Case 1:06-cv-02518 Document 1 Filed 05/04/2006 Page 1 of 15
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MOHAMED ALSAMMAN, MOHAMMED ALWATIK, AHMAD ASSAF, IIASSAN I3ELGHALI, HASSAN DAMRA, MOHAMMED FARAH, JAMAL HASAN, AHMAD SHAKER KHADDASIl, BASEM SHARAF, and TARIQ SAEED, individually and on behalf of all individuals similarly situakd, and
ARAI3 AMERICAN ACTION NETWORK,
Plainti n~ / Petitioners
v.
ALBERTO R. GONZALES, in his ofliciul capacity Attomey General of the United States; MICHAEL CHERTOFF, in his official capacity as S~crdary ofth~ D~partm~nt of Homcland Security; GERRY HETNAUER, Dislrict Director ol'the Dureau of Citizenship and Immigration Serviccs, Department of Homeland Security; ROBERT S. MUELLER, III, in his official capacity as Director of the
F~d~ral Bur~au ofTnv~stigation,
Defendants / Respondents

CASE NO.:
06CV2518 JUDGE PLUNKETT MAGISTRATE NOLAN
Jury Demand
F I LED
fO MAY - 4: 2001\
UlCHAIL W. DOIIINI
a sw. U.I. DlMMCr COURT

