-400 Application. COUNT I
21. Paragraphs 1 through 20 are repeated and re-alleged as though fully set forth herein. 22. The USCIS failure to adjudicate Mr. Mocanu’s application for naturalization lawful
permanent residence violates the Immigration and Nationality Act (INA). In particular, 8 U.S.C. §1447(b) requires the USCIS to issue a decision within 120 days of an applicant being interviewed and the Interview has been cancel, indefinitely. Mr. Mocanu paid the filing fee and filed the application for naturalization with the Agency. The Agency scheduled and then descheduled the naturalization interview without explanation, possibly with the intent of avoiding the time constraints in the statute. Mr. Mocanu was and continues to be ready, willing and able to attend the interview, was prepared to answer all questions, and was prepared to prove his knowledge of the English language and U.S. history. The statute provides that action be taken within 120 days from the date of the interview. 8 U.S.C. §1447(b). It further allows for judicial review if there is inaction on the application. 8 U.S.C. §1421(c).
COUNT II 23. Paragraphs 1 through 22 are repeated and re-alleged as though fully set forth herein. 24. The USCIS failure to adjudicate Mr. Mocanu’s application for naturalization violates the
Adiminstration Procedure Act (APA). The Agency failure to act for more than one year after the filing in this matter is unlawful under the APA. The APA, 5 U.S.C. §706(1)
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allows a Court to compel agency action unlawfully withheld or unreasonably delayed. Simply put, the Government does not have a ground for delaying the action in this case.
COUNT III 25. Paragraphs 1 through 24 are repeated and re-alleged as though fully set forth herein. 26. The USCIS failure to adjudicate Mr. Mocanu’s application for lawful Naturalization
represents a total failure to act. Such a failure is a violation of Due Process under the Constitution and is a violation of a duty owed to the Petitioner. Therefore, it is requested that this Court issue an order under its Mandamus powers as set forth in 28 U.S.C. §1361. 27. There is no dispute that Mr. Mocanu's administrative file demonstrates that he meets all three elements of the above referenced section. The instant application has been delayed by government inaction in completing administrative security clearances, which does not involve any exercise of discretion. The government cannot by inaction abuse its authority by failing to make a decision. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) The U.S. Supreme Court reversed and remanded an INS District Director’s decision on the grounds that he had not actually exercised discretionary action. While the government has discretion, it does not have the discretion to infinitely delay making a decision. The failure of the government to make a decision is a violation of the type of duty identified in 28 U.S.C. §1361. Under Mandamus, this Court has the power to compel action to perform that duty although it cannot mandate whether the decision is to approve or to deny.
COUNT IV 28. To the extent that the Government’s actions in this matter are not supported by substantial
justification, attorneys fees are appropriate. The Equal Access to Justice Act, as amended,
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5 U.S.C. § 504 and 28 U.S.C. § 2412 (the "EAJA"), provides for the award of costs and attorney's fees to a prevailing party in litigation against the United States or one of its agencies. Plaintiff respectfully requests that this Court grants “EAJA” costs and fees as provided by statute.
WHEREFORE, for all of the above stated reasons, Petitioner, Mocanu, respectfully requests this Court to Order the following relief:
(a) Declare the refusal by defendants to adjudicate his application for adjustment of status to be contrary to law;
(b) Order defendants to schedule a naturalization interview and issue a decision in this matter within 30 days, and
(c) Grant Plaintiffs costs and attorneys fees and such other and further relief that this Court may deem proper. Respectfully submitted, ____________________________________ JAMES ORLOW - JJO3063 Attorney for Plaintiff Pennsylvania Bar #13108 ORLOW AND ORLOW, P.C. P.O. Box 40017 620 Chestnut St., Suite 656 Philadelphia, PA 19106 (215)922-1183 (215)922-0516 -Facsimile jorlow@orlow.com
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Case 2:07-cv-00445-MMB Document 1 Filed 02/01/07 Page 10 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PENNSYLVANIA PHILADELPHIA, PENNSYLVANIA

__________________________________________

Victor MOCANU

)

Plaintiff

)

v.

)

)

Robert S. Mueller, Director

)

Federal Bureau of Investigations

)

)

Unknown US Federal Government

)

Agency or Agencies

)

)

Michael Chertoff, Secretary of the

)

Department of Homeland Security

)

)

Emilio Gonzalez, Director

)

U.S. Citizenship and Immigration Services

)

)

Donald Monica, District Director, U.S.

)

Citizenship and Immigration Services, Phila. )

Defendants

)

__________________________________________)

Case No. _____________ Agency file A 47-091-363

EXHIBIT LIST Exhibit 1 – Copy of FBI Name Check Expedite Criteria Exhibit 2 – Declaration of Michael A. Cannon Exhibit 3- Copy of N400 Receipt dated April 13, 2004 Exhibit 4 - Copy of Fingerprint Notification dated May 14, 2004. Exhibit 5 – Copy of N400, Request for Applicant to Appear for Interview dated December 30, 2004. Exhibit 6 - Copy of Descheduled Interview dated January 27, 2005. Exhibit 7 – Copy of letter to USCIS dated June 13, 2005. Exhibit 8 – Copy of letter to USCIS dated November 16, 2005. Exhibit 9 – Copy of Correspondence letter from USCIS dated August 29, 2005.

 
 Case 2:07-cv-00445-MMB Document 7 Filed 10/04/07 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VICTOR MOCANU v.
ROBERT S. MUELLER, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-0445

MEMORANDUM

Baylson, J.

October 3, 2007

I. Factual Background & Procedural History

Plaintiff in this case seeks a hearing on a pending naturalization Petition. The

Defendants, all government agencies, have moved to dismiss for lack of subject matter

jurisdiction.

Victor Mocanu (“Plaintiff”), a citizen of Romania, alleges as follows: he meets all of the

requirements to become a U.S. Citizen and wishes to do so (Compl. ¶ 18); the United States

Citizenship and Immigration Services (“USCIS”) received his Application for Naturalization on

March 19, 2004 (Compl. ¶15); Plaintiff was fingerprinted shortly thereafter (Id.); Plaintiff was

then scheduled to interview with the USCIS on February 24, 2005 (Id.); in January, the USCIS

notified Plaintiff that the February 24, 2005 interview had been canceled “due to unforeseen

circumstances" (Id. at ¶16); in August, 2005, the USCIS informed Plaintiff that his case remained

unresolved awaiting the results of background checks, which could delay the case for “an

undetermined amount of time” (Id. at ¶17); since then, Plaintiff has heard nothing from USCIS

and, nearly two years later, his application remains pending. (Id.)

Plaintiff brings this action against Robert Mueller, Emilio Gonzalez, Michael Chertoff,

and Donald Monica, as the directors of the Federal Bureau of Investigation (“FBI”), the USCIS,

Case 2:07-cv-00445-MMB Document 7 Filed 10/04/07 Page 2 of 9
the Department of Homeland Security, and the Philadelphia office of Citizenship and Immigration Services, respectively. Additionally, Plaintiff names "Unknown US Federal Government Agency or Agencies," as defendants on the theory that some unidentified U.S. entity or entities might be contributing to the delay in processing his application.
Plaintiff’s Complaint seeks relief on four counts. The first count states that the government’s failure to act violates the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1421(c), 1447, whereas the second alleges that this failure constitutes a violation of the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(1). The third count seeks relief under the mandamus statute, 28 U.S.C. § 1361. Plaintiff’s fourth count requests attorneys fees under the Equal Access to Justice Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412. Ultimately, Plaintiff requests that this Court either (a) conduct a hearing on his naturalization application or (b) compel the relevant Government agencies to take the steps necessary to complete his naturalization process.
Defendants filed a Motion to Dismiss the Complaint, contending that this Court lacks subject matter jurisdiction over the matter. (Doc. No. 4.) Plaintiff filed an Opposition to the Government’s Motion to Dismiss. (Doc. No. 5.) The Court requested supplemental briefing. II. Parties’ Contentions
The government moves to dismiss the case for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), contending that neither the INA nor the APA provide a judicial remedy at this stage in the application process. Plaintiff argues against this reading of the applicable statutes, urging the Court to find jurisdiction appropriate under the INA alone, or alternatively
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under the INA in conjunction with the APA or the mandamus powers. There is no Circuit Court opinion on point. III. Legal Standard
In opposing a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the individual seeking to invoke the right to bring a claim in federal court has the burden of demonstrating subject matter jurisdiction. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991). In turn, the court “may not presume the truthfulness of plaintiff's allegations, but rather must evaluate for itself the merits of the jurisdictional claims.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005) (brackets omitted) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)). IV. Discussion
Title V of the Immigration Act of 1990 provides the statutory basis for the naturalization process. A person who has been lawfully admitted to the United States for permanent residence is eligible to become a citizen upon establishing five years of continuous residence in the United States and a showing of good moral character. 8 U.S.C. § 1427(a). The statute, in conjunction with agency regulations, sets out a four-step procedure for naturalization: (a) the filing of the application itself; (b) an investigation and background check; (c) an examination; and (d) the administration of the oath of allegiance. 8 U.S.C. § 1446(a); 8 C.F.R. § 335; see also Ajmal v. Mueller, No. 07-206, 2007 WL 2071873, at *2 (E.D.Pa., July 17, 2007) (Kauffman, J.). Plaintiff’s application is currently stalled at the second step of the process, the background check.
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A. Immigration and Nationality Act Plaintiff argues that jurisdiction is appropriate under section 1421(c) of the INA. Section 1421(c) gives a district court the authority to review the denial of an application for naturalization and, upon request, to conduct a hearing de novo to determine if an alien is eligible for naturalization. 8 U.S.C. § 1421(c). Such review is only appropriate, however, where the applicant has previously sought a hearing with an immigration officer under section 1447(a) of the INA. Id. In turn, section 1447(a) allows for a hearing before an immigration officer only after an “examination” (the third step in the naturalization process) has been completed. 8 U.S.C. §1447(a).1 In this case, Plaintiff alleges no examination has taken place, and as such, Plaintiff is entitled to neither a hearing before an immigration officer under section 1447(a), nor judicial review under section 1421(c). Plaintiff contends that the long delay in completing required background checks constitutes "a constructive denial of his application and a refusal to provide administrative review," warranting judicial intervention. (Compl. ¶13.) Plaintiff also seeks review under section 1447(b), which allows an alien to request judicial review of naturalization applications where the USCIS has not made a determination within 120 days of an examination. 8 U.S.C. § 1447(b). Again, because the Plaintiff’s
1To date, courts have split on the definition of “examination.” At least one court has ruled that “examination” refers to the entire investigative process informing the USCIS’s determination of eligibility for naturalization, including FBI background checks, fingerprinting, and interviews with applicants. Danilov v. Aguirre, 370 F. Supp. 2d 441 (E.D.Va. 2005). Other courts have determined that the term “examination” in this context refers solely to the act of interviewing the applicant. El-Daour v. Chertoff, 417 F. Supp. 2d 679 (W.D. Pa. 2005); Shalan v. Chertoff, No. 05-10980, 2006 WL 42143 (D. Mass., Jan. 06, 2006).
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application has not progressed to the “examination” stage, Defendants contend that judicial review under section 1447(b) would be inappropriate at this time.
B. Administrative Procedure Act Plaintiff alternatively argues that the failure to act upon his application for over a year is improper and reviewable under the APA. The APA allows a “reviewing court [to] compel agency action unlawfully withheld or unreasonably delayed. . . .” 5 U.S.C. § 706(1). In Badier v. Gonzalez, 475 F. Supp. 2d 1294 (N.D.Ga. 2006), the court held on facts nearly identical to those alleged in the instant matter that neither the APA nor the INA presented a basis for federal subject matter jurisdiction. The Badier court based its APA analysis on a Supreme Court holding that action under the Act is appropriate “only where an agency failed to take a discrete action that it was required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004). Because the Badier court determined that the INA establishes no time-frame for the adjudication of naturalization applications, and that such adjudication is at the discretion of the Attorney General, it found that the USCIS was not legally required to take any discrete action. Badier, 475 F. Supp. 2d at 1299. Accordingly, the court found that it had no subject matter jurisdiction under the APA. Id. A recent decision from this District; however, held in part that the USCIS “has a mandatory non-discretionary obligation to adjudicate . . . applications [for naturalization] within a reasonable amount of time. It cannot simply ignore them.” Kaplan v. Chertoff, 481 F. Supp. 2d 370, 399 (E.D.Pa. 2007) (Robreno, J). In the relevant portion of Kaplan, Judge Robreno denied the Government’s motion to dismiss a class-action lawsuit against the USCIS and FBI for failure to take action on applications for lawful permanent residence and naturalization. Id. The
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court determined that “mandatory rather than permissive language” within agency regulations supported the conclusion that the USCIS was obligated to take a discrete action, thus satisfying the Norton requirement. Id. Additionally, Kaplan holds the USCIS “‘does not possess unfettered discretion to relegate aliens to a state of limbo, leaving them to languish there indefinitely.’” Id. (quoting Kim v. Ashcroft, 340 F. Supp. 2d 384, 393 (S.D.N.Y. 2004)). Likewise, Judge Robreno determined that “Congress has imposed a mandatory duty on the FBI to perform background checks,” and for that reason refused to dismiss the plaintiff’s APA claim against the FBI. Kaplan, 481 F. Supp. 2d at 400. Here, Plaintiff argues that in light of Kaplan, this Court should allow his claims against the USCIS and FBI to proceed by finding jurisdiction under the APA.
Subsequent to the filing of Petitioner’s Opposition to Government Motion to Dismiss, Judge Kauffman ruled on an a motion to dismiss in a case with a factually indistinguishable record, reaching the opposite conclusion from Badier, at *2. In Ajmal, Judge Kauffman stated that dismissing the plaintiff’s action “would render meaningless the APA’s directive that agencies resolve matters presented to them ‘within a reasonable time.’” Id. Citing Kaplan, he ruled that the USCIS and the FBI have a non-discretionary duty under the INA to process applications for naturalization, and under the APA to do so in a timely manner. Id. Correspondingly, he found subject matter jurisdiction appropriate under the APA and denied the Government’s motion to dismiss. Id. Judge Kauffman found himself in accord with several courts on this matter, notwithstanding Badier. See Kaplan, 481 F. Supp. 2d at 399; Yong Tang v. Chertoff, 493 F. Supp. 2d 148 (D. Mass. 2007); Yu v. Broan, 36 F. Supp. 2d 922 (D.N.M. 1999); Duan v. Zamberry, No. 06-1351, 2007 WL 626116 (W.D. Pa. Feb. 23, 2007).
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C. Mandamus 28 U.S.C. § 1361 states in full: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Plaintiff seeks relief for the Court to compel the USCIS and other relevant agencies to act pursuant to its mandamus powers. Plaintiff alleges that the failure of the Government to reach a decision on his application for naturalization constitutes a violation of a duty owed to him. (Compl. ¶ 27.) Plaintiff claims analysis under § 1361 leads to the conclusion as under the APA. See Yan v. Mueller, No. 07-313, 2007 WL 1521732, at *8 (S.D. Tex. May 24, 2007) (“Because both statutes offer similar means of compelling an agency to take action which by law it is required to take, claims made under this provision of the APA and the federal mandamus statute are subject to the same standard.”) Although subject matter jurisdiction is not free from doubt, in the absence of any Circuit Court decision on the issue presented, the undersigned will respect the views of Judges Robreno and Kauffman of this Court at this time and deny the government’s Motion to Dismiss. If the Third Circuit decides this issue, of course this Court will be bound. If another Court of Appeals issues a contrary decision, the Court will consider that holding. This is a more appropriate resolution so that Plaintiff’s Complaint, filed almost eight months ago, will remain before the Court and the parties can proceed with any discovery that may be necessary and then with dispositive motions. If it turns out at any time there is a showing that subject matter jurisdiction is not present, the case can be dismissed at that time.
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V. Conclusion For the foregoing reasons, Defendants’ Motion to Dismiss for lack of subject matter
jurisdiction will be denied. An appropriate Order follows.

Case 2:07-cv-00445-MMB Document 7 Filed 10/04/07 Page 9 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VICTOR MOCANU, v.
ROBERT S. MUELLER, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-0445

ORDER AND NOW, this 3rd day of October, 2007, upon consideration of Defendants’ Motion to Dismiss (Doc. No. 4), and Plaintiff’s Opposition thereto (Doc. No. 5), and for the reasons stated in the accompanying Memorandum, it is hereby ORDERED that the Motion is DENIED.

BY THE COURT:
s/Michael M. Baylson _________________________ Michael M. Baylson, U.S.D.J.
O:\CIVIL 07\07-0445 Mocanu v. Mueller\07-0445 Mocanu v. Mueller MTD.wpd

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 Case 2:07-cv-00445-MMB Document 19 Filed 01/14/08 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VICTOR MOCANU v.
ROBERT S. MUELLER, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-0445

GUISEPPE CUSUMANO v.
ALBERTO GONZALES, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-0971

MOHAMMAD BARIKBIN v.
UNITED STATES, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-3223

TONGZIAO ZHANG v.
MICHAEL CHERTOFF, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-2718

ANDREW O. NEWTON, M.D. v.
DONALD MONICA, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-2859

JEAN ELISSAINT v.
UNITED STATES, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-4747

Case 2:07-cv-00445-MMB Document 19 Filed 01/14/08 Page 2 of 20

MEMORANDUM AND ORDER

Baylson, J.

January 11, 2008

I. Introduction

In the first five cases listed above, the Complaints have been filed against various

government agencies, officials and employees, but principally, the United States Citizenship and

Immigration Service (“USCIS”) and the Federal Bureau of Investigation (“FBI”), with five

Plaintiffs alleging improper and unnecessary delays as they seek to become naturalized United

States citizens pursuant to 8 U.S.C. § 1421 et. seq. In the last case, the Plaintiff makes the same

allegations, but he seeks a change of status pursuant 8 U.S.C. § 1255, specifically seeking a

“green card.” In Mocanu and Cusumano, the Court has denied the government’s Motion to

Dismiss, has set a pretrial schedule, and issued a Memorandum dated December 21, 2007,

expressing concern at the procedural delays that have motivated the filing of these cases. In

Barikbin, Zhang, and Newton, government Motions to Dismiss and/or for Summary Judgment

are pending.

The Court held a hearing on all of these cases, except Zhang and Newton, on January 8,

2008. Counsel for the United States and all the Plaintiffs in those cases, except Victor Mocanu,

were present.

At the hearing, I expressed concern about briefings in these cases filed by the U.S.

Attorney’s Office which failed to discuss or even mention recent, on-point decisions rendered by

other judges of this Court. Virginia Gibson, Esquire, counsel for the Defendants at the hearing,

and the esteemed Chief of the Civil Division of the U.S. Attorney’s Office, suggested that such

oversights were unintentional and would be remedied in the future.

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In view of the large number of cases with similar legal issues in this Court, and before
different judges of this Court, I recommended that the government provide a periodic update of
decisions by members of this Court to all the judges who have these cases. Attached to this
Memorandum and Order is a chart listing the decisions with which I am familiar at this time, the
assigned judge, a summary and selected quotations. This Memorandum will outline my
preliminary views of the issues presented by these cases, to guide the parties for further
proceedings.
II. Summary of the Law
In one of its briefs, the government has accurately summarized the applicable law
pertaining to naturalization.
The Supreme Court noted in INS v. Pangilinan, 486 U.S. 875 (1988), that a person seeking to acquire rights as a citizen “can rightfully obtain them only upon terms and conditions specified by Congress,” id. at 884, quoting United States v. Ginsberg, 243 U.S. 472, 474 (1917). Thus, a person who has been lawfully admitted to the United States for permanent residence may become a citizen, subject to the requirement that he or she establish continuous residence in the United States in the five years preceding the filing of the application and make a showing of good moral character. 8 U.S.C. § 1427(a).
Second, the statute and pertinent regulations provide for a specific process by which an application for naturalization is adjudicated. This consists of the following:
(a) The applicant must complete and submit an application for naturalization (N-400), along with the required fee. 8 U.S.C. § 1445(a); 8 C.F.R. §’s 316.4, 334.2. In addition, the applicant must submit a set of fingerprints, provide information pertinent to his or her good moral character, and tender a complete account of any criminal background;
(b) The C.I.S. initiates a three-tiered background investigation of
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the applicant, including (although not confined to) all relevant C.I.S. and police data. 8 U.S.C. § 1446; 8 C.F.R. § 335.1; (c) The applicant is scheduled for an examination by a designated naturalization officer who has the discretion to grant or deny the application. 8 U.S.C. § 1446(b); 8 C.F.R. § 335.2; (d) The application is decided. If it is denied, the applicant may, within 180 days, request an administrative hearing before a senior immigration officer. 8 U.S.C. § 1447(a); 8 C.F.R. § 335.2. If denied again, and having exhausted his or her administrative remedies, the application may seek de novo judicial review in a United States district court. 8 U.S.C. § 1410(c); 8 C.F.R. § 335.9(b-d); or (e) If approved, the applicant is required to take the oath of allegiance in order to become a citizen. 8 U.S.C. § 1448(a); 8 C.F.R. § 337.1, et seq. See Damra v. Chertoff, 2006 WL 1786246 (N.D. Ohio) at *1 (discussing process). For individuals seeking an “adjustment of status,” the process differs. Plaintiff Elissaint seeks to adjust his status pursuant to section 245 of the Immigration and Nationality Act (8 U.S.C. § 1255). Section 245 of the Act, entitled “Adjustment of Status of Nonimmigrant to that of Person Admitted for Permanent Residence,” provides for processes by which an alien with an immigrant visa may become a lawful permanent resident (LPR). The Section is rather long, with different subsections setting forth different standards and procedures for the adjustment of status, depending, for example, on whether the alien is the fiancé(e) of a citizen, see 8 U.S.C. § 1255(d), married to a citizen, see 8 U.S.C. § 1255(e), a “special immigrant”, see 8 U.S.C. §§ 1255(g)(h), or the victim of trafficking, see 8 U.S.C. § 1255(l). Plaintiff Elissaint does not specify under which subsection he seeks to become an LPR. It would be unnecessarily complex to describe
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Section 245 in detail in this memorandum. USCIS1 provided a general summary when it published an interim rule amending its regulations under subsection 245(i) (8 U.S.C. § 1255(i)).
Section 245 of the Act (8 U.S.C. 1255) allows the Attorney General, in his discretion, to adjust the status of an alien who has an immigrant visa immediately available to that of a lawful permanent resident (LPR) while the alien remains in the United States in lieu of applying for an immigrant visa at a U.S. consular office abroad, if certain conditions are met. An alien must have been inspected and admitted or paroled, be eligible for an immigrant visa and admissible for permanent residence and, with some exceptions, have maintained lawful nonimmigrant status. The alien must not have engaged in unauthorized employment. 66 Fed. Reg. 16383 (March 26, 2001). The Third Circuit has explained that “Section 245 of the Immigration and Naturalization Act requires the alien to fulfill two requirements, (1) the statutory requirements of inspection and admission, eligibility for an immigrant visa and immediate availability of the visa, and (2) he must convince the Attorney General to exercise favorable discretion in his case.” Ameeriar v. Immigration and Naturalization Service, 438 F.2d 1028, 1030 (3d Cir. 1971). After presentations by counsel at the hearing, it became apparent that these cases are in large part unnecessary and reflect a small scale litigation epidemic, similar to a sudden bout with the measles, and in my opinion, just as readily curable. Congress intended the naturalization application process to be completed without undue delay: “the requirements of [8 U.S.C.] § 1446 and § 1447 thus require the USCIS to make a prompt determination on a naturalization application.” Khdir v. Gonzales, 2007 WL 3308001 (D.Colo. Nov. 6, 2007); see also Ajmal v. Mueller, 2007 WL 2071873, *2 (E.D.Pa. July 17, 2007) (holding that the USCIS has a non-
1 At the time, the agency was known as the Immigration and Naturalization Service, “INS”.
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discretionary duty to adjudicate naturalization applications without unreasonable delay).
Congress certainly did not intend for the process to become tortuous, expensive, mystifying and
delayed, but it has. The government asserts that the required detailed background checks are
necessary, and that the overwhelming number of citizenship applications has led to the delays in
processing. The government submitted lengthy declarations from the FBI and USCIS detailing
the work involved and the difficulty of processing the applications on a timely basis. Congress
has provided for, but not defined, “a full criminal background check.”2
2 See Pub. L. 105-119, Tit. I, 111 Stat. 2240, 2248-49 (1997). By means of this Act (the “Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998"), Congress appropriated sums to various agencies, including USCIS, for the fiscal year ending September 30, 1998. This Act prohibited USCIS from using the appropriated funds for the purpose of conducting criminal background checks and from adjudicating an application for naturalization until the FBI confirmed that a “full criminal background check” had been completed. See Pub. L. No. 105-119, 111 Stat. 2448-49 (Nov. 26, 1997). The Act does not define “full criminal background check.” In March of 1998, apparently in response to the Appropriations Act, USCIS amended its regulations to “require a definitive response from the FBI on the criminal background check on an applicant for naturalization” before USCIS’s final adjudication of a naturalization application. 63 Fed. Reg. 12982 (March 10, 1998). USCIS’s regulations set forth what kind of response from the FBI qualifies as a “definitive response,” see 8 C.F.R. § 335.2(b), and generally describe USCIS’s procedure for examining an applicant for naturalization. However, the regulations also fail to define “full criminal background check”.
The Court does not believe that either Congress or the agency has provided any definition of what is meant by a “full criminal background check,” but notes that the government has submitted a declaration from the FBI and has also provided a Memorandum as to the Status of FBI checks, which seem to indicate that the FBI check in these cases is much broader than just looking into whether an individual has a criminal record. Plaintiffs’ counsel do not dispute the accuracy of these declarations or contest their admissibility. Although careful security checks must be made for individuals seeking entry into the United States, and for applications for permanent legal residency, I fail to see why an individual who has achieved legal permanent residency must undergo a detailed security clearance in order to become a naturalized citizen. Their risk to the security of the United States (if any) certainly does not change when they become a citizen. However, it is very relevant to conduct a criminal background check to determine whether they have had any law enforcement contacts during the period of time they have been legal permanent residents.
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Federal judges are not equipped to micro-manage the naturalization process nor to deny the Executive branch of the government the right to carry out the intent of the legislature for criminal background checks, etc. However, under the Administrative Procedures Act (“APA”), this Court has jurisdiction to compel agency action that has been unlawfully withheld or unreasonably delayed. 5 U.S.C. § 706(1). If an agency is obliged to take certain action, a Court may compel an agency to act, without directing the agency as to what its decision should be. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004). USCIS has a mandatory, nondiscretionary obligation to adjudicate these naturalization applications within a reasonable period of time. Kaplan v. Chertoff, 481 F. Supp. 2d 370, 399 (E.D.Pa. April 16, 2007). With only a few exceptions, most judges in this District have found subject matter jurisdiction and endorsed Judge Robreno’s conclusion in Kaplan: “CIS simply does not possess unfettered discretion to relegate aliens to a state of limbo, leaving them to languish there indefinitely.” Id.
The explanations given by government counsel for the various procedural delays documented in these cases, and the reasons for various acts or omissions by the defendant agencies, are insufficient, contradictory and disputed by Plaintiffs. For reasons stated at the hearing and in this Memorandum, I have reached a tentative conclusion that Defendant USCIS, overwhelmed by these applications, has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution. Although this strategy is often evident in private party damages litigation, it is improper in these cases. Congress did not intend that the path to citizenship be conducted along a detoured and rocky road of litigation. Given the resources of the government and the technology available in our digital world, it is necessary and proper under the APA that I inquire into the availability and reasonableness of
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administrative remedies to these cases. USCIS also appears to favor “retaining” the valuable time of Assistant U.S. Attorneys to
litigate each of these cases. Although this cost may not come out of the USCIS budget, it certainly alleviates USCIS from having to give its administrative attention to these Plaintiffs until and unless they reach a critical point in the litigation.
As one example of the bizarre and Kafka-esque nature of this situation, although the government maintains steadfastly in all of these cases that courts have no jurisdiction to issue mandamus relief, the USCIS, as of January 2005, was using, and sent to Plaintiff Mocanu, a “Notice” on the USCIS letterhead, with the heading “FBI Name Check Expedite Criteria,” which stated:
In order for USCIS to expedite an FBI name check request, one of the following criteria must be established. . . . The Writ of Mandamus - lawsuit pending in federal court. (Emphasis added). It is obviously inconsistent for the government to advise applicants that they could file a writ of mandamus to secure judicial relief, and when such a writ was filed, to then argue that the court has no jurisdiction. If this policy is still in effect, the Court would seriously consider estopping the government from denying existence of subject matter jurisdiction for mandamus relief. However, Ms. Gibson stated that the policy statement noted above, which is part of the pleadings in the Mocanu case, has been withdrawn and that USCIS now uses a more detailed explanation on its website, without suggesting a writ of mandamus. I hasten to add that at least one of the Plaintiffs’ counsel at the hearing asserted that the USCIS website does not operate as described, and does not provide information that is accurate or useful to naturalization applicants
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such as Plaintiffs. Although the government has filed Motions to Dismiss or for Summary Judgment in most
of these cases asserting lack of subject matter jurisdiction, most of the Courts that have considered this issue in this district have found that subject matter jurisdiction exists, at least under the APA. However, I cannot fault the Department of Justice for asserting a lack of subject matter jurisdiction in the absence of any appellate ruling on this point.
The complaints in these cases attest to the difficulty the Plaintiffs have had in getting an accurate status of their applications for naturalization. None of them expect this process to be completed overnight, and none of them deny the importance of appropriate investigation. Indeed, these Plaintiffs appear to be hardworking, law abiding citizens. On the facts they present, we would be privileged to count them among our fellow citizens. III. Procedural Issues
At the hearing, the Court raised an issue as to whether these cases should be maintained as a class action which would obviate individual cases, but require the filing of an amended complaint. The Court believes that similar cases in other districts have been filed as class actions, but there does not appear to be any case in which a court has certified a nationwide class. None of Plaintiffs’ counsel present at the hearing volunteered to undertake the burden of pursuing a class action for understandable reasons. However, the government itself could clearly request class action treatment under Rule 23(b)(1) or (b)(2), Fed. R. Civ. P.
Furthermore, if the government felt strongly that district courts did not have subject matter jurisdiction, it could have filed an application under 28 U.S.C. § 1292(b) for interlocutory appeal in any one of these cases – rather than proceeding with discovery and settlement.
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The Court also inquired of the Judicial Panel on Multidistrict Litigation as to whether this type of case is pending before it for pretrial consolidation pursuant to 28 U.S.C. § 1407, and was advised that there are no such applications pending at this time.
The Defendants could have, and in my view should have, requested our Chief Judge to consolidate all these cases before a single judge, which would expedite final resolution. Instead, the government seems to have preferred to benefit from the delays inherent in the single-judge assignment system. By failing to request consolidation and failing to cite the decisions of other judges of this Court, the government has sought to benefit from the spread of cases among the judges, thus increasing our workload, and not giving us the benefit of the fact that other judges have decided, or are working on, the same issues. The lack of citations of other decisions requires each judge and his or her law clerks to perform their own detailed and lengthy research to find prior precedents, a time-consuming task that would be more facile if the government were forthright in its case citations. I assume that Ms. Gibson’s assurances on this point will be carried forward.
Although independent judicial action is usually a beneficial hallmark of the jurisdiction of district courts, we benefit from the collegial consideration of decisions made by our colleagues, just as appellate judges benefit from decisions made by other appellate judges, in the absence of a controlling precedent by the U.S. Supreme Court.
It appears that in most cases, before a final judgment is reached, the government finds a way to resolve the case, usually by granting the naturalization petition and having the oath administered, so as to make the case moot. The Court was informed that this happened in the
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Bodomov case, which had been listed for the hearing on January 8, 2008.3 Counsel at the hearing related other instances in which similar occurrences had obviated a need for judicial resolution or an appeal.
The entire pattern of the government conduct in these cases, including the way USCIS is handling the matters, and the Justice Department is briefing them, allows the unfortunate inference that judges and the judicial process are being used as tools to further delay, and obfuscation of the real reasons for delay on these petitions. From the above facts, specifically the failure to request class action treatment, MDL consolidation, single district consolidation, interlocutory appeal of the subject matter jurisdiction issue, and the surprising lack of citations, I tentatively conclude that the Defendants’ strategy is to use litigation as part of the delaying process.
As stated at the hearing, I will require that counsel in Mocanu, Cusumano, Barikbin, and Elissaint file cross motions for summary judgment by January 15, 2008.4 The briefs in support need not be lengthy and can include citation or reference to other briefs that have been filed in these other cases in this Court, and arguments may be made in summary fashion. For the reasons stated on the record and above, I have reached the tentative conclusion that summary judgment as to liability will likely be granted in favor of Plaintiffs in these cases under the Administrative Procedures Act. 5 U.S.C. § 706(1).
3 Counsel had been advised that the oath of citizenship was going to be administered on January 9, 2008, thus making the case moot. However, I have since learned that the oath was not administered to Mr. Bodomov, and thus his case is not moot.
4 The parties in Newton and Zhang are also encouraged to file such motions; as they did not have the benefit of attendance at the hearing, however, such motions are suggested but not required by the January 15 deadline.
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IV. Issuance of Preliminary Injunction Because the government is consistently taking steps to make cases moot before a merits
resolution is reached, the Court will temporarily enjoin the government, until the hearing on January 22, 2008, from taking any action to make any of the above-captioned cases moot. This action is necessary because, otherwise, this judicial revolving door will continue from case to case and judge to judge. Other courts will be forced to consider the same issues over and over again, with extensive briefing without final resolution or testing of the government’s position before an appellate court. I will be available if the government wishes to propose a global solution for improvement and transparency in the administrative process. However, since the government apparently favors litigation to resolve these cases, this matter will now proceed under judicial supervision for a judicially approved settlement, or final disposition.
Pursuant to Rule 65, Fed. R. Civ. P., the Court, sua sponte, will enjoin the government from resolving these cases pending the January 22 hearing. Although our judicial system wisely grants parties in most types of litigation the right to settle at any time, these cases are different because they do not seek damages or a specific substantive result. The Court has decided to issue this temporary injunction because Congress intended the naturalization process to be conducted in a fair and expeditious manner; it certainly did not intend for the process to be what it has been alleged, and what appears to be a judicial revolving door.
The government argues continually that the Plaintiffs in these cases want deadlines but that federal judges are not authorized to, and should not, even if they had discretion, set deadlines. Setting deadlines is not my preferred intent. Rather, the purpose should be to encourage, or if necessary, order, USCIS to put in place a transparent, open and user-friendly
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administrative process so that an individual will know easily, quickly and inexpensively, his or her status in the immigration process. Once that has occurred, Congress may feel that USCIS needs additional resources or that some other legislative fix is necessary. Subject to developments at the hearing on January 22, 2008, it appears that the Plaintiffs are entitled to relief under the Administrative Procedure Act. At the hearing on January 22, 2008, the Court will receive testimony and argument on what remedies should be put in place in the event the Court’s final conclusion is the one tentatively stated above.
An appropriate Order follows.
ORDER AND NOW, this 11th day of January, 2008, for the reasons stated in the foregoing Memorandum, it is hereby ORDERED as follows: 1. By January 15, 2008, parties in Mocanu, Cusumano, Barikbin, and Elissaint shall file cross-motions for summary judgment. Parties in Zhang and Newton shall file cross-motions for summary judgment before 10:00 a.m. on January 22, 2008. 2. The Court will hold a hearing on these cross-motions for summary judgment on Tuesday, January 22, 2008 at 10:00 a.m. in Courtroom 3A. As the government requested, it may present evidence as to the appropriate remedy if the Plaintiffs’ motions for summary judgment are granted. 3. Until the hearing on January 22, 2008, pursuant to Rule 65 of the Federal Rules of Civil Procedure and in the interest of justice, Defendants, including but not limited to:
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Emilio Gonzalez, Director, U.S. Citizenship and Immigration Services; Donald Monica, District Director, U.S. Citizenship and Immigration Services, Philadelphia; Evelyn Upchurch, Director, U.S. Citizenship and Immigration Services, Texas Service Center; and officers and employees of the aforementioned agencies; are hereby temporarily ENJOINED in their official capacity from granting, denying or otherwise settling the applications in the above-captioned cases. Defendants may not take any action that would make these cases moot or non-justiciable, until the hearing has been held.
BY THE COURT: s/Michael M. Baylson Michael M. Baylson, U.S.D.J.
O:\CIVIL 07\07-0445 Mocanu v. Mueller\Mocanu 07-445 Cusumano 07-971 Barikbin 07-3223 Eliassaint 07-4747 Memo Order.wpd
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APPENDIX Recent Immigration Cases in the Eastern District of Pennsylvania