Complaint for Naturalization and Other Relief

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This is a complaintli1r injunctive and other relief. The plaintilTs arc lawful permanent residents of the United States who applied to be naturalized as United States citizens, passed all their interviews and related tests, and have been waiting for more (han 120 days --- some as long as 2 years --- to be scheduled for their oath ceremonies. The plaintiffs are also all Muslim men who come from countries with significant Muslim populations, While they have been wailing for long periods to be sworn in, hundreds of thousands of others people seeking to be naturalized have had their ceremonies scheduled without the same delay. The men are joined by (he Arab American Action Network, a non-profit organization that sought information concerning the delay Muslim men are facing, but has not had that information provided by the government, The indi vidual plaintiffs seek immediate naturalization and an end to the practice of indefinite delay of the naturalization of Muslim men, The Arab American Action Network seeks compliance with the Freedom of Information Act,
Jurisdiction and Venue 1, This court has subject matter jurisdiction pursuant to at least the following statutory provisions: 28 U,S,C, § 1331 (because questions of federal/aw are presented); 8 U,S.c. ~ 1447(b) (granting district court jurisdiction to review naturalization applications); and 42 U.S.c. ~ 2000bb-l(e) (allowing assertion of a violation of a Religious Freedom Restoration Act to be asserted in ajudicial proceeding); 5 U,S.C. § 552 (a) (4)(8) (FOIA requests); and 28 U,S,c. § 1361 (mandamus jurisdiction), 2. Pursuant to 29U.S,C. § 1391, venue is proper in this district on either oCthe following grounds: (l) the plaintiffs reside in this judicial district, the defendants arc officers of the United States or agencies of the United States, and no real property is involved (28 U.S.C, § 1391 (e)(3)); or (2) acts or omissions giving rise to (he action these applications for naturalization
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were processed in part by the Chicago oflk", ofImmigration and Naturalization Services (now
Ih", Bureau of Citizenship and Immigration Services) (28 U.S.c. ~ 1391(e)(2)). The FOIA plaintiff resides in this district, making jurisdiction and venue proper pursuant to 5 U.S.c. § 552
(a) (4)(B).
The Parties Plaintiffs:
3. PlainlifTs MOHAMED ALSAMMAN, MOHAMMED ALWATlK, AllMAD ASSAF, HASSAN BELGHAU, HASSAN DAMRA, MOHAMMED FARAH, JAMAL HASAN, AHMAD SllAKER KHADDASH, BASEM SHARAF, and TARIQ SAEED (the "Named Plaintifls") are lawful permanent residents of the United States who have applied to be naturalized as US. citizens. Class Allegations:
4. Nam",d Plaintiffs MOI-IAMED ALSAMMAN, MOHAMMED ALWATlK, AHMAD ASSAF, HASSAN BELGHALl, HASSAN DAMRA, MOHAMMED FARAH, JAMAL HASAN, AHMAD SHAKER KHADDASH, BASEM SHARAF, and TARIQ SAEED
bring this action on their own hehal rand on hehalf of a class ofother similarly situated persons
pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 5. The Plaintiff Class consists of: All Muslim males, or those males appearing Muslim on the basis ortheir ethnic heritage due to their national origin, who arc or will be lawful permanent residents applying for naturalization to become U.S. citizens, and whose swearing-in
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ceremony has been delayed more than 120 days since the applicant passed his naturalization interview. 6. The Plaintiff Class is so numerous that the joinder of all members is impractical. It is reasonably estimated, on information and belief, that out of the more than 700,000
applications for Naturalization processed annually by the uscrs, approximately 5% arc Muslim
males, and that each year several thousand oCthcse individuals have their swearing in ceremonies delayed significantly longer than others similarly situated.
7. There are questions oClaw and fact common to the class, including: (I) a common factual background of inordinate delay in the scheduling of swearing-in ceremonies; (2) whether the Defendants have violated and are violating the Immigration and Naturalization Act and applicable regulations by discriminating against the Plaintiff Class on account of either their gender, their religion, or both; and (3) whether merilbers of the Plaintiff Class are suffering discrimination (Iue to their religion or perceived religious beliefs.
8. The claims oCNamed PlaintifF; are typical oCthe claims of their class. Named Plaintiffs, like all class members, have been reCused timely naturalization by facing long delays in the naturalization process on account of their gender and religion or perceived religion.
9. Named Plaintil1s arc adequate representatives 01' the class who will adequately and fairly proteclthe interests ofthe class because they seek relief on behalforthe class as a whole and have no interests antagonistic to other members of the class. They are represented by attorneys employed by the Midwest Immigrant & Human Rights Center (MIHRC). the Council on American-Islamic Relations·- Chicago (CAIR-Chicago), as well as David Berten of the Competition Law Ciroup, who are attorneys experienced in federal litigation andlor immigration law and who have litigated complex class action civil rights cases.
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10. In addition, Defendants have acted and lor r~fused to act on grounds generally applicable to the Plaintiff classes, thereby making appropriate final injunctive relief and corrcsponding declaratory relief with resp~ct to the class as a whole, making class certification appropriate und~r Rule 23(b)(2) of (he Federal Rules of Civil Procedure. Oq:anizational Plaintiff;
I I. Plaintiff Arab American Action Network (AAAN) is a nonprofit entity located in Chicago, Illinois that fikd a request undcr the Freedom of Information Act s~eking s(atistical inlilmmtion on all individuals who applied to become naturalized citizens between the period of January 1,2000 and S~pt~mb~r 7, 2005. llcfcndunts;
12. Defendant ALBERTO R. GONZALES is being su~d in his official capacity as the Attorney General of the Unit~d States. H~ is authorized by Congress to naturalize persons as citizens of the United States. II U.S.c. ~ 142(a).
13. Defcndant MICHAEL CHERTOFF is being sued in his official capacity as the S~cretary ofth~ D~partmen( oCHomeiand Security (DHS). As of February 15,2005, Mr. Chertoff has been responsible for th~ administration of the United Stales Citizenship and Immigration Service, which provides certain immigration related servic~s including naturalization. 8 U.S.C. § 1103.
14. Dd",ndant GERRY HEINAUER is (he District Director of USCIS for the Chicago District. As such, he is charged with the duty of adnlinistration and enli.lreemcnt of all the functions, powers, and duties of USCIS in the Chicago District.
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IS. Defendant ROBERT S. MUELLER, III, is thc Director of the Federal Bureau of Investigation. As SLJch hc is charged with conducting background check of applicants for
naturalization when requested to do so by the uscrs.
Facts Regarding Individual Named Plaintiffs 16. Plaintiff MOHAMED ALSAMMAN is a legal pennanenl resident of the United
States, identified by Alien number 076 789 644. Mr. Alsamman passed the uscrs citizenship
examination and interview on June 6, 2004. Currently a Syrian citizen, Mr. Alsamman is a Muslim male. He is a person of good moral character and olherwise meets all the requirements to be natLJralized as set forth in g U.S.c. § 1427. More than 120 days have passed since he passed his citizenship interview.
17. Plaintitf MOHAMMED AL WATlK is a legal pennanent resident of the United
States, identified by Alien number 073 427 360. Mr. Alwatik passed the uscrs citizenship
examination and interview March 1,2004. Currently a Moroccan citizen, Mr. Alwa(ik is a Muslim male. He is a person of good moral character and oiherwise meets all the requirements to be naturalized as set fOJill in8 U.S.c. § 1427. More than 120 days have passed sinec he passed his citizenship interview.
18. PlaintitT AHMAD ASSAF is a legal permanent resident of the United Slales, identified by Alien number 070920090. Mr. Assafpassed the USCIS citizenship examination and interview October 7, 2004. Currently a Jordanian citizen, Mr. Assaf is a Muslim male. He is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since he passed his citizenship interview.
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19. Plaintiff HASSAN BELGHALI is a legal permanent resident of the United Stales, identified by Alien number 047025280. Mr. I3elghali passed the USCIS citizenship examination and interview September 14,2004. Currently a Moroccan citizen, Mr. Bdghali is a Muslim male. lie is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. Morc than 120 days have passed since he passed his citizenship interview.
20. Plaintiff HASSAN DAMRA is a legal pemlanent resident of the United States,
identitlcd by Alien number 073 411 711. Mr. Damra passed the uscrs cilizenship examination