CASE NAME

HOLDING

DIRECT QUOTATIONS (italics is summary;
regular font is direct quotation)

Kaplan v. Chertoff, 481 F.Supp.2d 370 (E.D.Pa. 2007)
Robreno, J.

Aliens, humanitarian refugees and asylees who feared losing SSI benefits brought actions against SSA. Govt’s Motion to Dismiss is GRANTED under Due Process Clause; Govt’s Motion is DENIED to extent that Govt seeks to dismiss for lack of subject matter jurisdiction, or claim that Ps failed to state cause of action under Equal Protection Clause or APA.

CIS has a mandatory non-discretionary obligation to adjudicate such applications within a reasonable amount of time. It cannot simply ignore them. The CIS regulations’ use of mandatory rather than permissive language supports this conclusion . . . The majority of courts have thus concluded that ‘the CIS simply does not possess unfettered discretion to relegate aliens to a state of ‘limbo,’ leaving them to languish there indefinitely. This result is explicitly foreclosed by the APA.’ . . . . Here, there appears to be no single statute that, standing alone, expressly imposes a mandatory duty on the FBI to perform background checks . . . . However, it appears clear from a number of Congressional enactments that Congress has imposed a mandatory duty on the FBI to perform background checks in these particular circumstances.

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Cao v. Upchurch, 496 F.Supp.2d 569 (E.D.Pa. 2007) Dalzell, J.
Ajmal v. Mueller, 2007 WL 2071873 (E.D.Pa. July 17, 2007) Kauffman, J.

Aliens brought suit seeking order compelling USCIS and FBI to act on their applications after a four-year delay. Aliens moved for summary judgment, Govt. moved to dismiss. Govt’s Motion to Dismiss is DENIED, aliens’ motion for summary judgment is GRANTED. Court gave defendants one month to adjudicate plaintiffs’ petitions and to inform plaintiffs of the decision.

(Motion to Dismiss) - We agree with the majority view that USCIS has a nondiscretionary duty to adjudicate the application, and therefore a claim under Section 706(a) is cognizable . . . . [b]ecause we find that, in at least some circumstances, the APA supports a cause of action to compel USCIS to reach some decision, defendants’ motion to dismiss must fail. (Summary Judgment) - (discusses how this is a four-year delay, and it is undisputed that recently filed applications are being processed in about six months and that 8 C.F.R. § 103.2(b)(18) requires the district director to determine that a delay is warranted after one year has passed). We find that, while circumstances certainly exist that could justify a delay such as the one plaintiffs have experienced, a four-year delay in the review of an application for legal permanent residence is presumptively unreasonable.

Legal permanent resident filed application for naturalization on Nov. 7, 2005; told case was “pending final background checks” which could delay the process for “undetermined amount of time” Filed suit against USCIS, Homeland Security to compel adjudication. Govt’s Motion to Dismiss for lack of subject matter jurisdiction is DENIED.

The majority of courts considering the matter have held that the mere fact that no definitive deadline has been established for scheduling an examination does not mean that USCIS possesses “unfettered discretion to relegate aliens to a state of limbo, leaving them to languish there indefinitely.” . . . To conclude otherwise would render meaningless the APA’s directive that agencies resolve matters presented to them “within a reasonable time.” 5 U.S.C. § 555(b). Indeed, even in the absence of specific deadlines, the USCIS has a non-discretionary duty to adjudicate applications for naturalization without unreasonable delay . . . Similarly, the FBI has a mandatory, non-discretionary duty to complete criminal background checks within a reasonable period of time.

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Song v. Klapakas, 2007 WL 1101283 (E.D.Pa. April 12, 2007)
Stengel, J.
Elhaouat v. Mueller, 2007 WL 2332488 (E.D.Pa. Aug. 9, 2007) Joyner, J.
Villico v. Monica, 2007 WL 2597344 (E.D.Pa. Sept. 4, 2007) Fullam, J.

Plaintiffs filed writ of mandamus to compel USCIS to adjudicate their applications. Govt. filed motion to dismiss. Court DENIED Govt’s motion, and REMANDED to USCIS to expeditiously adjudicate plaintiffs’ applications (the order states USCIS must complete its adjudication of applications within 30 days, and must promptly notify court and plaintiffs of its decisions. The court retains jurisdiction over the matter during the interim period).

Court found SMJ under APA and mandamus statute.

Lawful permanent resident filed naturalization application on May 17, 2004. Application was pending more than three years, so filed suit against FBI, CIS, Homeland Security. Govt filed a Motion to Dismiss for lack of SMJ.. Court DENIED Govt’s Motion.

Court finds there is SMJ under the APA. In a footnote in discussing the multiple defendants, Court states: “Moreover, the Court would have to dismiss [Petitioner’s] claim against the CIS for unreasonable delay in the processing of his application if the FBI’s failure to complete his background check is the cause for the delay (citing Kaplan). But absent discovery, the Court cannot determine whether the delay in [Petitioner’s] case is ‘attributable’ to the CIS or FBI. Accordingly, it is not proper to dismiss any of the agency defendants at this time.

Italian citizen seeks writ of mandamus to compel CIS to adjudicate his application. Govt. filed a Motion to Dismiss. Court DENIED Govt’s Motion.

Issued one paragraph - simply cites Judge Kauffman’s decision in Ajmal and sees no reason to depart.

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Sharawneh v. Gonzales, 2007 WL 2684250 (E.D.Pa. Sept. 10, 2007)
Dubois, J.

Legal permanent resident seeks an order to compel CIS to adjudicate his application for naturalization. Govt. filed Motion to Dismiss. Court DENIED Govt’s Motion.

Finds jurisdiction under the APA and the mandamus statute. The USCIS regulations make it clear that there is a nondiscretionary duty to adjudicate applications. See 8 C.F.R. 316.14(b)(1)

Ahmed v. Mueller, 2007 WL 2726250 (E.D.Pa. Sept. 14, 2007)
Giles, J.

Plaintiff asks court to conduct hearing on his naturalization application to determine whether he should be schedule for an oath ceremony, or in the alternative requests court direct Govt to schedule interview on his naturalization application and issue decision within 30 days thereafter. Govt filed Motion to Dismiss for lack of subject matter jurisdiction. Court GRANTED Govt’s Motion.

Court determines it does not have jurisdiction to conduct a de novo review of Plaintiff’s application under Section 1421 of the INA. This court finds that the appropriate question . . . is whether defendants have a non-discretionary duty immediately to schedule the interview of an applicant . . . . The USCIS does not have a nondiscretionary duty to conduct an interview of applicant when FBI has not yet completed his background check (since under regulations, interviews can be scheduled only after criminal background check is complete. The Court also states it has no authority to require the FBI to conduct background checks within any specific time frame).

Shaat v. Klapakis, 2007 WL 2768859 (E.D.Pa. Sept. 21, 2007)
Pollak, J.

Lawful permanent resident filed application for naturalization on May 24, 2005. CIS cancelled her scheduled interview; she later received letter saying case was delayed due to background investigation. She filed action against CIS seeking writ of mandamus to compel decision on her application. Govt. filed Motion to Dismiss for lack of SMJ. Court DENIED Govt’s Motion, finding jurisdiction under the mandamus statute (and thus did not reach the question of jurisdiction under the APA).

Distinguishes Ahmed. Acknowledges point in Ahmed that it is unclear if CIS has duty to proceed until FBI does background check - However, the court agrees with Kaplan’s holding that ‘whether the delay is attributable to the FBI or CIS is a factual matter’ going to the merits of the petition rather than the court’s jurisdiction. Court finds that CIS has a duty to adjudicate naturalization applications that is ‘positively commanded and so plainly prescribed as to be free from doubt,’ and because the court finds that [Plaintiff’s] complaint otherwise ‘states nonfrivolous allegations of the existence of the essential elements supporting a mandamus action,’ the court holds that [Petitioner’s] complaint establishes jurisdiction under the mandamus statute.

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Assadzadeh v. Mueller, 2007 WL 3252771 (E.D. Pa. Oct. 31, 2007)
Tucker, J.

Lawful permanent resident filed application for naturalization on June 28, 2005. Received letters saying interview was descheduled “pending final background checks.” Received no notification or interview. Filed suit seeking declaratory judgment for naturalization or writ of mandamus compelling Govt to process his application. Govt. filed Motion to Dismiss. Court GRANTED Motion with respect to declaratory judgment for naturalization, DP and EP claims; Court DENIED Motion with respect to APA violation unreasonable delay and regulatory claims, as well as the mandamus claim.

While the USCIS has some discretion whether to grant or to deny an application for naturalization, it has no discretion on whether to process an application . . . . Similarly, the FBI has a mandatory duty to conduct background checks. Because Defendants have a non-discretionary duty to adjudicate naturalization applications and complete background checks, they must do so in a reasonable amount of time. That the INA does not provide a specified time-frame for doing so is of no import; the APA’s rule of reasonable timeliness applications. 5 U.S.C. § 555(b).

Costa v. Chertoff, et al., No. 07-2467 (Dec. 17, 2007), Mitova v. Chertoff, No. 07-2631
Dubois, J.

In both cases, Petitioner files suit against FBI, USCIS, and Homeland Security to compel action/issue results of background check. Govt moved for Motion to Dismiss in both cases. Court GRANTED Def’s Motion to Dismiss as to the FBI, and DENIED Def’s Motion as to Homeland Security, USCIS. (In Costa, Plaintiff moved for SJ; Court did not address this)

(Costa) - The USCIS has a mandatory, non-discretionary duty [under 8 C.F.R. § 316.14(b)(1); see also Kaplan] to adjudicate applications for naturalization, such as plaintiff’s, within a reasonable period of time - ‘that neither Congress nor the agency has specified the time frame for doing so makes no difference.’ . . . . However, no statute or regulation cited in Kaplan or by plaintiff expressly creates a mandatory duty owed by the FBI to individual naturalization applicants to process background and name checks and forward the results of these checks to the USCIS.

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Mighri v. Gonzales, 2007 WL 4463590 (E.D.Pa. Dec. 19, 2007)
Giles, J.

Permanent resident filed application for naturalization on June 21, 2006. Plaintiff filed complaint, asking court to direct FBI to complete background check on P immediately and to direct Homeland Security to adjudicate P’s naturalization application or schedule an interview on his naturalization application immediately. Govt. filed Motion to Dismiss, which was unopposed. Subsequently, Def’s FBI background check was completed as of Nov. 25, 2007. Court GRANTED Govt’s Motion.

Because the governing statutes and regulations do not require adjudication of an application for naturalization within a certain time frame following notice of the completion of FBI background checks, this court lacks subject matter jurisdiction over Plaintiff’s claim for relief - to schedule immediately Plaintiff’s naturalization interview - under the APA or mandamus statute. The court understands that Plaintiff may be frustrated by the pace at which his application is currently processing. This is insufficient to confer jurisdiction upon this court . . . . The court concludes that there is no non-discretionary duty to schedule an interview on a naturalization application when the FBI has completed its criminal background investigation of the applicant. As such, subject matter jurisdiction does not exist.

Qui v. Chertoff, 486 F.Supp.2d 412 (D.N.J. 2007)
Chesler, J.

Alien filed complaint asking Court to compel USCIS to adjudicate her application for lawful permanent resident status. Govt. filed Motion to Dismiss.

Determined that immigration officials do not have a non-discretionary duty to adjudicate adjustment of status applications.

Court GRANTED Govt’s Motion, finding no SMJ under APA or mandamus statute.

Badier v. Gonzales, 2006 WL 4079085 (N.D.Ga. Dec. 1, 2006)
Martin, J.

Legal permanent resident applied to become a naturalized citizen in Jan. 2001; was denied on moral character ground. Pet’r filed second application for naturalization on July 5, 2005. Govt. filed Motion to Dismiss for lack of SMJ. Court GRANTED Govt’s Motion, finding no jurisdiction under INA, APA or mandamus statute.

The Government often cites this Georgia case in their briefs. Some courts in the E.D.Pa reference this case, but then disagree with it.

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 Case 2:07-cv-00445-MMB Document 28 Filed 02/08/08 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VICTOR MOCANU v.
ROBERT S. MUELLER, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-0445

GUISEPPE CUSUMANO v.
ALBERTO GONZALES, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-0971

MOHAMMAD BARIKBIN v.
UNITED STATES, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-3223

TONGZIAO ZHANG v.
MICHAEL CHERTOFF, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-2718

ANDREW O. NEWTON, M.D. v.
DONALD MONICA, et al.

:

CIVIL ACTION

:

:

:

:

NO. 07-2859

SAID HUSSAIN v.
MICHAEL B. MUKASEY, et al.

:

CIVIL ACTION

:

:

:

:

NO. 08-195

Case 2:07-cv-00445-MMB Document 28 Filed 02/08/08 Page 2 of 38

MEMORANDUM RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

Baylson, J.

February 8, 2008

Plaintiffs in all these cases sue to require the United States Citizenship and Immigration

Services (“USCIS”) to act on their pending applications for naturalization. This is the situation

in many other cases pending before federal judges in this and other districts throughout the

United States. Plaintiffs allege that they are lawful permanent residents (“LPRs”), whose

applications have been pending without any action, whether an approval or rejection, for lengthy

periods, ranging from 30 to 47 months. They contend that this inaction has been caused by

unreasonable delays in the completion of the Federal Bureau of Investigation (“FBI”) name check

program.

For the reasons set forth below, the Court concludes that USCIS’ use of the FBI name

check program has never been authorized by statute or regulation, and its continued application

to Plaintiffs is improper because of the unreasonable delays it has caused in the adjudication of

Plaintiffs’ applications for naturalization. The Court will give USCIS an opportunity to promptly

initiate notice and comment procedures leading to revised regulations.

I. Background Facts

The facts alleged in each of the Complaints, not disputed by the government, are as

follows:

A. Victor Mocanu (C.A. No. 07-445)

Victor Mocanu, a citizen of Romania, alleges that he meets all of the requirements to

become a U.S. Citizen. USCIS received Mr. Mocanu’s Application for Naturalization on March

19, 2004. Plaintiff was fingerprinted shortly thereafter and scheduled to interview with USCIS