and interview May 10, 2()()4. Currently a Jordanian citizen, Mr. Dmura is a Muslim male. He is a person of good moral character and otherwise meets all the requirements to be naturalized as set I'orth in 8 U.S.c. § 1427. More than 120 days have passed since he passed his citizenship interview. On his own initiative, Mr. Damra requested an FBI fingerprint search on January 31, 2006. On April 1I, 2006, the FBI reported "no arrest record" in response to that request.
21. PlaintitT MOHAMMED FARAH is a legal permanent resident of the United States, identified by Alien number 042 166773. Mr. Farah passed the USCIS citizenship examination and interview April 1'), 2004. CUlTently a Jordanian citizen, Mr. Farah is a Muslim male. He is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.c. § 1427. More than 120 days have passed since he passed his citizenship interview.
22. Plaintiff AHMAD SHAKER KHADDASH is a legal pemlanent resident of the United Stales, identified by Alien number 045-820-993. Mr. Khaddash passed the USCIS citizenship examination and interview April 15, 2004. Currently a Jordanian citizen, Mr. Khaddash is a Muslimlllale:He is a person of good moral character and otherwise meets all the
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requirements to be naturalized as set forth in 8 U.S.c. § 1427. More than 120 days have passed since he passed his citizenship interview. On his own initiative, Mr. Khaddash requested an FBI fingerprint search on January 20,2006. On March 23, 2006, the Fl3I repOlied "no arrest record" in response to that request.
23. Plaintiff TARIQ SAEED is a legal pemmncnt resident of the United States, identificd by Alien number 076-H41-023. Mr. Saccd passed the USCIS citizenship examination and interview August 23, 2004. Currently a Pakistani citizen, Mr. Saeed is a Muslim male. lIe is a person of good moral character and othelwisc meets all the requirements to be naturalized as set fiJrlh in 8 U.S.c. § 1427. More Ihan 120 days have passed sinec he passed his citizenship intervicw.
24. Plaintiff IlASEM SliARAF is a legal pemJanent resident Mthe United States, identified by Alien number 078-288-772. Mr. Sharar passed the USClS citizenship examination and interview September 27, 2005. Currentiy an Egyptian citizen, Mr. Sharafis a Muslim male. He is a person of good moral eharaetcr and otherwise meets all the requirements to be nat.uralized as set I<',rlh in 8 U.S.c. § 1427. More than 120 days havc passcd since he passed his citizenship intervicw.
Facts Relating to Organization Plaintiff 25. The Arab American Action Network (AAAN) filed a request under the Freedom of Information Act on September 7, 2005. The request asked the United States Citizenship and Immigration Services to supply statistical intormation on all individuals who applied to become naturalized citizens between the period of January 1,2000 and tile date of the request. Specifically, the request asked for tile disclosure of the following infomlation, in electronic format: the state of residence of the applicant when the application was filed; the country or
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origin or asserted citizenship or each applicant; age, gender and stated religious belief of the applicant; the number of times the USCIS Interview and USCIS English and Civics Tests were taken; the daters) such tests and interviews were conducted; the dates on which the interview and
relakd te~ts were passed; the uscrs Officer who administered them; the uscrs ontee charged
with reviewing the application; the number, if any, of subsidiary applicants; the status of those citizenship applications - induding those who have had citizenship granted; and (he date the applicant was informed to take the oath of citizenship, if such a date has been provided. It was also requested that ifit were known or could be calculated, to also provide the calculation of the number of days between the date the applicant passed the USCIS Interview and related tests and the date the applicant took the oath of citizenship or, ifno oath had yet heen taken, the date the inforrnation provided in response to this request.
26. 011 September 29, 2005, the uscrs sent a letter to the AAAN, stating that it "had
completed" its search for records responsive to the request "but did not find any." 27. AAAN filed a timely administrative appeal on November 7,2005. 28. As of April 28, 2006, the USCIS has not responded to the administrative appeal. 29. Pursuant to 5 U.S.c. § 552(a)(6)(A)(ii), the USCIS had an obligation to render a
decision within 20 days of the administrative appeal. 30. Pursuant to 5 U.S.C. § 552(a)(6)(C)(i), a requestor under the ForA is deemed to
have exhausted his administrative remedies where the Government has not abided by the time limits set by the statute.
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Facts Common to Counts I-TTl 31. The United States Citizenship and Immigration Services (USClS) is the portion of
the Department or Homeland responsible fOf adjudicating all applications for Naturalization
pursuant to 8 U,S.c. § 1421 et seq, 32, On information and belief, that naturalization for Muslim males (or males from
countries with a signilicant Muslim population) takes significantly longer to complete than i'or other applicants for Naturalization.
33, On infofmation and belief, the purported reason for the delay is that background checks requested by USCIS and perfomlCd by the FBI are not yct completed for the applicants, despite the passage, in many cases, of years of waiting for the background checks to be completed.
Causes of Action Count I; Naturalization Order Pursuant to 8 U.S.c. § 1447(b) 34, Named Plaintiffs, in their individual capacity, reassert and reallege paragraphs I to 33 as if set forth fully here. 35. Pursuant to 8 V,S,c. § 1447(b), eaeh of the Named PlaintitTs seeks a determination by this Court that he meets the requirements for naturalization and is to be naturalized as a U.S. citizen without further delay.
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Count II: Illegal Naturalization Discrimination On the Basis of Gender in Violation of H U.S.c. § 1422
36. Plaintiffs reassert and reallege paragraphs I to 33 as if set forth fully here 37. It is illegal to deny or ahridge the "right ofa person to become a naturalized citizen of the United States" ·'because of sex." 8 U.S.C § 1422 ("The right ofa person to become a naturalized citizen of the United States shall not be denied or abridged because of race or ~ex or because such person is married."); see also U.S. Cons!. Art. I, section 8 (granting Congress the right "To establish a uniform mle of naturalization"). 3K. Named Plaintiffs and others similarly situated have suffered discrimination on the hasis of gender in that their applications lor naturalization have been delayed to a degree not experienced by other similarly situated individuals who are female as opposed to male.
Count III: VIolation of Religious Freedom 39. Plainti ITs reassert and reallege paragraphs I to 33 as if set forth fully here. 40. Through improper implementation ofthe law regarding naturalization on the basis ofthe plaintiffs' religious heliefs, defendants have suhstantially hurdened the Named Plaintiffs and other similarly situated from the exercise of their religious beliefs, in violation of the
* Religious Freedom Restoration Act, 42 U.S.C. 2000bb-l(a), by placing the additional burden
of an unreasonable delay in the approval of naturalization applications of members oCthe Islamic faith as opposed to other religions.
41. There is no compelling governmental interest in the substantial burden placed on the plainti I'f's. In the altemative, to the extent there is a compelling govcmmental interest, the
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burden placed on the plaintiffs is not the least rcstrietivc mcans for furthering any purported ~()mpelling governmental interest
Count IV: Mandamus/Request for Scheduling Swearillc-In Ceremonies 42. Plaintiffs reassert and reallege paragraphs 1 to 33 as if set forth fully herc. 43. Defendants owe Plaintiffs the duty to act upon their applications in a timely manner. Plaintiff~ havc a right to havc their applications adjudicated in a timely manner. 44. Defendants are violating their duty by failing to adjudicate the application in a timely manner, by (a) refusing to make allY decision on cases relating to the Plaintiff Class until background chccks arc completcd, (b) failing to obtain a timely response from the FBI and other federal agencies regarding the background check; (c) tailing to communicate with the FBI and/or other federal agencies regarding long-delayed background checks; (d) refusing to consider other alternatives, such as approving the case subject to rescission ifthc claims of members of the Plaintiff Class regarding the lack of criminal history are not borne out by the background checks, or offering approval conditioned on applicants' agreemcnt to waive objcctions to denaturali/.ation if the background checks cause the Government to wish to examine the applicants further. 45. Plaintiffs have already exhausted all available administrative remedies. 46. Plaintiffs MOHAMED ALSAMMAN, MOHAMMED ALWATTK, AHMAD ASSAF, HASSAN 13ELGllALl, HASSAN DAMRA, MOHAMMED FARAll, JAMAL HASAN, AHMAD SHAKER KHADDASH, BASEM SHARAF, and TARIQ SAEED should have their swearing-in ceremonies performed as soon as practiable.
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COUllt V: Freedom of Information Act Request of Plaintiff AAAN