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on February 24, 2005. In January 2005, USCIS notified Plaintiff that the February 24, 2005 interview had been canceled “due to unforeseen circumstances." In August 2005, USCIS informed Plaintiff that his case remained unresolved awaiting the results of the FBI background check, which could delay the case for “an undetermined amount of time.” Since then, Plaintiff has heard nothing from USCIS and, nearly two years later, his application remains pending. Pet.’s Compl. at ¶ 15-18.
B. Guiseppe Cusumano (C.A. No. 07-0971) Guiseppe Cusumano was born in Italy on April 14, 1962, and has been a permanent resident of the United States since June 9, 1965. Mr. Cusumano applied to USCIS for citizenship on February 22, 2005. On March 14, 2006, USCIS granted Plaintiff an interview. Plaintiff passed the examinations for naturalization in English, U.S. History, and Government. On June 1, 2006, Plaintiff contacted USCIS to check on the status of his naturalization application and was informed, by letter, that his application was still pending “due to security clearance.” To Plaintiff’s knowledge, USCIS has taken no further action on his application. Pl.’s Pet. for Mandamus and Injunction, at 1-2. C. Mohammed Barikbin (C.A. No. 07-3223) Mohammed Barkibin, along with his wife, Ferideh Barikbin, filed an Application for Naturalization on September 13, 2004. Pet.’s Compl. at ¶ 12. USCIS initially scheduled an interview for Mohammed Barkbin for June 14, 2005, but in May the Agency informed him that the interview had been “descheduled.” Id. In order to find out more information, Mr. Barikbin’s attorney scheduled an Infopass appointment at USCIS in September, 2005. Id. at ¶ 13. He was advised at the meeting that the Barikbins’ security checks had not yet been completed but was
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given no information about the nature of the security problems, the status of the cases, nor the anticipated length of the delay. The Barikbins filed this action on August 7, 2007. Since filing this lawsuit, Ferideh Barikbin’s application for naturalization has been granted and therefore her case is moot. Mohammed Barkbin’s application has been pending for more than 40 months.
Plaintiffs fled from Iran in 1988 and sought asylum in the United States, based upon Plaintiffs’ public opposition to the Islamic government in Iran. They were approved for permanent residence in the United States on December 3, 1999. Mr. Barikbin is the principal owner of five businesses that employ a total of 38 workers. Id. at p.1.
D. Tongxioa Zhang (C.A. No. 07-2718) Tongxioa Zhang filed an Application for Naturalization on July 28, 2005. Plaintiff claims that she made numerous inquiries to USCIS about the status of her application, and has been told that her application has been held up because of some difficulty with her FBI background check. On June 29, 2007, Plaintiff initiated the action before this court. USCIS scheduled an interview for Plaintiff twice, on January 10, 2006 and July 5, 2006, but both interviews were descheduled without explanation. Pl.’s Opp’n. to Mem. of Law in Supp. of Def.’s Mot. to Dismiss 1-6. E. Andrew O. Newton (C.A. No. 07-2859) Dr. Andrew Newton, a citizen of Nigeria, has been a lawful permanent resident of the United States since June 1, 1999. Pet.’s Compl. at ¶ 2. He resides in Harrisburg, PA, with his wife and children. Dr. Newton filed an Application for Naturalization on or about March 18, 2004. Id. at ¶ 1. On or about April 20, 2004, USCIS submitted a request for a background security name check to the FBI. USCIS scheduled an interview for Dr. Newton on February 23,
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2005, but subsequently descheduled the interview “due to unforeseen circumstances.” Id. USCIS has failed to reschedule the interview, or provide Plaintiff with any information regarding why his application has been held up, other than to inform him that his background security check has not been completed by the FBI.
F. Said Hussain (C.A. No. 08-195) Said Hussain filed his Application for Naturalization on March 4, 2005. Pet.’s Compl. at ¶ 2. He asserts that all legal prerequisites to determining his application have been satisfied. Id. at ¶ 20. Mr. Hussain was interviewed by an examination officer on March 6, 2006. Plaintiff sent two letters to USCIS, the first dated September 6, 2006 and the second, labeled “2nd Request,” on October 18, 2006, inquiring about the status of his application and reminding USCIS that, by law, they had 120 days from the date of Plaintiff’s interview to process his application. Id. at ¶ 6. On October 23, 2006, Plaintiff’s counsel received a letter from USCIS District Director Donald Monica stating that Plaintiff’s final background check was pending “outside this office” and would delay his case for an undetermined amount of time. Id. Plaintiff’s attorney made another inquiry to USCIS on July 17, 2007, but received no response. Id. In the first two cases listed above, the Court had denied the government’s Rule 12 Motions to Dismiss for lack of subject matter jurisdiction. See Mocanu v. Mueller, 2007 WL 2916192 (E.D. Pa. Oct. 3, 2007) and Cusumano v. Gonzales, 2007 WL 4390401 (E.D. Pa. Dec. 13, 2007). In the other cases, at the Court’s direction, the parties have filed cross Motions for Summary Judgment after general agreement that there are no factual issues presented that require a trial. See Memoranda and Orders dated December 21, 2007 (2007 WL 4570758), January 11, 2008 (2008 WL 154606) and January 25, 2008 (2008 WL 238443), (reviewing the statutory and
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regulatory framework for adjudicating naturalization petitions and the limited judicial role in this
process, but questioning the government’s litigation strategy and its rationale for basing the delay
in processing applications on national security grounds).
The Court has also held hearings on January 8, 2008 and January 22, 2008, the subject
matter of which is reviewed in the prior Memoranda. As requested, the parties filed further
briefs on February 1, 2008, specifically discussing whether the USCIS’ practice of requiring an
FBI “name check,” as a prerequisite for acting on the Plaintiffs’ naturalization petitions, was
appropriately authorized, particularly in light of the delays caused these Plaintiffs by reason of
the name check process.
II. Contentions
Several of the Plaintiffs have filed a joint brief in which they assert that the name check
requirement is not authorized by law or regulation, and is not necessary, citing various authorities and primarily relying on Aslam v. Mukasey, 2008 WL 220708 (E.D. Va. Jan. 25, 2008).1 In its
1It is important to note that Plaintiffs Cusumano and Hussain have already had their interviews with USCIS, even though their FBI background checks are pending. The government takes the position that the term “examination” in 8 USC § 1447(b) and 8 CFR § 335 refers to the USCIS and FBI’s entire process; however, this Court follows other holdings that the term “examination” in 8 USC § 1447(b) and 8 CFR § 335 refers to the interview. See Al Daraji v. Monica, 2007 WL 2994608, at *3 (E.D. Pa., October 12, 2007). Pursuant to 8 CFR § 335.2(b), the USCIS examination should occur after USCIS receives the results of the name check from the FBI. (“Completion of criminal background checks before examination. The Service will notify applicants for naturalization to appear before a Service officer for initial examination on the naturalization application only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed.”) It therefore appears that USCIS is not following its own regulations. The Court will rule that because more than 120 days have expired since these Plaintiffs’ interviews, the Plaintiffs are entitled to relief forthwith. See 8 USC § 1447(b). See the subsequent opinion in Al Daraji, 2008 WL 183643 (E.D. Pa., Jan. 18, 2008).
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brief, the government makes several arguments2 to support the appropriateness of a “name
check.” First, the government asserts that Congress has required USCIS to obtain the results of a
“full criminal background check” before any application for naturalization may be adjudicated;
this Congressional directive led to the Immigration and Naturalization Service (“INS”)3 adopting
a regulation which requires that a “FBI check of both criminal and administrative records be
completed before any review of the applicant has been scheduled.” 8 C.F.R. § 335.2(b), 63 Fed.
Reg. 12987 (1998).
The government also asserts that a name check is properly included in the “full criminal
background check” and is also part of the inquiry into whether the applicant possesses good
moral character, citing I.N.A. § 316(a)(3), 8 U.S.C. § 1427(a)(3). Furthermore, according to the
government, “such checks also assist in identifying individuals barred from naturalization under
8 U.S.C. § 1424 – information that would not necessarily be provided in only a criminal history
2The government’s latest brief attaches the Second Declaration of Donald Neufeld, supplementing his testimony at the hearing on January 22, 2008, and giving further details concerning the applications for three of the Plaintiffs, Hussain, Zhang and Barikbin, whose case status could not be established in an online inquiry as part of the hearing on January 22, 2008. Mr. Neufeld asserts that even though the information was not readily available for these three individuals online, a further check through the USCIS toll free telephone line would have provided information. Although there may be some factual issues concerning this, the Court does not deem it particularly relevant for present purposes.
The other Declaration submitted by the government is from Gregory B. Smith, Acting Associate Director, National Security and Records Verification, for USCIS. Mr. Smith gives further details about USCIS’ policy for securing name checks, some of which will be discussed below. The Court had expected that Declarations, such as that of Mr. Smith, would have been submitted along with the government’s cross Motions for Summary Judgment, which were previously filed, so that Mr. Smith would have appeared at the hearing on January 22, 2008, for purposes of cross examination, as was done with Mr. Neufeld. Despite this procedural irregularity, however, the Court will consider Mr. Smith’s Declaration as not stating any facts which the Plaintiffs would dispute.
3 INS is the predecessor agency to USCIS.
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check.” The government’s second argument is that the courts should defer to USCIS’ definition of
what constitutes a “full criminal background check.” The government relies on Chevron USA v. NRDC, 467 U.S. 837 (1984) and Vermont Yankee Nuclear Power v. NRDC, 435 U.S. 519 (1978) for this proposition.
The government’s brief cites cases which purportedly “have continuously found that USCIS may construe the FBI name check as either synonymous with the FBI criminal background check or as part of it, and so properly may await name check results before adjudicating applications.” Defs.’s Brief Pursuant to the Court’s Order of January 2, 2008, , 07cv-445, Doc. No. 26 at 6. Each of these cases will be discussed below.
The government’s last argument is that the requirement of an FBI name check for naturalization applicants is reasonable. The Court doubts that it is appropriate to determine this issue as it is presented by the government, because this is not a question for a judge to decide. Rather, the issues presented are whether, under the Administrative Procedure Act (“APA”), (1) since Congress never authorized USCIS to require a “name check,” may USCIS require a name check for each of these Plaintiffs, and continue to delay action on their naturalization applications merely because the name check has not been concluded; and (2) is the delay in acting on Plaintiffs’ applications reasonable. III. FBI’s Name Check Program
When USCIS receives an application for naturalization, it opens a file and automatically requests a name check on the applicant from the FBI. See “Declaration of Evangelia A. Klapakis,” Civ. No. 07-3223, Doc. No. 7, Ex. A (hereinafter “Klapakis Declaration”) ¶ 7.
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USCIS then takes several steps to ensure that the FBI received its request for a name check. Klapakis Declaration, ¶¶ 8-9.
The FBI performs its name checks upon request from USCIS, and upon requests from many other agencies as well. See “Declaration of Michael A. Cannon,” Civ. No. 07-3223, Doc. No. 7, Exh. B (hereinafter “Cannon Declaration”) ¶ 4.4 There are four stages involved in an FBI name check: batch processing, name searching, file review, and dissemination. Cannon Declaration, ¶ 13. For naturalization applicants, batch processing consists of USCIS transferring to the FBI a magnetic tape which contains up to 10,000 names, and FBI checking these names against its Universal Index. Id. At this first stage, approximately 68% of the names produce a “No Record” result, and the FBI informs USCIS of these results. Id. It is implied, although not completely clear, that an applicant’s name check process is complete when a “No Record” result is produced.5
Names that do not produce a “No Record” result at the first stage proceed to the second stage, name searching. Cannon Declaration, ¶ 14. At the name searching stage, an FBI employee enters the applicant’s name into a computer database and searches “different fields and information.” Id. This name searching produces additional “No Record” results; and after the first and second stages of FBI’s name check process, 90% of the name check requests receive
4 This description of the FBI name check program focuses on the program as it pertains to requests for name checks from USCIS.
5 One reason it is not clear whether a “No Record” result definitively concludes the name check process is that the FBI states “[a]dditional searches against the FBI’s Universal Index, additional manual name searches, and/or additional file review of a name check request, depending on the length of time a name check request is pending in the processing queue, may occur periodically during the name check process to ensure that stale information is updated.” (See Cannon Declaration, ¶ 16).
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“No Record” results. Id. The remaining 10% of applicants are viewed as “possibly being the subject of an FBI
record,” and their name check requests continue to the third and fourth stages of FBI’s process, namely file review and dissemination. Cannon Declaration, ¶ 15. The file review can be either electronic or manual, depending on whether the files to be reviewed have been uploaded into the FBI’s electronic record-keeping system. Id. The FBI reviews files for possible derogatory information and, “if appropriate” disseminates that information to USCIS. Cannon Declaration, ¶ 17. The FBI states that less than 1% of USCIS’ name check requests are identified with files that contain possible derogatory information.
In general, FBI performs name checks on a first-come, first-served basis. Cannon Declaration, ¶ 18. However, USCIS may request that certain name checks be expedited. See Cannon Declaration, ¶ 18; USCIS Update, “USCIS Clarifies Criteria to Expedite Name Check,” February 20, 2007, available at http://www.uscis.gov/files/pressrelease/ExpediteNameChk022007.pdf, hereinafter “USCIS Update”). Prior to February 20, 2007, USCIS requested that the FBI expedite a name check request when a federal court petition had been filed in the relevant case. See USCIS Update.
According to USCIS, it may request expedited review if an applicant’s case meets one of the other “approved criteria” including 1) Military deployment; 2) Age-out cases not covered under the Child Status Protection Act, and applications affected by sunset provisions such as diversity visas; 3) Significant and compelling reasons, such as critical medical conditions; and 4) Loss of social security benefits or other subsistence at the discretion of the USCIS District
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Director. Id.6 USCIS may request expedited treatment for up to one hundred names per week. See transcript of hearing, January 22, 2008, p. 57, where Donald Neufeld responded to questions about the expediting process. USCIS generally meets this quota. Id.
As noted above, the government has also submitted a Declaration from Gregory B. Smith, the Acting Associate Director of the National Security and Records Verification Directorate of USCIS, with its most recent brief. See “Declaration of Gregory B. Smith,” Civ. No. 07-445, Doc. No. 26, Ex. A (hereinafter “Smith Declaration”).7 Despite this Court’s specific request for information and briefing on USCIS’s practice of requiring an FBI “name check,” the Smith Declaration does not address when or why USCIS determined that FBI “name checks” were necessary for all applicants. The Smith Declaration does state, somewhat opaquely, that as a result of the tragic events of September 11, 2001, the agency became aware of a need to conduct more rigorous and thorough security checks, and that “[t]his recognition resulted in the implementation of procedures that result in the delay – and in some cases denial – of immigration benefits to certain individuals.” Smith Declaration, ¶ 6. It is unclear to the Court whether the “procedures that result in the delay” are the “name check” procedures or other procedures.
The FBI Name Check is one of several different background checks that USCIS either performs itself or requests the FBI to perform in order to determine whether an individual is a risk to national security or public safety. Smith Declaration, ¶ 5. In addition to a name check, the FBI also conducts a fingerprint check for relevant criminal history records. Id. USCIS itself
6 It is not clear what the other “approved criteria” are, nor what reasons constitute “significant and compelling” reasons.
7 The Smith Declaration refers to “background checks” as well as “security checks,” and it is unclear whether they indicate the same thing.
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conducts both a check of the records in the Department of Homeland Security immigration systems and a check against the U.S. Customs and Border Protection’s Treasury Enforcement Communications System (previously known as IBIS). Id. USCIS may also inquire into an applicant’s foreign travel, income tax obligations, international financial transactions, memberships and associations, and military training and service. Smith Declaration, ¶ 15. None of these procedures appear to be authorized by legislation or regulation. IV. Discussion
A. Legitimacy of USCIS Regulation Regarding Name Checks As a result of the factual materials that are presented in the record, and the briefs of the parties, there is no dispute that the cause of the delay in the disposition of Plaintiffs’ naturalization applications is the delay in the conclusion of the FBI name check, which USCIS has requested as part of its investigation into each of the Plaintiffs’ background. It is therefore necessary, in deciding the reasonableness of the delay in action on Plaintiffs’ naturalization applications, to look first into the origin and legitimacy of the name check requirement. The only instance of Congressional action relevant here is a 1998 appropriations bill using the term “full criminal background check,” barring INS from completing adjudication of an application for naturalization unless it has “received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed, except for those exempted by regulation as of January 1, 1997.” See footnote 3, page 6 of the Mem. of January 11, 2008. Initially, such a provision in a non-codified appropriations bill may be a confirmatory approval of existing practices of requiring a full criminal background check, but it is doubtful
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authority to cite as a mandate for agency action, or authority for the agency to use that phrase as a
Congressional mandate for agency procedures impacting millions of lawful permanent residents
who have applied for naturalization. However, the analysis which follows does not require an
answer to this issue.
INS did go through the notice and comment procedure in adopting 8 C.F.R. § 335.2, on
which the government relies. Because of the government’s extensive reliance on 8 C.F.R. §
335.2, it is necessary to cite the Regulation in full:
(b) Completion of criminal background checks before examination. The service will notify applicants for naturalization to appear before a Service officer for initial examination on the naturalization application only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed. A definitive response that a full criminal background check on an applicant has been completed includes:
(1) Confirmation from the Federal Bureau of Investigation that an applicant does not have an administrative or a criminal record;
(2) Confirmation from the Federal Bureau of Investigation that an applicant has an administrative or a criminal record; or
(3) Confirmation from the Federal Bureau of Investigation that two properly prepared fingerprint cards (Form FD-258) have been determined unclassifiable for the purpose of conducting a criminal background check and have been rejected.
(Emphasis added).
In the supplementary information of 63 Fed. Reg. 12987, the INS explained some of its
policies under the title, “What Changes is the Service Making to its Regulations?” Change
Number 13, entitled “Changes in § 335.2,” states that before the change in policy, the FBI
performed criminal background checks on applicants for naturalization and notified the INS of
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the results of these checks before INS would examine the applicants. The INS changed its policy, stating that it now required a “definitive response” from the FBI, and not simply results, on an applicant’s criminal background check before scheduling an examination. In defining “definitive response,” the INS adds “name check” requirements that never before existed in the naturalization process. A “definitive response” from the FBI, according to the INS, would be that an applicant does or does not have “an administrative or criminal record.”
In order to analyze the government’s argument, it is necessary to understand that USCIS contends the language in § 335.2(b)(1)(2), whether an applicant does or does not have “an administrative or a criminal record,” is justified by the Congressional language, a “full criminal background check,” as authorizing an inquiry of the FBI as to whether an applicant also has an “administrative” record – without any further indication of what the term “administrative” record means in this context. The government’s brief then asserts that the vague term “administrative” ipso facto authorizes the FBI name check procedure. It is crucial to note that the regulation itself does not refer to an FBI name check. These leaps of argument are not supported by any statutory language, principles of statutory construction, principles of administrative law or logic.
There is no showing that the term “administrative” record is synonymous with or inclusive of an FBI name check. Indeed, there is no showing whatsoever as to what an “administrative” record is, as maintained by the FBI. Both the Cannon Declaration and the Supplemental Cannon Declaration refer to “administrative cases” in their descriptions of FBI’s Central Records System, see e.g. Cannon Declaration ¶ 9, but not to “administrative” records. There is no basis to determine how an “administrative case” differs from an “investigative case” and whether that distinction relates to the difference between an administrative and criminal
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record, or how either relate to a “name check.” These different terms create a baffling maze. The FBI name check process has been in existence since the Eisenhower administration.
See Cannon Declaration, ¶ 4 and the FBI website, www.fbi.gov/nationalnamecheck. There is no explanation as to what Congress intended, when it enacted the Appropriations Bill and used the term “full criminal background check.” However, if in fact Congress intended for USCIS to require a “name check,” Congress presumably would have used this term because the “name check” program had been in place for many years, and Congress could have directly referenced a “name check,” but did not do so.
Similarly, in 1998, as discussed below, when INS first published the current regulations which described required background checks, it did not use the term “name check” even though it, as a sister agency of the FBI, then both within the Department of Justice, would have known of the existence of the “name check” program. The record does indicate that, in November 2002, heightened national security concerns prompted a review of USCIS background investigation procedures. See Cannon Declaration, ¶ 23. The review determined that more thorough background investigations were necessary, and that one way to conduct more detailed investigations was use of the FBI “name check” program. Id. It is not completely clear whether “name checks” became necessary for all USCIS applicants starting in November 2002, but that may be one interpretation of the Cannon Declaration.
To summarize, the record does not provide any support for the government’s assertion, that by using the language “full criminal background check,” Congress intended for the broader “name check” investigation, as USCIS suggests in its brief. There is simply no legislation which mandates or authorizes USCIS to employ an FBI name check as a prerequisite for a lawful
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permanent resident to become a naturalized citizen. Further, the regulations which USCIS has enacted itself do not use the term “name check” at all. The closest term that is used in the regulations refers to an “administrative” record of the FBI, without any further definition. There is no basis in the record from which the Court can conclude that the regulatory reference to an FBI “administrative” record is synonymous with an FBI name check. Thus, there is no support that the current USCIS practice of securing an FBI name check as a prerequisite to an LPR becoming a naturalized citizen is authorized by statute or regulation.
Assuming arguendo, the language in the Appropriations Bill at issue, Public Law 105119, authorized INS to adopt regulations that would define the term “full criminal background check,” the record does not show how this Congressional language was transposed into the language actually appearing in the Regulation, § 335.2(b). The record does not show what was meant by the use of the word “administrative” or how that relates to a criminal record. Nor does the record show why the agency did not use the normal meaning of the “criminal background check,” which would mean, in common parlance, whether the person had been arrested or convicted, i.e. a “rap sheet,” which is essentially what Mr. Neufeld described in his testimony as encompassed within the term “fingerprint check.” The record does not show what is the difference between a “administrative” record and a “criminal record.”
B. Role of the FBI The prior Memoranda revealed that the FBI uses its name check program for a wide variety of investigative purposes, including its own criminal and background investigations, and provides this service to many other governmental agencies, federal, state and local. Thus, USCIS is simply one of many “customers” who avail themselves of the FBI name check program. There
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is no reason in this litigation to question the validity or integrity of the FBI name check program. Indeed, the Court does not question that some name checks may take a long time for legitimate reasons. The only inquiry here is the validity of USCIS delaying naturalization applications of Plaintiffs because the FBI name check is taking a long time, which must be seen in the context of the above discussion of USCIS regulations, and the fact, as it appears from the record, all applicants for naturalization have already gone through a prior FBI name check.
The FBI will expedite 100 name checks per week at the request of USCIS.8 See transcript of hearing, January 22, 2008, p. 57. The record does not show how long the completion of the name check takes if USCIS requests that it be expedited.
Because the record shows that the institution of the name check is exclusively under USCIS, and that the FBI merely acts as requested and/or directed by USCIS, it is clear that the FBI should not be a defendant in these cases, and the Court’s Order following this Memorandum will provide for dismissal of the FBI and its officials who have been named as defendants in these cases.
C. Judicial Decisions on this Issue
The government cites to a line of cases in support of its argument that “full criminal
8 To put this figure of 100 name checks per week in context, “[a]s of May 2007, USCIS reported a staggering 329,160 FBI name check cases pending, with approximately 64 percent (211,341) of those cases pending more than 90 days and approximately 32 percent (106,738) pending more than one year.” CIS Ombudsman Annual Report 2007, p. 37, available at http://www.dhs.gov/xlibrary/assets/CISOMB_Annual%20Report_2007.pdf. It is therefore easy to see that expediting a particular name check will do little to reduce the number of long pending name checks. The Ombudsman Report also shows that there are more than 50,000 name checks pending for more than two years, and more than 31,000 pending more than 33 months, as of June 2007.
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background check” can or does mean “name check.” As an initial matter, the Court has a full summary judgment record before it, but the opinions cited by the government were not based on fully developed records. See Wang v. Gonzales, 2008 WL 45492 (D. Kan., January 2, 2008) (Motion to Dismiss or Remand to USCIS); Morral v. Gonzales, 2007 WL 4233069 (D. Minn., Nov. 28, 2007) (Motion to Dismiss or Remand to USCIS); Stepchuk v. Gonzales, 2007 WL 185013 (W.D. Wash., Jan. 18, 2007) (Motion for Reconsideration of Remand to USCIS); Aman v. Gonzales, 2007 WL 2694820 (D. Colo., Sept. 10, 2007) (Motion to Dismiss, Stay, or Remand to USCIS); Shalabi v. Gonzales, 2006 WL 3032413 (E.D. Mo., Oct. 23, 2006) (Motion to Dismiss or Remand to USCIS).9
Indeed, none of the cases cited by the government refer to documents such as the Cannon Declaration, which constitutes a significant part of the record in this case. In ruling on the crossmotions for summary judgment, this Court must evaluate the record before it and does not find the cases cited by the government instructive.
Of the cases cited by the government, Morral, 2007 WL 4233069, does not analyze whether a “full criminal background check” includes a “name check” but simply provides a conclusory description of 8 CFR § 335. Morral, 2007 WL 4233069 at *1 (“8 CFR § 335 sets forth a multiple step background-check process for naturalization applicants, of which the FBI name check is but one step.”) Morral does not address how, given that the regulation does not refer to a “name check”, a “name check” became a required step.
Of the other cases cited by the government, three analyze the text of 8 CFR § 335.2(b)
9 Many of these motions to dismiss were for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1).
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and conclude that USCIS has the authority to require a name check because of the regulation’s use of the term “includes.” See Aman, 2007 WL 2694820 at *3; Stepchuk, 2007 WL 185013 at *2; Shalabi, 2006 WL 3032413 at *2. The government also advances this “includes” argument in its brief. (See Defs.’ Br., Civ. No. 07-445, Doc. No. 26, pp. 6-7.) The argument focuses on the language cited at p. 12-13 above.
According to the argument, because the regulation uses the term “includes,” the list that follows is not exhaustive, and thus, USCIS has the authority to require a “name check” even though the term is not on the list. The problem with this argument is that while the list that follows the term “includes” is not necessarily exhaustive, the list does not set forth the components of a “full criminal background check” but only provides for several kinds of confirmations from the FBI. The first two refer to an administrative or criminal record, and the third refers to “unclassifiable” fingerprint cards, all without further definition or explanation. The “includes” argument would make more sense if, for example, the list following the term “includes” set forth various forms of background checks, such as an IBIS check, to which the “name check” could logically be added. The Court finds the “includes” argument unpersuasive.
The remaining case cited by the government, Wang, 2008 WL 45492, provides a string citation to Aman, Stepchuk, and Shalabi. In relying on these three cases, Wang adopts the “includes” argument, even though Wang itself does not explicitly analyze the use of the term “includes.”
D. Applying Administrative Law Principles to the Facts of Record The Court concludes that USCIS has required FBI name checks under the mistaken
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impression that it has authority, based on its own regulations, to require such checks for LPRs
who seek to become naturalized citizens. Based on a review of the facts and bedrock principles
of administrative agency law, the Court finds that USCIS’s name check requirement has (1)
never been authorized by Congress; (2) is not mentioned or contemplated by any fair reading of
the current USCIS regulations; and (3) may not, without USCIS initiating notice and comment
procedures, be used to delay action on Plaintiffs petitions for naturalization, particularly because
Plaintiffs have already undergone a name check in order to achieve LPR status and will clear the
“fingerprint check” described in the Memorandum of January 25, 2008.10 The fingerprint check
will show whether an LPR who is applying for naturalization has had any contact with the
criminal justice system that would warrant denial of the petition.
There is no desire or intent in the resolution of these cases to interfere with national
security screening, investigation, or protection of our homeland. These are exclusively functions
10On February 4, 2008, USCIS circulated an Interoffice Memorandum issuing revised guidance on the background check procedures for Applications for Adjustment of Status (I-485), Applications for Waiver of Ground of Inadmissibility (I-601), Applications for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act (I-687), and Applications to Adjust Status from Temporary to Permanent Resident Under Section 245A of Public Law 99-603 (I-698) (collectively “Adjustment of Status Applications”). Under the revised guidance, before USCIS can approve Adjustment of Status Applications, it must obtain a definitive FBI fingerprint check and IBIS check. USCIS will still request FBI name checks for Adjustment of Status Applications; however, if the FBI name check is pending for more than 180 days and an Adjustment of Status Application is otherwise approvable, USCIS will approve the Adjustment of Status Application without the results of the name check. If the FBI name check later unveils derogatory or adverse information about an applicant (after the applicant’s Adjustment of Status Application has been approved), USCIS will determine if rescission or removal proceedings are appropriate and warranted.
The revised guidance does not affect Applications for Naturalization (N-400) and thus does not affect the issues in the cases currently before the Court.
The government has filed the Interoffice Memorandum as well as an explanatory email as a supplement to the Administrative Record. (See Civ. No. 07-445, Doc. No. 27).
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of the executive branch of government in which courts should not interfere. At the same time, the Court has an obligation to rule on a contention that an administrative agency has not followed the dictates of the APA. The Court strictly limits its decision in these cases to carrying out the jurisdiction provided under the APA.
This Court finds it problematic that the policy USCIS has adopted - to require not only a criminal background check, but a name check as well - was never subject to the notice and comment procedures of rule-making resulting in new regulations. The government correctly points out that the APA does not require administrative agencies to follow notice and comment procedures in all situations. In promulgating substantive rules, federal administrative agencies are required by the APA to provide notice of the proposed rule and accept and consider comments from interested persons. 5 U.S.C. § 553. “Interpretive” rules are exempt from this requirement under 5 U.S.C. § 553(b)(3)(A). The Act does not provide a definition of “interpretative.”
1. Case Law on Requiring Notice and Comment The leading Third Circuit case is Dia Nav. Co., Ltd. v. Pomeroy, 34 F.3d 1255 (3d Cir. 1994), which outlined the distinction between a legislative rule from an interpretive rule.11 As stated in a more recent case, and one relied on by the government, “[L]egislative rules are subject to the notice and comment requirements of the APA because they ‘work substantive changes in prior regulations,’ or ‘create new law, rights, or duties.’” SBC Inc. v. Federal Communications Com’n, 414 F.3d 486, 497 (3d Cir. 2005) (internal citations omitted). In contrast, “[i]nterpretive
11 See also this Court’s initial discussion of this topic in footnote 7 of the Memorandum dated January 25, 2008 (2008 WL 238443).
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rules constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. Interpretive rules are not intended to alter legal rights, but to state the agency’s view of what existing law requires.” Appalachian States Low-Level Radioactive Waste Com’n v. O’Leary, 93 F.3d 103, 112 (3d Cir. 1996).
In Dia, the Court examined the INS policy of placing upon common carriers the burden of detaining stowaways who have applied for asylum in the United States. The district court had dismissed the carrier’s complaint and denied the carrier’s motion for summary judgment insofar as it sought a judgment declaring that the INS policy on detention of stowaways was invalid for failure to comply with the notice and comment procedures of the APA. The Court of Appeals found both holdings improper, concluding that the INS rules in question were legislative in nature. The Court pointed to the fact that the statute did not set out a standard concerning liability for the costs of detention or the conditions of detention. The Court likened the INS’s adoption of rules in the face “of what is at best statutory ambiguity” to being “no less a legislative decision than would be the adoption of a detailed code concerning the limits and conditions of detention.” Dia, 34 F.3d at 1265. The Court concluded: “[T]he INS has stretched the limits of the [Immigration and Naturalization Act], without the benefit of input from the affected parties, and now contends that these parties are without power to challenge its actions. This plainly amounts to legislative rulemaking.” Id.
The Court in Dia also considered the impact of the INS’s rule. Due to the rule, the carrier had been forced to take on considerable burdens, both economic and practical, in detaining stowaways. The Court concluded that INS was required to have a notice and comment period pursuant to the APA with respect to the detention, and because the extent and conditions
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of carriers’ obligations were unclear, the INS also had to promulgate rules governing these issues and addressing questions concerning the extent and conditions of detention, pursuant to a notice and comment period as well. Id. at 1266. The Court remanded the case to the district court to award a declaratory judgment in favor of the carrier on its claim concerning the INS policy.
In the present case, the government cites SBC, supra, and Gatter v. Veteran’s Administration, 672 F.2d 343 (3d Cir. 1982) in arguing that USCIS’s decision to require an administrative name check was an interpretation of, and not a substantive change to, 8 C.F.R. § 335.2.12 In Gatter, the Third Circuit found that internal publications of the Veterans’ Administration (“VA”) were interpretive, reasoning in part that the publications “have never been intended for or used by anyone other than VA employees.” Id. at 347. But the agency’s action in Gatter differs from that in the present case. In Gatter, the VA’s policies were setting standards for internal use only and were clearly interpretive, which is not the case here. In SBC, the Court of Appeals concluded that the order under review did not modify or substantively change the FCC’s prior interpretation of a regulation, nor did it impose new duties upon regulated parties, and therefore the notice and comment requirements of the APA did not apply. SBC, 414 F.3d at 501. In contrast, in requiring yet another name check in the naturalization process, USCIS has moved beyond an interpretive rule and its policies have severe impact on thousands of LPRs and their families.
2. Impact of USCIS Rules on Plaintiffs
12The government also cites Antonishin v. Keisler, 2007 WL 2788841 (N.D. Ill., Sept. 20, 2007), to support its name check argument, but that case was also limited to deciding a motion to dismiss without a full factual record.
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The Court can only conclude that the USCIS policy to require name checks for all LPRs who want to become naturalized citizens, while undoubtedly well-intended, was a substantive change, which is having a “substantive adverse impact on [the Plaintiffs]” Chao, supra, at 227; see also SBC, supra, at 497. Just as in Dia, USCIS has “stretched the limits” of its authority, “without the benefit of input from the affected parties, and now contends that these parties are without power to challenge its actions.” Dia, supra, at 1265. The Court of Appeals found this was improper, and Dia serves as precedent for this Court’s ruling.
The Court is also influenced by the impact that these name checks have on the applicants. In Dia, the Court of Appeals found the carrier’s considerable burdens, both economic and practical, to play a factor. Those burdens pale in comparison to the burdens inflicted on these Plaintiffs by USCIS’s name check policy. As the Court has stated in previous Memoranda, these Plaintiffs have experienced delays of many months to several years, incurred substantial expenses, and lived with the resulting uncertainty in their personal and professional lives, and immeasurable impact on their families. Furthermore, by delaying actions as to these applicants, law-abiding, tax-paying LPRs are denied the right to vote, which requires citizen status. These delays result in a significant expenditure of public funds. If the USCIS delays the applications of those who potentially pose a threat to homeland security, thus allowing them to remain in this country for an extended period of time, there is an increased risk to national security.
3. USCIS Regulations “As Applied” to Plaintiffs Assuming arguendo the agency’s regulation may be facially valid, settled principles of administrative law also require an inquiry as to whether the regulation is valid “as applied” to these Plaintiffs. Indeed, a flawed notice-and-comment process can render a regulation invalid as
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applied to certain classes of people. In American Iron and Steel Institute v. EPA, 568 F.2d 284 (3d Cir. 1977), steel companies challenged the validity of EPA regulations, arguing that the notice of “proposed rulemaking” (ANPR) had been insufficient indication that the Agency was considering regulations as to the specialty steel segment of the industry. The Third Circuit agreed with the steel companies, finding that the ANPR gave “no indication” that the Agency intended to make any regulations on steel-making. Id. at 291. The Court concluded that while the regulations may have been valid as applied to others, the regulations were invalid “insofar as they appl[ied] to the special steel industry” due to the deficiency of the notice and comment period. Id. at 292. See also Harbert v. Healthcare Services Group, Inc., 391 F.3d 1140, 1153-54 (10th Cir. 2004) (holding that a Department of Labor regulation, while valid as applied to some employees, was invalid as applied to an employee with a fixed work site yet subject to joint employers).
Applying these precedents, the Court concludes that even if the USCIS regulations are facially valid, they present unacceptable situations to Plaintiffs, who have been waiting between 30 and 47 months for action on their naturalization applications, without any explanation other than “name check pending.”
E. Whether the Delay as to these Plaintiffs Is Reasonable As noted in previous Memoranda, the Court has jurisdiction over this matter pursuant to the APA. See 5 U.S.C. § 702 (“Right of Review”); 5 U.S.C. § 706 (“Scope of Review”). Pursuant to the APA, “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of agency action.” 5 U.S.C. § 706.
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Furthermore, the APA “directs an agency ‘to conclude [within a reasonable time] a matter presented to it.’” Int’l Union v. Chao, 361 F.3d 249, 253 (3d Cir. 2004) (quoting 5 U.S.C. § 555(b)), and “[t]he reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
In Thompson v. U.S. Dept. of Labor, 813 F.2d 48 (3d Cir. 1987), the appellant, Thompson, filed a discrimination complaint with a federal agency. The agency put appellant’s claim on hold, and did not immediately reactivate his claim when the possibility arose to do so. Thompson alleged the Department had unreasonably delayed resolution of his case, and requested a judgment compelling the agency to conclude proceedings on his case within a reasonable time. The Third Circuit reversed the summary judgment order of the district court, finding that Thompson had indeed asserted a claim under the APA based on the Department’s failure to conclude the proceedings on his complaint within a reasonable time. The fact that the agency action was not “final” did not alter the Court’s analysis: “The APA ‘give[s] courts authority to review ongoing agency proceedings to ensure that they resolve the questions in issue within a reasonable time.’” Id. at 52, quoting Public Citizen Health Research Group v. Comm’r, Food and Drug Administration, 740 F.2d 21, 32 (D.C. Cir. 1984). See also Heckman v. Olive, 1992 WL 390249, *8 (E.D.N.Y. Dec. 9, 1992).
Thompson held:
The APA directs agencies to conclude matters presented to them “[w]ith due regard for the convenience and necessity of the parties . . . and within a reasonable time.” 5 U.S.C. § 555(b) (1982). It further provides that a “person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant section, is entitled to judicial review thereof.” 5 U.S.C. § 702 (1982 and Supp. III 1985).
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Finally, the APA authorizes actions for a mandatory injunction to enforce compliance with its requirements, 5 U.S.C. § 703 (1982), and requires reviewing courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1) (1982).
In light of the foregoing provisions of the APA, we believe that it authorizes actions in the district court to compel agency action unlawfully withheld or unreasonably delayed. . . .
Thompson v. U.S. Dept. Labor 813 F.2d 48, 52 (3d Cir. 1987).
In Aslam v. Mukasey, 2008 WL 220708 (E.D. Va. Jan. 25, 2008), although
distinguishable in part because the plaintiff was seeking a change in status and not naturalization,
Judge Brinkema’s discussion of the delays caused by the name check program was decided on a
summary judgment record which included factual materials, including a declaration by FBI
Section Chief Cannon, who also supplied a declaration and supplemental declaration in these
cases. Recognizing the primary role that Congress plays in these decisions, Judge Brinkema
nonetheless concluded that she should rule for the plaintiff because under APA principles,
USCIS had unreasonably delayed action on the plaintiff’s petition for change in status, and that
USCIS bore responsibility for the FBI name check program:
CIS maintains that completion of the FBI name check is indispensable to a full and fair adjudication of the application. However, CIS has discretion to select its investigatory methods and it retains the ability to control their pace. See Cannon Decl. ¶ 18 (noting that “USCIS [may] direct[ ] that a name check be handled on an ‘expedited basis’”). Because of the unreasonable delay in the processing of Aslam’s name check and the government’s inability or unwillingness to proffer specific reasons for the delay, the Court finds that CIS must expedite review of this application.
Accordingly, the Court will grant plaintiff relief to the extent that it will order CIS to direct the FBI to expedite its processing of
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Aslam’s name check. If the FBI is unable to complete the name check within 90 days, CIS shall direct the FBI to identify in detail the specific issues that are preventing the completion of the name check. CIS shall then report those reasons to the Court. If the FBI completes the name check within that time period, CIS shall complete its adjudication of Aslam’s application within 60 days of receiving the FBI’s report and file a certification informing the Court of the disposition.
Aslam, 2008 WL 220708 *9.13
Judge Brinkema concludes that under the Administrative Procedure Act, specifically 5
U.S.C. § 706(1):
A reviewing court has the authority to “compel agency action unlawfully withheld or unreasonably delayed.” Aslam may invoke the remedy of mandamus “by proving the co-existence of three elements: (1) the petitioner has shown a clear right to the relief sought; (2) the respondent has a clear duty to do the particular act requested by the petitioner; and (3) no other adequate remedy is available.” Estate of Michael ex rel. Michael v. Lullo, 173 F.3d 503, 512-13 (4th Cir. 1999).
As the government notes, a suit to compel agency action under the APA is conceptually similar to a petition for mandamus based on agency delay. See Nat’l Ass’n of Home Builders v. U.S. Army Corp of Engineers, 417 F.3d 1272, 1280 (D.C. Cir. 2005). To evaluate the merits of Aslam’s complaint, the Court must first determine whether the two agencies–CIS and the FBI–owe a legal duty to Aslam to act on his application and the associated name check. Id. If so, the Court must then determine whether those agencies have “unreasonably delayed” in discharging that duty. Id.
13Judge Brinkema reviewed the considerations under the leading case of Telecommunications Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70 (D.C.Cir. 1984), which requires examination of a number of factors to determine the unreasonableness of a particular delay. The Third Circuit follows a different test, see discussion below.
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Aslam, 2008 WL 220708 *4.
In one of its Motions for Summary Judgment, the government alleges that Plaintiff
Barikbin has not met the six-factor TRAC test set forth for cases of alleged “undue delay.”14
(Def.’s Mot. for Summary Judgment, 07-cv-3223, Doc. No. 7). Yet Plaintiff Barikbin, along
with all other Plaintiffs presently before this Court, do not have the burden of satisfying the
TRAC test. The Court of Appeals for the Third Circuit has adopted reasoning similar, although
not identical, to that of the TRAC decision. In Oil, Chemical & Atomic Workers Union v.
Occupational Safety & Health Administration, 145 F.3d 120 (3d Cir. 1998) (“OCAWU”), the
Third Circuit set forth its own set of factors to evaluate unreasonable agency delay:
First, the Court should ascertain the length of time that has elapsed since the agency came under a duty to act. Second, the reasonableness of the delay should be judged in the context of the statute authorizing the agency’s action. Third, the court should assess the consequences of the agency’s delay. Fourth, the court should consider “any plea of administrative error, administrative inconvenience, practical difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources.”
14TRAC enumerates the following six guiding considerations federal courts have used in determining whether agency delay is unreasonable:
(1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for the rule of reason; (3) delay that might be unreasonable in the sphere of economic regulations are less tolerable when human health and welfare are at stake; (4) the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the nature and extent of the interests prejudiced by the delay; (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. See TRAC, 750 F.2d at 80.
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145 F.3d at 123 (internal citations omitted). Using these factors, a Court’s inquiry into the reasonableness of an agency’s delay under the APA is fact-intensive. Id.
The Third Circuit’s OCAWU factors in evaluating these kinds of naturalization claims were relied on in Daraji v. Monica, 2008 WL 183643, *5 (E.D.Pa. Jan. 18, 2008) (finding insufficient evidence of reasonableness of USCIS’s delay under the OCAWU factors where plaintiff had been interviewed by USCIS, and remanding these matters to USCIS for adjudication of Plaintiffs’ applications within ninety days). Instead of using the OCAWU factors verbatim, however, some district courts have acknowledged the test in their analysis, but concluded that the manner in which a court evaluates unreasonable agency delay falls within the court’s discretion. See Assadzadeh v. Mueller, 2007 WL 3252771 (E.D.Pa. Oct. 31, 2007) (noting the OCAWU factors, but concluding that each case is fact-intensive and within the court’s discretion); Han Cao v. Upchurch, 496 F. Supp.2d 569, 577 (E.D.Pa. 2007) (“There is no particularized standard by which we are directed to determine whether a[n agency] delay is unreasonable.”)
For all the above reasons, this Court finds USCIS’s requirement of the name check for Plaintiffs, and the delay in completing it, is “without observance of procedure required by law.” 5 U.S.C. § 706. V. Relief to Plaintiffs
Ruling in favor of Plaintiffs, but only setting deadlines for USCIS action on their naturalization applications, would be similar to dealing only with the risks posed by the tip of an iceberg, but ignoring the submerged dangers – here, the unreasonable delays that have occurred. These delays are caused by USCIS relying on the inadequately authorized FBI name check
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program, without any transparency or explanation to Plaintiffs of why their applications have been pending for some 30 to 47 months.
Another apt metaphor is the screaming two-year-old child who can be quickly appeased by giving in to demands, but doing so frequently only causes more serious, long-term problems as the child grows older. The Court has determined that it is necessary and appropriate to require USCIS to address the delay by revising its regulations, which is accomplished by initiating the notice and comment rule-making procedure.
When a government agency acts improperly, the Court has broad discretion in designing an appropriate remedy suiting the needs of the plaintiffs before it. Armstead v. U.S. Dept. of Housing and Urban Development, 815 F.2d 278, 283 (3d Cir. 1987). It is clear that a district court has power to craft remedial action specific to a given factual situation. United Steelworkers of America, AFL-CIO v. Pendergrass, 819 F.2d 1263, 1270 (1987) (directing Secretary to publish a hazard communication standard applicable to all workers covered by the Occupational Safety and Health Act within 60 days of the Order based on broad powers granted to the Court to compel agency action under the APA, 5 U.S.C. § 706(1) and 28 U.S.C. § 1651(a)).
In both Armstead and Pendergrass, the Circuit faced improper agency action contrary to authorization, and approved remedial district court relief specific to and appropriate for the problems faced. This Court attempts to do the same, but no more. It is not the Court’s function or intent to preclude USCIS from using FBI name checks, or to otherwise meddle into USCIS decision-making.
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In determining what relief to give these Plaintiffs under the above principles, it is important that the Court tread carefully because of the legitimate national security concerns under which the Defendants must operate, and because Courts are not equipped to micro-manage the naturalization process and thus should not unduly interfere with the operation of an important agency of the federal government.
The Court feels strongly that these Plaintiffs deserve relief that will promptly lead to adjudication of their naturalization petitions. As many other district court judges have concluded, it is simply unacceptable to require an LPR to wait several years for action on a naturalization petition. Plaintiffs have demonstrated that there must be some improvement in the underlying USCIS regulatory framework, so that the name check program will be appropriately authorized, accurately described, fairly administered, and concluded without reasonable delay.
The other problem with giving USCIS a deadline for action regarding these Plaintiffs is that such an order would have predictable but unfair results: USCIS would obtain expedited treatment from the FBI for these Plaintiffs, and other applicants would be placed behind Plaintiffs in line. This “squeaky wheel” solution only allows one applicant to “pass Go” at the expense of another applicant who will be moved several spaces backward (without notice). One reason for the Court requiring that USCIS institute a notice and comment procedure in order to continue the FBI name check program as to these Plaintiffs is to increase the transparency of the process. This does not require revealing confidential information or national security precautions. However, in doing so, USCIS should examine several issues, and some of these are mentioned in the Ombudsman Report:
1. Why is an FBI name check required for an LPR who has already undergone at -32-

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least one and often two prior name checks?15
2. Why is a check of the criminal background insufficient for an LPR who has already passed an FBI name check?
3. Should USCIS use risk management principles and consider the cost/benefit analysis of spending many millions of dollars for repetitive FBI name checks for all naturalization applicants, considering that the act of naturalizing an LPR itself neither increases nor decreases our national security?
4. Would Congressional hearings and increased appropriations for USCIS security procedures be appropriate?
5. How can more information about delay be provided to applicants whose name checks require more than the usual time to process?
6. Is the USCIS litigation strategy, as described in prior Memoranda, appropriate, considering the costs and burdens it places on naturalization applicants and their families, the U.S. Attorney’s Offices and the many district court judges who have been faced with essentially identical issues?16
7. Are the delays themselves dangerous to our security?
15The government’s brief asserts the Court’s January 22, 2008 Memorandum was in error in stating that a name check is required for every visa applicant.
16The Court repeats its prior observation that these cases would appear appropriate for consideration by the Panel on Multidistrict Litigation pursuant to 28 U.S.C. § 1407, and the Clerk is directed to send a copy of this Memorandum to the Panel. Also, it is still not clear why the government has not moved for class action treatment so that the legal issues which appear in virtually every one of these cases, i.e., subject matter jurisdiction, availability of remedial action, and validity of the FBI name check, can be resolved on a class-wide basis.
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Of great concern is that there is no way of knowing, from the information on the record, whether the name check process, as applied to these Plaintiffs, has been held up because of some truly sensitive national security concern, or because of some bureaucratic delay in securing the appropriate files, or because overloaded FBI personnel have not had the opportunity to address the pertinent name check request.
The Court believes that a fair, albeit interim, resolution of these cases would be advanced if the following were to occur:
1. Within thirty (30) days USCIS shall provide to Plaintiffs or their counsel accurate reason(s) as to why their FBI name check has not been completed, but if appropriate, this information may be submitted to the Court in camera.
2. The Court will enjoin USCIS from using the FBI name check program as a factor in the decision making as to these Plaintiffs unless within thirty (30) days, USCIS has initiated a notice and comment procedure, pursuant to the APA, concerning its use of the FBI name check procedure.
3. The Court will require the parties to file a report no later than March 14, 2008, setting forth their position on these requirements. USCIS shall indicate, assuming it is prepared to initiate notice and comment procedures, how quickly they can be completed including adoption of new regulations. Plaintiffs may request other additional relief they should receive pending further administrative outcomes.17
17 There is precedent for a court to set time frames for agency compliance, see National Treasury Employees Union v. Newman, 768 F. Supp. 8 (D. D.C. 1991), and also requiring counsel to submit periodic reports on its compliance with court orders. From the beginning of these proceedings, the Court has urged counsel for USCIS to consider an
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Case 2:07-cv-00445-MMB Document 28 Filed 02/08/08 Page 35 of 38 4. In view of the fact that the Court can retain jurisdiction over the remedial action being required, even if some or all of the present Plaintiffs’ petitions are adjudicated, the Court will lift the injunction against USCIS proceeding with the adjudication of the Plaintiffs’ naturalization petitions. An appropriate Order follows.
administrative global solution to these problems, rather than the case-by-case litigation, with the repetitive Motions to Dismiss for lack of subject matter jurisdiction, and the government’s practice of resolving these cases before they reach trial by finally expediting a decision for those naturalization applicants who have gone to the trouble and expense of filing lawsuits.
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Case 2:07-cv-00445-MMB Document 28 Filed 02/08/08 Page 36 of 38
ORDER AND NOW, this 8th day of February, 2008, based on the foregoing Memorandum, it is hereby ORDERED as follows: 1. The Motions for Summary Judgment of Plaintiffs and Defendants are GRANTED in part and DENIED in part.
a. Mocanu, 07-cv-0445, Government’s Motion for Summary Judgment (Doc. No. 20) and Plaintiff’s Motion for Summary Judgment (Doc. No. 18);
b. Cusumano, 07-cv-0971, Government’s Motion for Summary Judgment (Doc. No. 17) and Plaintiff’s Motion for Summary Judgment (Doc. No. 14);
c. Barikbin, 07-cv-3223, Government’s Motion for Summary Judgment (Doc. No. 7) and Plaintiff’s Motion for Summary Judgment (Doc. No. 9);
d. Zhang, 07-cv-2718, Government’s Motion for Summary Judgment (Doc. No. 12) and Plaintiff’s Motion for Summary Judgment (Doc. No. 15);
e. Newton, 07-cv-2859, Government’s Motion for Summary Judgment (Doc. No. 7) and Plaintiff’s Motion for Summary Judgment (Doc. No. 8);
f. Hussain, 08-cv-195, Government’s Motion for Summary Judgment (Doc. No. 8) and Plaintiff’s Motion for Summary Judgment (Doc. No. 13).
2. The government’s Motions to Dismiss in Zhang (Doc. No. 6, 8) and Newton (Doc. No. 4) are DENIED.
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Case 2:07-cv-00445-MMB Document 28 Filed 02/08/08 Page 37 of 38
3. As to Plaintiffs Cusumano and Hussain, who have already been interviewed, USCIS shall show cause, within fourteen (14) days, why their applications should not be adjudicated forthwith.
4. The FBI, and its Director and employees named as Defendants in these cases, are DISMISSED as Defendants.
5. The Injunction entered in the Order of January 11, 2008, and continued in the Order of January 22, 2008, is VACATED.
6. Within thirty (30) days USCIS shall provide to Plaintiffs or their counsel accurate reason(s) as to why their FBI name check has not been completed, but if appropriate, this information may be submitted to the Court in camera.
7. USCIS is enjoined, pending further Order of Court, from using the FBI name check program as a factor in the decision making as to these Plaintiffs, unless within thirty (30) days, USCIS has initiated a notice and comment procedure, pursuant to the APA, concerning its use of the FBI name check procedure.
8. The parties shall file reports no later March 14, 2008 as to their positions on these requirements.
9. The Court will retain jurisdiction over these cases. 10. The Court will hold a hearing on March 18, 2008 at 10:00 a.m. in Courtroom 3A, at which time the Court will consider arguments and any evidence a party wishes to offer on
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Case 2:07-cv-00445-MMB Document 28 Filed 02/08/08 Page 38 of 38 these remedies, and any other remedies that may be appropriate.18
BY THE COURT: s/Michael M. Baylson Michael M. Baylson, U.S.D.J.
O:\CIVIL 07\07-0445 Mocanu v. Mueller\Mocanu 07-445 - Memo re cross MSJ.wpd
18 Two other cases pending before the undersigned are not included in this Order. In Bodomov v. U.S. Department of Justice, et al., C.A. 07-1482, Plaintiff’s counsel believes that his client will be naturalized promptly and has requested to be excluded from this Order. In Eliassant v. Monica, et al., C.A. 07-4747, Plaintiff’s counsel believes that his client, seeking LPR status, will also receive relief promptly.
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 Case 2:07-cv-00445-MMB Document 35 Filed 03/20/08 Page 1 of 1