47. Plainti If Arab-American Action Network reasserts and realleges paragraphs I to 33 as i I'set forth fillly hcre.

48. above.

Plaintiff has sought records under the Freedom ofTnfonnation Act as set forth

49. The Government has responded to Plaintiff's request for records by (a) denying that it possesses any records responsive to the request, and (b) failing to respond in a timely manner to the Plaintiffs administrative appeal.

50. Upon inl(jITnation and belief, uscrs has in its possession and control agency record~ responsive to plaintiffs FOrA request. Plaintiff has a statutory right to the records sought, and there is no legal basis lor USClS's refusal to release them. uscrs's failure to release the requested inl(mnation violates the Freedom oflnformation Act, 5 U.S.c. § 552(a).

Prayer for Relief

Wherefore, plaintiff:s seek the lollowing relief:

A. An order setting an immediate date for naturalization of the plaintiffs;

B. Tile actual naturalization of the plaintiffs by this Court;

C. Entry of judgment in favor of the plaintiffs and against the defcndants finding that the delay in their naturalization constituted improper denial of naturalization on fhe basis of gender, in violation ofS U.S.c. § 1422;

D. An order directing the defendants to abide by the dictates of 8 U.S.c. § 1422;

E. An award of damages ill an amount to be determined;

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F. Declare that defendants' refusal to disclose the records requested by plaintiff AAAN's FOTA request is unlawful;

G. Order defendants to make the requested records available to plaintiff AAAN;

11. Enjoin defendants from refusing to comply with subsequent r"'quests for similar documents; and

I.

An award of costs, as provided by 28 U .S.C.S. § 24l2(a)(1);

.I. An award ol'attomeys fees, as provided by 28 U.S.C.S. § 24l2(d)(1), or 42 U.S.c. § 1988; or 5 U.Sc. § (a)(4)(R); and

K. Such other relief as the Court deems just.

Jury Demand

Plaintiffs demand a jlllY as to all matters subject to resolution by a jury.

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•

Case 1:06-cv-02518 Document 1 Filed 05/04/2006 Page 15 of 15

Filed: May _ , 2006

sa1jJ ,ounei on American-Islamic Relations, Chicago Chapter (CArR-Chicago) 28 East Jackson Boulevard Suite 405 Chicago, illinois 60604 Ph: 312.212.1520 Fax: 312.212.1530
'--D ,~'~~L
David Berten Competition Law Group LLC 120 South State Street Suite 300 Chicago, IL 60603 Ph: 312.629.1900 Fax: 312.629.1988
Charles Roth Midwest immigrant & Human Rights Center 208 S. LaSalle Street Suite 1818 Chicago, IL 60604 Ph: 312.660.1613 Fax: 312.421.0923

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 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

YAN BASHKIN, GAFAAR DAFALLA, NADEEM FAZAL, BORIS GOLDFARB, MOHAMMED KHAN, SOBIA KHAN, LARISA KHANINAYEVA, VLADIMIR KHLYSTOV, DORA REZNIK, ILYA SEREBRENNIKOV, YELENA SEREBRENNIKOVA, and ISMAIL SULEIMAN, individually and on behalf of all individuals similarly situated,
Plaintiffs / Petitioners
v.
MICHAEL MUKASEY, in his official capacity as Attorney General of the United States; MICHAEL CHERTOFF, in his official capacity as Secretary of the Department of Homeland Security; RUTH DOROCHOFF, in her official capacity as Acting District Director of the Bureau of Citizenship and Immigration Services, Department of Homeland Security; ROBERT S. MUELLER, III, in his official capacity as Director of the Federal Bureau of Investigation, The DEPARTMENT OF HOMELAND SECURITY, The UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, and The FEDERAL BUREAU OF INVESTIGATION,
Defendants / Respondents