 
 Case: 2:07-cv-445 As of: 01/22/2013 05:06 PM EST 1 of 6
CLOSED,STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:07−cv−00445−MMB

MOCANU v. MUELLER et al Assigned to: HONORABLE MICHAEL M. BAYLSON Cause: 8:1446 Petition for Naturalization Hearing
Plaintiff

Date Filed: 02/01/2007 Date Terminated: 03/20/2008 Jury Demand: None Nature of Suit: 890 Other Statutes: Other Statutory Actions Jurisdiction: U.S. Government Defendant

VICTOR MOCANU

represented by DAVID KAPLAN ORLOW, KAPLAN &HOHENSTEIN, LLP 620 CHESTNUT STREET SUITE 656 PHILADELPHIA, PA 19106 215−922−1183 Email: davidkaplan@orlow.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

JAMES J. ORLOW ORLOW &ORLOW PC POBOX 40017 620 CHESTNUT ST., SUITE 656 PHILADELPHIA, PA 19106 215−922−1183 Email: jorlow@orlow.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
ROBERT S. MUELLER DIRECTOR FEDERAL BUREAU OF INVESTIGATIONS TERMINATED: 02/08/2008

represented by COLIN MICHAEL F.X. CHERICO US ATTORNEY'S OFFICE 615 CHESTNUT STREET 13TH FL PHILADELPHIA, PA 19106 215−861−8788 Email: colin.cherico@usdoj.gov TERMINATED: 02/08/2008 LEAD ATTORNEY
ELIZABETH J. STEVENS US DEPT OF JUSTICE POBOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202−616−9752 Fax: 202−233−0397 Email: elizabeth.stevens@usdoj.gov TERMINATED: 02/08/2008 LEAD ATTORNEY
VIRGINIA A. GIBSON HOGAN LOVELLS US LLP 1835 MARKET ST PHILADELPHIA, PA 19103

Case: 2:07-cv-445 As of: 01/22/2013 05:06 PM EST 2 of 6

267−675−4635 Email: virginia.gibson@hoganlovells.com TERMINATED: 02/08/2008

Defendant
UNKNOWN US FEDERAL GOVERNMENT AGENCY OR AGENCIES

represented by COLIN MICHAEL F.X. CHERICO (See above for address) TERMINATED: 02/08/2008 LEAD ATTORNEY

ELIZABETH J. STEVENS (See above for address) TERMINATED: 02/08/2008 LEAD ATTORNEY

VIRGINIA A. GIBSON (See above for address) TERMINATED: 02/08/2008

Defendant
MICHAEL CHERTOFF SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY

represented by COLIN MICHAEL F.X. CHERICO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ELIZABETH J. STEVENS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

VIRGINIA A. GIBSON (See above for address) ATTORNEY TO BE NOTICED

Defendant
EMILIO GONZALEZ DIRECTOR U.S. CITIZENSHIP AND IMMIGRATION SERVICES

represented by COLIN MICHAEL F.X. CHERICO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ELIZABETH J. STEVENS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

VIRGINIA A. GIBSON (See above for address) ATTORNEY TO BE NOTICED

Defendant
DONALD MONICA DISTRICT DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, PHILA.

represented by COLIN MICHAEL F.X. CHERICO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ELIZABETH J. STEVENS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

VIRGINIA A. GIBSON (See above for address)

Case: 2:07-cv-445 As of: 01/22/2013 05:06 PM EST 3 of 6 ATTORNEY TO BE NOTICED

Date Filed 02/01/2007 02/01/2007 02/01/2007 02/02/2007
03/29/2007
06/28/2007 10/04/2007 10/04/2007 11/02/2007 11/16/2007 11/26/2007
11/27/2007
11/27/2007

# Docket Text
1 COMPLAINT against ROBERT S. MUELLER, UNKNOWN US FEDERAL GOVERNMENT AGENCY OR AGENCIES, MICHAEL CHERTOFF, EMILIO GONZALEZ, DONALD MONICA ( Filing fee $ 350 receipt number 936463.), filed by VICTOR MOCANU.(cw, ) (Entered: 02/02/2007)
Summons Issued as to ROBERT S. MUELLER, MICHAEL CHERTOFF, EMILIO GONZALEZ, DONALD MONICA, One Given to U.S. Attorney and Five Forwarded To: Counsel on 2/2/07 (cw, ) (Entered: 02/02/2007)
2 Disclosure Statement Form pursuant to FRCP 7.1 by VICTOR MOCANU.(cw, ) (britb, ). (Entered: 02/02/2007)
3 Acceptance of Service by U.S. Attorney, Re: accepted summons and complaint for ROBERT S. MUELLER on 2/2/2007, answer due 4/3/2007; MICHAEL CHERTOFF on 2/2/2007, answer due 4/3/2007; EMILIO GONZALEZ on 2/2/2007, answer due 4/3/2007; DONALD MONICA on 2/2/2007, answer due 4/3/2007. (kw, ) (britb, ). (Entered: 02/05/2007)
4 MOTION to Dismiss for Lack of Jurisdiction filed by ROBERT S. MUELLER, UNKNOWN US FEDERAL GOVERNMENT AGENCY OR AGENCIES, MICHAEL CHERTOFF, EMILIO GONZALEZ, DONALD MONICA.Memorandum, Certificate of Service.(CHERICO, COLIN) (Entered: 03/29/2007)
5 Petitioner's Opposition to Government Motion to Dismiss filed by VICTOR MOCANU. Certificate of Service. (stb, ) (Entered: 06/28/2007)
6 NOTICE of Hearing:PRETRIAL TELEPHONE CONFERENCE SET FOR 11/14/2007 04:45 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE MICHAEL M. BAYLSON; PLAINTIFF'S COUNSEL TO INITIATE. (Attachments: # 1 # 2)(ltm, ) (Entered: 10/04/2007)
7 MEMORANDUM AND ORDER THAT DEFTS' MOTION TO DISMISS IS DENIED. SIGNED BY JUDGE MICHAEL M. BAYLSON ON 10/3/07. 10/5/07 ENTERED AND COPIES E−MAILED: COPIES FAXED BY CHAMBERS ON 10/4/07.(kw, ) (Entered: 10/05/2007)
8 AMENDED NOTICE of Hearing:PRETRIAL TELEPHONE CONFERENCE SET FOR 11/20/2007 04:30 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE MICHAEL M. BAYLSON; PLAINTIFF'S COUNSEL TO INITIATE.(ltm, ) (Entered: 11/02/2007)
9 ANSWER to Complaint by ROBERT S. MUELLER, UNKNOWN US FEDERAL GOVERNMENT AGENCY OR AGENCIES, MICHAEL CHERTOFF, EMILIO GONZALEZ, DONALD MONICA with Affirmative Defenses, Certificate of Service. (CHERICO, COLIN) Modified on 11/19/2007 (nd). (Entered: 11/16/2007)
10 SCHEDULING ORDER THAT DISCOVERY DUE BY 1/15/2008. JUDGE STRAWBRIDGE WILL CONTACT COUNSEL AS TO WHETHER SETTLEMENT DISCUSSIONS HAVE TAKEN PLACE AND TO SCHEDULE A SETTLEMENT CONFERENCE. DISPOSITIVE MOTIONS DUE BY 1/31/2008. TRIAL POOL SET FOR 3/3/2008.SIGNED BY JUDGE MICHAEL M. BAYLSON ON 11/26/07. 11/27/07 ENTERED AND COPIES FAXED.(rf, ) (Entered: 11/27/2007)
11 NOTICE of Hearing: TELEPHONE CONFERENCE RE: CASE STATUS AND POSSIBLE SETTLEMENT CONFERENCE DATE SET FOR 11/30/2007 09:15 AM BEFORE MAGISTRATE JUDGE DAVID R. STRAWBRIDGE. COUNSEL FOR PLAINTIFF DIRECTED TO INITIATE THE CALL.(lds, ) (Entered: 11/27/2007)
Set/Reset Hearings: TELEPHONE CONFERENCE RE: CASE STATUS AND POSSIBLE SETTLEMENT CONFERENCE DATE SET FOR 11/30/2007 AT

Case: 2:07-cv-445 As of: 01/22/2013 05:06 PM EST 4 of 6

11/29/2007 12/10/2007 12/21/2007 12/21/2007 01/09/2008 01/10/2008 01/11/2008 01/14/2008 01/14/2008
01/15/2008 01/18/2008
01/23/2008 01/24/2008

9:30 AM BEFORE MAGISTRATE JUDGE DAVID R. STRAWBRIDGE. COUNSEL FOR PLAINTIFF DIRECTED TO INITIATE THE CALL.(md) (Entered: 11/28/2007)
12 Minute Entry/Report of Pretrial Telephone Conference for proceedings held before Judge MICHAEL M. BAYLSON on 11/20/07. (kw, ) (Entered: 11/30/2007)
13 Minute Entry, re: A Telephone Conference for proceedings held before MAGISTRATE JUDGE DAVID R. STRAWBRIDGE on 11/30/07. (kw, ) (Entered: 12/11/2007)
14 MEMORANDUM ORDER THAT THE COURT WILL HOLD A PRETRIAL CONFERENCE ON ALL THREE CASES ON 1/8/2008 AT 4:00 P.M. IN COURTROOM 3A. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 12/21/07. 12/24/07 ENTERED AND COPIES E−MAILED.(kw, ) (Entered: 12/24/2007)
Set/Reset Hearings: PRETRIAL CONFERENCE SET FOR 1/8/2008 04:00 PM BEFORE HONORABLE MICHAEL M. BAYLSON. (kw, ) (Entered: 12/26/2007)
15 Minute Entry, re: Argument regarding delaying processing naturalization application held before HONORABLE MICHAEL M. BAYLSON on 1/8/08. Hearing scheduled for 1/22/08. (kw, ) (Entered: 01/09/2008)
16 NOTICE by VICTOR MOCANU Entry of Appearance by David Kaplan for Plaintiff, and Certificate of Service (ORLOW, JAMES) (Entered: 01/10/2008)
17 TRANSCRIPT of Proceedings held on 1/8/08. (ESR) (See Original filing in 07−4747, Paper #10) (kw, ) (Entered: 01/14/2008)
18 MOTION for Summary Judgment filed by VICTOR MOCANU.Plaintiff's Motion for Summary Judgment, Memorandum of Law in Support of his Motion for Summary Judgment, Certificate of Service and Order.(ORLOW, JAMES) (Entered: 01/14/2008)
19 MEMORANDUM AND ORDER THAT BY 1/15/07, PARTIES IN MOCANU, CUSUMANO, BARIKBIN, &ELISSAINT SHALL FILE CROSS−MOTIONS FOR SUMMARY JUDGMENT. PARTIES IN ZHANG &NEWTON SHALL FILE CROSS−MOTIONS FOR SUMMARY JUDGMENT BEFORE 10:00 A.M. ON 1/22/08. THE COURT WILL HOLD A HEARING ON THESE CROSS−MOTIONS FOR SUMMARY JUDGMENT ON 1/22/08 AT 10:00 A.M. IN COURTROOM 3A, ETC. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 1/11/08. 1/15/08 ENTERED AND COPIES E−MAILED: COPIES MAILED AND FAXED BY CHAMBERS ON 1/11/08.(kw, ) (Entered: 01/15/2008)
20 MOTION for Summary Judgment filed by ROBERT S. MUELLER, UNKNOWN US FEDERAL GOVERNMENT AGENCY OR AGENCIES, MICHAEL CHERTOFF, EMILIO GONZALEZ, DONALD MONICA.Memorandum, Certificate of Service.(CHERICO, COLIN) (Entered: 01/15/2008)
21 Supplemental Memorandum of Law In Further Support of the Government's Motion for Summary Judgment With Exhibits A through D Attached by ROBERT S. MUELLER, UNKNOWN US FEDERAL GOVERNMENT AGENCY OR AGENCIES, MICHAEL CHERTOFF, EMILIO GONZALEZ, DONALD MONICA, Certificate of Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (CHERICO, COLIN) Modified on 1/22/2008 (nd). (Entered: 01/18/2008)
22 NOTICE of Appearance by ELIZABETH J. STEVENS on behalf of ROBERT S. MUELLER, UNKNOWN US FEDERAL GOVERNMENT AGENCY OR AGENCIES, MICHAEL CHERTOFF, EMILIO GONZALEZ, DONALD MONICA with Certificate of Service(STEVENS, ELIZABETH) (Entered: 01/23/2008)
23 TRANSCRIPT of joint hearing held on 1/22/08. (ESR) (kw, ) (Entered: 01/25/2008)

Case: 2:07-cv-445 As of: 01/22/2013 05:06 PM EST 5 of 6

01/25/2008
02/01/2008 02/01/2008
02/06/2008 02/08/2008
02/15/2008 02/20/2008 02/21/2008 02/21/2008 02/28/2008

24 MEMORANDUM AND ORDER THAT BRIEFS ARE DUE BY 2/1/08 ON THE ABOVE−STATED LEGAL ISSUES &ALSO ON THE LACK OF AVAILABILITY OF INFORMATION ON THE USCIS WEBSITE. PLFF'S COUNSEL SHOULD COOPERATE &TRY TO FILE A SINGLE BRIEF. THE PRELIMINARY INJUNCTION ENJOINING DEFTS FROM RESOLVING ANY OF THESE CASES IS VACATED AS TO PLFF JEAN ELISSAINT, C.A. #07−4747, BUT CONTINUED AS TO ALL OTHER PLFFS, UNTIL 2/8/08, OR FURTHER ORDER, ETC. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 1/25/08. 1/28/08 ENTERED AND COPIES E−MAILED: COPIES MAILED AND FAXED BY CHAMBERS ON 1/25/08.(kw, ) (Entered: 01/28/2008)
25 Plaintiff's Brief and Statement of Issues in Support of Request for Review filed by VICTOR MOCANU.Plaintiffs Brief and Certificate of Service.(ORLOW, JAMES) (Entered: 02/01/2008)
26 Defendant's Response to Request for Review of Plaintiff re 25 Plaintiff's Brief and Statement of Issues in Support of Request for Review Pursuant to the Court's Order of January 25, 2008, and certificate of service filed by ROBERT S. MUELLER, UNKNOWN US FEDERAL GOVERNMENT AGENCY OR AGENCIES, MICHAEL CHERTOFF, EMILIO GONZALEZ, DONALD MONICA. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(STEVENS, ELIZABETH) (Entered: 02/01/2008)
27 Praecipe to File Certification of Supplement to the Administrative Record (ARCIS) and Memorandum Regarding Revised National Security Adjudication and Reporting Requirements by ROBERT S. MUELLER, UNKNOWN US FEDERAL GOVERNMENT AGENCY OR AGENCIES, MICHAEL CHERTOFF, EMILIO GONZALEZ, DONALD MONICA. (GIBSON, VIRGINIA) (Entered: 02/06/2008)
28 MEMORANDUM AND ORDER THAT THE MOTIONS FOR SUMMARY JUDGMENT ARE GRANTED IN PART AND DENIED IN PART. THE GOVERNMENT'S MOTIONS TO DISMISS ARE DENIED. THE COURT WILL HOLD A HEARING ON 3/18/2008 AT 10:00 AM IN COURTROOM 3A. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 2/8/2008. 2/11/2008 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(mbh, ) (Entered: 02/11/2008)
29 Emergency MOTION to Stay re 28 Memorandum &Opinion,, Set Hearings, Injunctive Order Pending Appeal filed by UNKNOWN US FEDERAL GOVERNMENT AGENCY OR AGENCIES, MICHAEL CHERTOFF, EMILIO GONZALEZ, DONALD MONICA.Certificate of Service.(STEVENS, ELIZABETH) (Entered: 02/15/2008)
30 RESPONSE in Opposition re 29 Emergency MOTION to Stay re 28 Memorandum &Opinion,, Set Hearings, Injunctive Order Pending AppealEmergency MOTION to Stay re 28 Memorandum &Opinion,, Set Hearings, Injunctive Order Pending Appeal filed by VICTOR MOCANU. (ORLOW, JAMES) (Entered: 02/20/2008)
31 NOTICE of Hearing: ORAL ARGUMENT SET FOR 2/27/2008 10:00 AM IN COURTROOM 3A BEFORE HONORABLE MICHAEL M. BAYLSON WITH RESPECT TO THE GOVERNMENT'S EMERGENCY MOTION TO STAY AND THE PLAINTIFFS' OPPOSITION.(ltm, ) (Entered: 02/21/2008)
32 Minute Entry, re: Argument held before HONORABLE MICHAEL M. BAYLSON on 1/22/08. Hearing regarding the delay in processing naturalization applications, et al. Witness called &sworn. Court Reporter: ESR. (kw, ) (Entered: 02/21/2008)
33 MEMORANDUM AND ORDER THAT PARAGRAPHS 7, 8, &10 OF THE COURT'S ORDER DATED 2/8/08 SHALL BE REVISED, ETC. PARTIES SHALL FILE REPORTS NO LATER THAN 3/31/08 AS TO THEIR POSITION. THE COURT WILL SCHEDULE A HEARING AS MAY BE NECESSARY OR APROPRIATE. DEFTS' EMERGENCY MOTION FOR STAY PENDING APPEAL IS DENIED WITHOUT PREJUDICE. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 2/28/08. 2/2808 ENTERED AND COPIES E−MAILED: COPIES MAILED AND FAXED BY CHAMBERS ON

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03/03/2008 03/20/2008

2/27/08.(kw, ) (Entered: 02/28/2008)
34 Minute Entry, re: Argument regarding Court's Order and Government's emergency motion to stay plffs' opposition held before HONORABLE MICHAEL M. BAYLSON on 2/27/08. Motion is denied as moot. Court Reporter: ESR. (kw, ) (Entered: 03/04/2008)
35 STIPULATION AND ORDER TO DISMISS THIS ACTION UNDER RULE 41(a)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE. THE CASE HAS BECOME MOOT BECAUSE MR. MOCANU WAS NATURALIZED ON 3/12/08. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 3/20/08. 3/21/08 ENTERED AND COPIES E−MAILED: COPIES FAXED BY CHAMBERS ON 3/20/08.(kw, ) (Entered: 03/21/2008)