CASE NO. 06 CV 2518 Judge John F. Grady
Jury Demand

Fourth Amended Complaint for Naturalization and Other Relief This is a complaint for injunctive and other relief. The plaintiffs are lawful permanent residents of the United States who applied to be naturalized as United States citizens, passed all their interviews and related tests, and have been waiting for more than 120 days—some more than 2 years—to have their applications adjudicated. While they have been waiting for long

periods to be sworn in, millions of others seeking to be naturalized have had their ceremonies scheduled without the same delay. The individual plaintiffs seek (1) immediate naturalization, (2) an end to the practice of indefinite delay of the adjudication of naturalization applications, or in the alternative, the implementation of a procedure to allow expedition of their naturalization applicaiton.
Jurisdiction and Venue 1. This court has subject matter jurisdiction pursuant to at least the following statutory provisions: 28 U.S.C. § 1331 (because questions of federal law are presented); 8 U.S.C. § 1447(b) (granting district court jurisdiction to review naturalization applications); and 28 U.S.C. § 1361 (mandamus jurisdiction). 2. Pursuant to 29 U.S.C. § 1391, venue is proper in this district on either of the following grounds: (1) the plaintiffs reside in this judicial district, the defendants are officers of the United States or agencies of the United States, and no real property is involved (28 U.S.C. § 1391(e)(3)); or (2) acts or omissions giving rise to the action these applications for naturalization were processed in part by the Chicago office of Immigration and Naturalization Services (now the Bureau of Citizenship and Immigration Services) (28 U.S.C. § 1391(e)(2)).
Procedural History 3. This case was filed on May 4, 2006, originally listing 9 named plaintiffs and including a claim seeking production of certain information relating to naturalization delays that had not been produced pursuant to a Freedom of Information Act request. The complaint was amended slightly on
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4. The Government moved to dismiss the Complaint. While that motion was pending, the Government produced approximately 3.4 million records from which information about naturalization delays could be determined. After analyzing that information, plaintiffs filed a Second Amended Complaint on January 26, 2007. In connection with this amendment, plaintiffs substituted several new plaintiffs for those whose naturalization applications had been adjudicated while the case was pending. The Government renewed its motion to dismiss.
5. While the Government’s motion was pending, all but one of the then active plaintiffs had their naturalization applications adjudicated. Plaintiffs sought leave to file a Third Amended Complaint adding new plaintiffs in September 2007. The Court granted the plaintiffs’ motion and the Third Amended Complaint was filed on September 19, 2007.
6. On September 20, 2007, the Court ruled on the Government’s motion to dismiss. With regard to the individual claims for naturalization pursuant to 8 U.S.C. § 1447(b), the Court rejected the Government’s argument that the Court lacked jurisdiction over the 8 U.S.C. § 1447(b) and remanded the matter back to the USCIS, without instructions. The Court denied the plaintiffs’ subsequent Rule 59(e) motion to modify or amend the portion of the order declining to provide instructions to the Government. With regard to the putative class allegations, the Court granted the plaintiffs until November 12, 2007 to file an amended complaint. The changes to the complaint include this section on procedural background, factual allegations regarding the policy of “expediting” review of naturalization applications, modifications to Counts I and III, and an alternative prayer for relief allowing delayed applicants to request expedition.1
1 Plaintiffs have reasserted the previously dismissed and unmodified counts here to prevent an argument of waiver in the event of an appeal. The additional material regarding the Government’s expedition policy and the alternative relief requested may also affect the logic of the Court’s analysis dismissing other claims.
3

Plaintiffs:

The Parties

7. Plaintiffs YAN BASHKIN, GAFAAR DAFALLA, NADEEM FAZAL, BORIS GOLDFARB, MOHAMMED KHAN, SOBIA KHAN, LARISA KHANINAYEVA, VLADIMIR KHLYSTOV, DORA REZNIK, ILYA SEREBRENNIKOV, YELENA SEREBRENNIKOVA, and ISMAIL SULEIMAN (the “Named Plaintiffs”) are lawful permanent residents of the United States who have applied to be naturalized as U.S. citizens. For background on each of the Named Plaintiffs is set forth below. 2

Class Allegations:

8. Named Plaintiffs YAN BASHKIN, GAFAAR DAFALLA, NADEEM FAZAL, BORIS GOLDFARB, MOHAMMED KHAN, SOBIA KHAN, LARISA KHANINAYEVA, VLADIMIR KHLYSTOV, DORA REZNIK, ILYA SEREBRENNIKOV, YELENA SEREBRENNIKOVA, and ISMAIL SULEIMAN bring this action on their own behalf and on behalf of a class of other similarly situated persons pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure.

9. The Plaintiff Class consists of:
All persons who are or will be lawful permanent residents applying for naturalization to become U.S. citizens, whose applications are pending in Illinois,

2 Since the amended complaint was filed on September 19, 2007, six Named Plaintiffs who had been waiting to have their applications adjudicated (Sergey Antonishin, Eltayeb Elbolok, Inna Karazsik, Abdi Mohammed, Ashan Raza, and Abram Rozental) have been sworn in as citizens or will be by November 14, 2007. They are not included in this Amended Complaint. It appears that at least the following additional Named Plaintiffs have had their name checks completed by the FBI, in that they have received either a notification to be re-fingerprinted or have had an interview scheduled with USCIS: Yan Bashkin, Boris Goldfarb, Nadeem Fazal, Dora Reznik, Ilya Serebrennikov, and Yelena Serebrennikova and Ismail Suleiman.
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Indiana or Wisconsin, and whose naturalization applications are not adjudicated within 120 days after the date of their initial examination. 10. The Plaintiff Class is so numerous that the joinder of all members is impractical. For example, based on data supplied by the Department of Homeland Security, since April 2001, more than 348,000 naturalization applicants have not had their naturalization application adjudicated within 120 days of the date of their initial examination. A substantial number of these delayed adjudications are or were pending in the Seventh Circuit (Illinois, Indiana, or Wisconsin). 11. As further demonstration of the number of unadjudicated naturalization cases, the data provided by the Department of Homeland Security demonstrates that more than 33,000 naturalization applicants have not had their naturalization application adjudicated within 720 days (i.e, approximately 2 years) of the date of their initial examination. 12. As further demonstration of the number of unadjudicated naturalization cases, an analysis of the U.S. Court’s PACER system suggests that more than 1,000 cases seeking adjudication of naturalization applications have been filed since January 1, 2005. A substantial number of these cases are or were pending in the Seventh Circuit (Illinois, Indiana, or Wisconsin). 13. There are questions of law and fact common to the class, including: a common factual background of inordinate delay in the adjudication of naturalization applications and delay in completing background checks for certain naturalization applicants. 14. The claims of Named Plaintiffs are typical of the claims of their class. Named Plaintiffs, like all class members, have been refused timely adjudication of their naturalization applications.
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15. Named Plaintiffs are adequate representatives of the class who will adequately and fairly protect the interests of the class because they seek relief on behalf of the class as a whole and have no interests antagonistic to other members of the class. They are represented by attorneys employed by the National Immigrant Justice Center (NIJC), the Council on AmericanIslamic Relations – Chicago (CAIR-Chicago), as well as David Berten of the Competition Law Group, who are attorneys experienced in federal litigation and/or immigration law, and who have litigated complex class action civil rights cases.
16. In addition, Defendants have acted or refused to act on grounds generally applicable to the Plaintiff classes, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole, making class certification appropriate under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Defendants:
17. Defendant MICHAEL MUKASEY is being sued in his official capacity as the Attorney General of the United States. He is authorized by Congress to naturalize persons as citizens of the United States. 8 U.S.C. § 142(a).
18. Defendant MICHAEL CHERTOFF is being sued in his official capacity as the Secretary of the Department of Homeland Security (DHS). As of February 15, 2005, Mr. Chertoff has been responsible for the administration of the United States Citizenship and Immigration Service, which provides certain immigration related services including naturalization. 8 U.S.C. § 1103.
19. Defendant RUTH DOROCHOFF is being sued in her official capacity as the District Director of USCIS for the Chicago District. As such, she is charged with the duty of
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administration and enforcement of all the functions, powers, and duties of USCIS in the Chicago District.
20. Defendant ROBERT S. MUELLER, III, is being sued in his official capacity as the Director of the Federal Bureau of Investigation. As such, he is charged with conducting background checks of applicants for naturalization when requested to do so by the USCIS.
21. Defendant DEPARTMENT OF HOMELAND SECURITY is the Agency with overall responsibility for applications for Naturalization, including coordinating the timely completion of background checks with the Federal Bureau of Investigation.
22. Defendant UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES is a bureau within the Department of Homeland Security, and is the Agency with direct responsibility for adjudicating naturalization applications.
23. Defendant FEDERAL BUREAU OF INVESTIGATION is the Agency responsible for conducting background checks on applicants for Naturalization.
Facts Regarding Individual Named Plaintiffs 24. Plaintiff YAN BASHKIN is a legal permanent resident of the United States, identified by Alien number 713 61 849. Ms. Bashkin passed the USCIS citizenship examination and interview June 22, 2004. Currently a citizen of Russia, Ms. Bashkin is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since she passed her citizenship interview. 25. Plaintiff GAFAAR DAFALLA a legal permanent resident of the United States, identified by Alien number 026 705 715. Mr. Dafalla passed the USCIS citizenship examination and interview October 11, 2005. Currently a citizen of Sudan, Mr. Dafalla is a person of good
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moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since he passed his citizenship interview.
26. Plaintiff NADEEM FAZAL is a legal permanent resident of the United States, identified by Alien number 076 843 839. Mr. Fazal passed the USCIS citizenship examination and interview on April 26, 2004. Currently a citizen of Pakistan, Mr. Fazal is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since he passed his citizenship interview.
27. Plaintiff BORIS GOLDFARB is a legal permanent resident of the United States, identified by Alien number 713 21 781. Mr. Goldfarb passed the USCIS citizenship examination and interview August 25, 2004. Currently a citizen of Russia, Mr. Goldfarb is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since he passed his citizenship interview.
28. Plaintiff MOHAMMED KHAN is a legal permanent resident of the United States, identified by Alien number 075 262 465. Mr. Khan passed the USCIS citizenship examination and interview on May 14, 2003. Currently a citizen of Pakistan, Mr. Khan is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since he passed his citizenship interview.
29. Plaintiff SOBIA KHAN is a legal permanent resident of the United States, identified by Alien number 055 524 497. Ms. Khan passed the USCIS citizenship examination and interview on November 10, 2005. Currently a Pakistani citizen, Ms. Khan is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since she passed her citizenship interview.
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30. Plaintiff LARISA KHANINAYEVA is a legal permanent resident of the United States, identified by Alien number 713 92 069 . Ms. Karasik passed the USCIS citizenship examination and interview on July 28, 2005. Currently a citizen of Russia, Ms. Karasik is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since she passed her citizenship interview.
31. Plaintiff VLADIMIR KHLYSTOV is a legal permanent resident of the United States, identified by Alien number 750 20 318. Mr. Khlystov passed the USCIS citizenship examination and interview on May 24, 2005. Currently a citizen of Russia, Mr. Khlystov is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since he passed his citizenship interview.
32. Plaintiff DORA REZNIK is a legal permanent resident of the United States, identified by Alien number 712 86 764 . Ms. Reznik passed the USCIS citizenship examination and interview on November 30, 2004. Currently a citizen of Russia, Ms. Reznik is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since she passed her citizenship interview.
33. Plaintiff ILYA SEREBRENNIKOV is a legal permanent resident of the United States, identified by Alien number 713 44 912. Ms. Serebrennikov passed the USCIS citizenship examination and interview on December 16, 2005. Currently a citizen of Russia, Ms. Sererennikov is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since she passed her citizenship interview.
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34. Plaintiff YELENA SEREBRENNIKOVA is a legal permanent resident of the United States, identified by Alien number 713 44 911. Ms. Serebrennikov passed the USCIS citizenship examination and interview on December 16, 2005. Currently a citizen of Russia, Ms. Serebrennikova is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since she passed her citizenship interview.
35. Plaintiff ISMAIL SULEIMAN is a legal permanent resident of the United States, identified by Alien number 077 640 746. Mr. Suleiman passed the USCIS citizenship examination and interview on January 05, 2006. Currently a Jordanian citizen, Mr. Suleiman is a person of good moral character and otherwise meets all the requirements to be naturalized as set forth in 8 U.S.C. § 1427. More than 120 days have passed since he passed his citizenship interview.
36. Through the course of this litigation, Plaintiff’s counsel became aware of at least 250 other individuals, not named plaintiffs, who fell within the proposed Class. Facts Common to Counts I to VI
37. The United States Citizenship and Immigration Services (USCIS) is the portion of the Department of Homeland Security responsible for adjudicating all applications for Naturalization pursuant to 8 U.S.C. § 1421 et seq.
38. Section Six of the Administrative Procedure Act (“APA”) directs agencies to conclude matters presented to them “within a reasonable time.” 5 U.S.C. § 555(b). When an agency fails to conclude a matter presented to it with a reasonable time, the APA grants judicial
10

review to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
39. A person seeking to be naturalized starts the process by filing an application (called an N-400). When the application is received (the filing date), it starts a review process by the USCIS.
40. As part of the review, USCIS conducts an initial in-person examination of each applicant seeking to be naturalized. Among other things, the examiner assesses the applicant’s command of English and addresses issues of concern to USCIS.
41. The initial examination date also starts a 120-day time period running. By rule, a decision to grant or deny the naturalization application must take place “at the time of the initial examination or within 120 days after the date of the initial examination.” 8 C.F.R. § 335.3(a). If USCIS fails to adjudicate the application within the 120-day period, the applicant can file an action in District Court to have his or her application adjudicated. 8 U.S.C. § 1447(b).
42. The 120-day period between the initial examination and adjudication is a reasonable period of time for the Defendants to adjudicate naturalization applications. Data produced by DHS confirms that the Defendants adjudicate more than 50% of all cases on the same day as the initial examination and that approximately 90% are adjudicated within 120 days of the initial examination.
43. Section 1571 of Title 8 of the United States Codes states that “it is the sense of Congress that the processing of an immigration benefit application [including naturalization] should be completed not later than 180 days after the initial filing of the application.”
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44. DHS has recognized that completing the review process within 6 months is a reasonable amount of time: “By the end of 2004, the Service expects to reach a national processing time of 6 months or less for all applications or petitions.” The Existence and Extent of Delays in Adjudicating Naturalization Applications
45. The Department of Homeland Security uses a nationwide computer “work flow” system to track the processing of naturalization applications. The Computer Linked Application Information Management Systems (“CLAIMS”) stores information about various immigration benefit applications. One part of the system, CLAIMS 4, stores information about every naturalization application filed after April 2001.
46. In December 2006, after this suit was filed, the Department of Homeland Security responded to a Freedom of Information Act request submitted by the Arab American Action Network by producing a CD-ROM with data extracted from the CLAIMS 4 system. The data includes information relating to approximately 3.4 million naturalization applications, including every naturalization application that was filed after April 1, 2001, through the date the data was extracted, approximately November 17, 2006.
47. The DHS data further confirms that more than two-thirds of the naturalization applicants who applied since April 1, 2001 (over 2.2 million applicants) have not had a decision made on their applications for more than 180 days from the date their applications were filed, in violation of the “sense of Congress” that a decision should be made within that time frame. 8 U.S.C. §1571.
48. The DHS data further confirms that delays on decisions on naturalization cases are extreme in a significant number of cases. For example, approximately 776,000 applicants
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have not had a decision made in their case for more than a year since they applied. Approximately 158,000 applicants have not had a decision made in their case for more than 2 years after they applied. More than 41,000 applicants wait 3 years (or longer) for a decision.
49. While part of this delay appears to take place before the initial examination, the DHS data also confirms that approximately 348,000 naturalization applicants who applied since April 1, 2001 have not had a decision made on their applications within the 120 day time period after the applicant’s initial examination mandated by the Code of Federal Regulation. 8 C.F.R. § 335.3(a).
50. Delays between the initial examination and a decision are also extreme. Delays exceed more than double the 120-day period mandated by regulation (i.e., more than 240 days) in 5% of all cases, or approximately 175,000 cases. In the most extreme cases—the 1% of applications with the longest delays—the time between the initial examination and a decision exceeds 720 days. There are more than 33,000 cases that fall into this category. One Source of the Delay: The FBI’s “Name Check” Program
51. As part of the review process for naturalization applications, USCIS conducts background investigations of the naturalization applicants. 8 U.S.C. § 1446(a); 8 C.F.R. §§ 335.1, 335.2.
52. Since 1997, Congress has also required the Federal Bureau of Investigation to conduct a criminal background investigation for naturalization applicants. Pub. L. 105-119, Title I, 111 Stat. 2440, 2448-49 (1997); 8 C.F.R. § 335.2(b).
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53. Starting on December 3, 1997, naturalization applicants have been required to submit their fingerprints and have been subject to full criminal background checks. 8 C.F.R. § 335.2(b).
54. Naturalization applicants pay substantial fees relating to the background checks, and those fees are set specifically to insure that DHS recovers “the full cost” of providing the service. These fees are in addition to the fees charged for the naturalization application itself. The fingerprint fee was $25 until February 19, 2002, when it was raised to $50 per applicant. 8 C.F.R. § 103.7. The increase was instituted after review as “both necessary and justified in an effort to recover the full cost of providing the service in accordance with applicable fee setting laws, regulations, and guidance.” 66 Fed. Reg. 65811 (Dec. 21, 2001). The fee was raised again, to $70 per applicant, effective April 30, 2004, “to ensure sufficient funding to process incoming applications.” 69 Fed. Reg. 20528 (Apr. 15, 2004). The fee cannot be waived. Id.
55. Before, either USCIS or the FBI or both expanded the name check to include “references.” This was done without notice and comment.
56. The background checks include: (a) an FBI fingerprint check; and (b) a check against the DHS-managed Interagency Border Inspection System (IBIS) that contains records and “watch list” information from more than 20 federal law enforcement agencies, which reveals information relating to arrests, convictions, and those suspected of committing serious crimes. Dorochoff Dec. ¶ 9.
57. In addition to the two background checks outlined above, the background check includes “an FBI name check, which is run against FBI investigative databases containing information that is not necessarily revealed by the FBI’s fingerprint check or IBIS.” Dorochoff Dec. ¶ 9.
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58. In November 2002, without prior notice and without public comment, the FBI altered the “name check” program to include not only its “main files” but also “references.” Canon Dec. ¶ 17.
59. On information and belief, the FBI name check (not the fingerprint or IBIS review) is the primary cause for delaying the adjudication of applications beyond the 120-day time period mandated by regulation.
60. On information and belief, the FBI name check has rarely, if ever, revealed significant information that was not revealed in the FBI fingerprint or IBIS checks concerning an applicant’s eligibility for naturalization. See generally Dorochoff Dec. ¶ 15 (listing only two examples of “derogatory information” revealed through the background check process in the context of naturalization applications, but not indicating which particular background check – fingerprints, IBIS, or name check – revealed the information). Additional Information Concerning the Scope of the Problem, and “Expedited” Requests for Name Check Review
61. Additional analysis of the data supplied in response to the FOIA confirms that a total of at least 2,301 naturalization applications took more than 720 days to adjudicate after the interview date in the Seventh Circuit. There were 1,706 such cases in Illinois, 191 in Indiana, and 404 in Wisconsin.
62. While no discovery was permitted in this case, the court in the Yakubova putative class action has allowed discovery to proceed. Some of the documents produced by the Government in the Yakubova class action have been made available to counsel in other putative
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class actions. The Government has asserted that certain other documents are confidential and those documents have not been made available for review by counsel in this case.
63. Among the documents produced by the Government is an unsigned “Interagency Agreement for Services Submission of Federal Non-Criminal Justice Applicant Fingerprint Requests/Name Checks/Background Investigation” (YAKUB007305-7317, attached as Exhibit 1). Among other things, the Interagency Agreement indicates that the FBI “will process the applicant fingerprint request/name checks and advise [USCIS] of the results of the fingerprint requests/name checks.”
64. Also according to the Interagency Agreement there is a provision for requesting expedited review, the FBI charges USCIS $22.35 to expedite a name check request. This means, for example, that the 2,301 naturalization applicants who have been waiting more than 2 years to have their application adjudicated could be processed on an expedited basis at a total cost of approximately $51,427.
65. The non-confidential documents produced by the Government in the Yakubova case demonstrate that the FBI has the capacity to process tens of thousands of requests to expedite name check reviews each year. In recent years, the FBI has processed at least 85,000 and as many as 185,000 requests to expedite name check reviews.
66. Currently, only a small percentage of the expedite requests come from USCIS (See YAKUB009931-32, attached as Exhibit 2). In Fiscal Year 2003, the NNCP received 185,344 expedite requests, 2,605 of which were from USCIS. In Fiscal Year 2004, the NNCP received 135,295 expedite requests, 3,507 of which were from USCIS. In Fiscal Year 2005, the NNCP received 118,679 expedite requests, 2,693 of which were from USCIS. In Fiscal Year 2006, the NNCP received 87,655 expedite requests, 722 of which were from USCIS.
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67. Documents produced by the Government in the Yakubova case also confirm that the FBI has the capability of dramatically reducing the number of pending Name Check requests. In Fiscal Year 2006, the FBI reduced the number of pending name check requests for “All Other” customers by over 400,000 names. That category started the year with 445,165 pending requests, which the FBI had reduced to 28,311 by the end of the year. (See YAKUB009932).
Causes of Action Count I (Class Wide Allegation) Violation of the Administrative Procedure Act Against All Defendants
68. Plaintiffs reassert and reallege the allegations of paragraphs 1-67 as if set forth fully here.
69. The Defendants are legally required to adjudicate all naturalization applications within “a reasonable time” as set forth in section 555(b) of the Administrative Procedure Act (“APA”). 5 U.S.C. § 555(b).
70. Based on Public Law No. 105-119, the Interagency Agreement between the FBI and USCIS, and law cited therein, the FBI has a duty to process fingerprint checks and name checks when requested by USCIS, which process must be completed in “a reasonable time.”
71. Delays in the processing of fingerprint and name checks such as those experienced by the plaintiffs are not reasonable.
72. When an agency fails to conclude a matter presented to it with a reasonable time, the APA grants judicial review to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
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73. Defendants have a pattern and practice of failing to adjudicate naturalizations within a reasonable period of time, which practice should be corrected.
74. As alternative relief to correcting delays, Defendants should be ordered to make the expedition policy open to applicants whose naturalization applications have not been adjudicated in a reasonable period of time, either at no cost to the applicant or, in the alternative, by allowing the applicant to pay the same fee charged by the FBI pursuant to the Interagency Agreement.
Count II: (Class-wide Allegation) Mandamus / Request for Adjudication by Immigration Defendants 75. Plaintiffs reassert and reallege paragraphs 1 to 67 as if set forth fully here. 76. The Immigration Agency Defendants – DHS, USCIS, Dorochoff, and Chertoff – owe Plaintiffs the duty to act upon their applications in a timely manner. Plaintiffs have a right to have their applications adjudicated in a timely manner. 77. The Immigration Agency Defendants are violating their duty by failing to adjudicate the application in a timely manner, by (a) refusing to make any decision on cases relating to the Plaintiff Class until background checks are completed, (b) failing to obtain a timely response from the FBI and other federal agencies regarding the background check; (c) failing to communicate with the FBI and/or other federal agencies regarding long-delayed background checks; (d) refusing to consider other alternatives, such as approving the case subject to rescission if the claims of the Plaintiff Class regarding the lack of criminal history are not borne out by the background checks, or offering approval conditioned on applicants’ agreement
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to waive objections to denaturalization if the background checks cause the Government to wish to examine the applicants further.
78. Plaintiffs have already exhausted all available administrative remedies. Count III: (Class-wide Allegation)
Mandamus / Request for Completion of Background Checks 79. Plaintiffs reassert and reallege paragraphs 1 to 67 as if set forth fully here. 80. The FBI Defendants – Mueller and the FBI – owe Plaintiffs the duty to complete their background checks in a timely manner. Plaintiffs’ right to have their applications adjudicated in a timely manner encompasses the right to have their background checks completed in a timely manner as well. 81. Based on Public Law No. 105-119, the Interagency Agreement between the FBI and USCIS (and law cited therein), the FBI has a duty to process fingerprint checks and name checks when requested by USCIS. 82. The FBI Defendants are violating their duty by failing to complete their background checks in a timely manner, by (a) refusing to effectively permit expedited handling of background checks which are long-delayed, (b) failing to institute a system which would permit timely completion of these background checks; (c) engaging in unnecessary extra checks by examining files unrelated to the plaintiff class; (d) refusing to give any partial response to the Immigration Agency requestors. 83. Plaintiffs have already exhausted all available administrative remedies. 84. As alternative relief to correcting delays, Defendants should be ordered to make the expedition policy open to applicants whose naturalization applications have not been
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adjudicated in a reasonable period of time, either at no cost to the applicant or, in the alternative, by allowing the applicant to pay the same fee charged by the FBI pursuant to the Interagency Agreement.
Count IV: (Class-wide Allegation) Administrative Procedures Act (Notice and Comment) 85. Plaintiffs reassert and reallege paragraphs 1 to 67 as if set forth fully here. 86. The Immigration Agency Defendants – DHS, USCIS, Dorochoff, and Chertoff – were legally required to follow specified procedures before enacting new rules, pursuant to the Administrative Procedure Act (“APA”). 87. The USCIS (then the Immigration and Naturalization Service (“INS”) enacted an internal rule which required “FBI name checks” to be made, in addition to the other background checks performed on Naturalization applicants. 88. USCIS has never given the public the opportunity to comment upon this rule. 89. In light of the fact that the FBI name check is primarily responsible for a substantial backlog in the processing of naturalization applications, it is reasonably possible that there would be substantial public comment regarding the adoption of the additional check. Such comments might well suggest reasonable alternatives to the check, or limitations to be placed upon its use in this context. 90. Because the internal agency rule requiring completion of an FBI name check was enacted without public notice and without the opportunity for the public to comment on the rule, it violates the APA.
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91. It is therefore the Court’s obligation to enjoin the enforcement of the internal rule requiring completion of FBI background checks prior to adjudication of naturalization applications.
Count V: (Class-wide Allegation) Equal Protection Violation
92. Plaintiffs reassert and reallege paragraphs 1 to 67 as if set forth fully here. 93. Failing to adjudicate the naturalization applications of Plaintiffs in a timely manner as compared to other similarly situated applicants is a violation of the Equal Protection Clause of the Fourteenth Amendment. See U.S. Const. Amends. V and XIV. 94. To the extent the failure to adjudicate the naturalization applications of Plaintiffs in a timely manner is attributable to the “name check” program, the “name check” program is not reasonably related to a legitimate government interest. Count VI (Individual Claims): Naturalization Order Pursuant to 8 U.S.C. § 1447(b)
95. Named Plaintiffs, in their individual capacities, reassert and reallege paragraphs 1 to 67 as if set forth fully here.
96. Pursuant to 8 U.S.C. § 1447(b), each of the Named Plaintiffs seeks a determination by this Court that he meets the requirements for naturalization and is to be naturalized as a U.S. citizen without further delay.
97. Plaintiffs YAN BASHKIN, GAFAAR DAFALLA, NADEEM FAZAL, BORIS GOLDFARB, MOHAMMED KHAN, SOBIA KHAN, LARISA KHANINAYEVA, VLADIMIR KHLYSTOV, DORA REZNIK, ILYA SEREBRENNIKOV, YELENA
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SEREBRENNIKOVA, and ISMAIL SULEIMAN should have their applications adjudicated as soon as practiable.
Prayer for Relief Wherefore, plaintiffs seek the following relief:
A. An order setting an immediate date for naturalization of the individual plaintiffs; B. The actual naturalization of the plaintiffs by this Court; C. Entry of judgment in favor of the plaintiffs and against the defendants, finding that
the defendants procedures for conducting background checks are unreasonable, in violation of 5 U.S.C. § 555(b); D. An order directing the defendants to abide by the dictates of 8 U.S.C. § 1422; E. An award of damages in an amount to be determined; F. An order enjoining the enforcement of the Agency’s internal rule requiring completion of FBI name checks prior to adjudication of naturalization applications; G. An order requiring adjudication of all naturalization applications within 120 days of the initial examination; H. In the alternative, an order permitting naturalization applicants to request that the FBI expedite his or her name check (at no cost to the applicant or, in the alternative, at the same cost to the applicant that the FBI charges USCIS to expedite a name check review);
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I. An order directing that the name check for all naturalization applicants in the Seventh Circuit whose applications have not been adjudicated within two years of the applicant’s interview be expedited.
J. An award of costs, as provided by 28 U.S.C.S. § 2412(a)(1); K. An award of attorneys fees, as provided by 28 U.S.C.S. § 2412(d)(1), or 42 U.S.C. §
1988; or 5 U.S.C. § (a)(4)(E); and L. Such other relief as the Court deems just.
Jury Demand Plaintiffs demand a jury as to all matters subject to resolution by a jury.

November 13, 2007

Respectfully submitted,

By: s/David Berten

David Berten Competition Law Group LLC 55 West Monroe St. Suite 1930 Chicago, IL 60603 Ph: 312.629.1900 Fax: 312.629.1988

Charles Roth National Immigrant Justice Center 208 S. LaSalle Street Suite 1818 Chicago, IL 60604 Ph: 312.660.1613 Fax: 312.421.0923

Heena Musabji Of Counsel Council on American-Islamic Relations, Chicago Chapter (CAIR-Chicago) 28 East Jackson Boulevard Suite 405 Chicago, Illinois 60604 Ph: 312.212.1520 Fax: 312.212.1530

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Certificate of Service I certify that in accordance with Rule 5 of the Federal Rules of Civil Procedure and Local Rule 5.5 and the General Order on Electronic Case Filing (ECF), the following document:
Fourth Amended Complaint was served using the district court’s ECF system on November 13, 2007 to the following ECF filers:
Sheila McNulty (sheila.mcnulty@usdoj.gov, marion.mclemore@usdoj.gov, linda.wawzenski@usdoj.gov, USAILN.ECFAUSA@usdoj.gov )
Gina Elizabeth Brock (gina.brock@usdoj.gov)
and
Elizabeth J. Stevens (elizabeth.stevens@usdoj.gov)
And by U.S. Mail to:
Daniel J. Davis U.S. Department of Justice Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530
Sheri R. Glaser Trial Attorney Office of Immigration Litigation Civil Division United States Department of Justice 1331 Pennsylvania Avenue, N.W. Washington, D.C. 20044
All representing the Government.
____s/ David Berten___ David Berten
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 (2007)
SERGEY ANTONISHIN, et al. individually and on behalf of a class of similarly situated persons, Plaintiffs, v. PETER D. KEISLER, et al., Defendants.
Nos. 06 CV 2518, 06-2518.071-RSK.
United States District Court, N.D. Illinois, Eastern Division.
September 20, 2007.
MEMORANDUM OPINION
JOHN F. GRADY, District Judge.
Defendants have moved to dismiss plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Alternatively, defendants ask us to remand the named plaintiffs' applications to the United States Citizenship and Immigration Services ("USCIS") pursuant to 8 U.S.C. § 1447(b). For the reasons explained below, we grant defendants' motion in part and deny it in part.
BACKGROUND
Plaintiffs are lawful permanent residents of the United States who have applied to be naturalized as United States citizens. (Compl. ¶ 3.) As part of the application review process, USCIS conducts backgrounds checks of each applicant. (Id. at ¶ 42.)[1] These background checks include: (a) an FBI fingerprint check; (b) a search of the Interagency Border Inspection System ("IBIS"), which contains records information "from more than 20 federal law enforcement agencies;" and (c) an FBI "name check," which is "run against FBI investigative databases containing information that is not necessarily revealed by the FBI's fingerprint check or IBIS." (Id. at ¶ 47.) The name and fingerprint checks were first implemented in 1998, after Congress prohibited USCIS from using any appropriated funds to adjudicate any naturalization application without first confirming that the FBI had completed a "full criminal background check" of the applicant. Department of Justice Appropriations Act of 1998, Pub.L. No. 105-119, Title I, Nov. 26, 1997, 111 Stat. 2448. The FBI, in turn, performs the background checks at USCIS' request on a "fee-for-service" basis "according to USCIS-defined standards." See Citizenship and Immigration Services Ombudsman Annual Report 2007 (hereinafter "Ombudsman Report"), attached as Exhibit 2 to Plaintiffs' Second Notice of New Authority, at 38.
When USCIS first implemented the name-check requirement in late 1997, applicant names were checked against the FBI's "main" files only. (Compl. ¶ 44, 47-48.) In November 2002, without prior notice and without accepting public comment, USCIS and the FBI agreed to expand the name check to include "references" to the applicant's name in the FBI's files. (Compl. ¶ 48; Ombudsman Report at 28 ("[T]he FBI provides information to USCIS

regarding anyone who is the principal subject of an investigation or is a person referenced in a file.")) The new search criterion increased the amount of time required to complete certain name checks and has caused delays in the review process, generally. (Compl. ¶ 49; Pl. Opp'n at 20).
Before receiving the results of plaintiffs' background checks, USCIS interviewed each plaintiff to ascertain his or her command of English and to address any other concerns that USCIS might have about his or her application. (Compl. ¶ 31.) Plaintiffs cite Department of Homeland Security ("DHS") data indicating that USCIS adjudicates more than 50% of all cases on the same day that it interviews the applicant. Id. at ¶ 33. Approximately 90% of all applications are adjudicated within 120 days of the interview. Id. Plaintiffs fall within the remaining 10%: although all of the plaintiffs' interviews were completed before January 5, 2006, to date the USCIS has not adjudicated their applications. Id. at ¶¶ 22-26.
Plaintiffs have filed a six count complaint. Counts I-V are brought on behalf of a putative class of applicants in Illinois, Indiana and Wisconsin. Count I, brought against the "Immigration Defendants" (DHS, USCIS, Dorochoff and Chertoff), alleges that systematic delays in the naturalization application system violate the Administrative Procedures Act ("APA"). Count II, also brought against the Immigration Defendants, asserts a claim for mandamus relief for failing to adjudicate plaintiffs' applications in a "timely manner." Count III, brought against the "FBI Defendants" (Mueller and the FBI), asserts a claim for mandamus relief for failure to complete name checks in a timely manner. Count IV alleges that USCIS failed to follow required notice and comment procedures when it adopted the name check requirement. Count V alleges that the delays that plaintiffs have experienced relative to other applicants violates the equal protection component of the Fifth Amendment. In Count VI, brought by the named plaintiffs on their own behalf, plaintiffs ask us to adjudicate their naturalization applications pursuant to 8 U.S.C. § 1447(b).
DISCUSSION
I. Motion to Dismiss Standard
When considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a district court accepts as true all well-pled factual allegations and draws reasonable inferences from the allegations in favor of the plaintiff. Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993). The court may also look beyond the allegations of the complaint and consider affidavits and other documentary evidence to determine whether subject matter jurisdiction exists. Id.
The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). When evaluating such a motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999); Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997).

II. Claims Brought On Behalf of the Named Plaintiffs Only
A. Subject Matter Jurisdiction
Defendants contend that this court lacks jurisdiction to adjudicate the plaintiffs' applications. Congress has expressly limited federal courts' jurisdiction to adjudicate naturalization applications:
If there is a failure to make a determination under section 1446 before the end of the 120day 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.
8 U.S.C. § 1447(b). Whether we have jurisdiction turns on the proper interpretation of "examination," which is not defined in the statute. Defendants contend that "examination" means the entire investigative process prior to adjudication, including the background checks. The 120-day period has not been triggered, they argue, because plaintiffs' background checks are not complete. Plaintiffs, for their part, maintain that "examination" refers to the USCIS interview. Considerably more than 120 days elapsed after plaintiffs' interviews before they filed their complaint.
Defendants rely primarily on Danilov v. Aguirre, 370 F.Supp.2d 441 (E.D.Va. 2005) to support their interpretation of "examination."[2] In Danilov, the court concluded that § 1446 ("Investigation of applicants; examination of applications") describes a "process to gather information concerning the applicant," not a "single event." Id. at 443. The court reached this conclusion based upon provisions of § 1446 authorizing the examiner to issue subpoenas requiring witness testimony and document production. Id. Moreover, 8 C.F.R. § 335.2 prohibits the USCIS from scheduling an applicant's "initial examination" before the FBI provides a "definitive response" concerning the applicant's background check. Id. at 444. The Danilov court reasoned, somewhat circularly, that the fact that the plaintiff's interview occurred before USCIS received a response from the FBI meant that the interview was not the "examination." Id.
We are not persuaded by the reasoning in Danilov to part ways with the majority view that the "examination" is the applicant's interview. See Repeshchuk v. Gonzales, Civ. No. 072017 (RHK/AJB), 2007 WL 2361450, *2 (Aug. 15, 2007) (noting that an "overwhelming majority of federal courts" have rejected the reasoning in Danilov). The fact that § 1446 authorizes the examiner to issue subpoenas "[f]or purposes of" conducting the examination does not mean that the examination itself is not a discrete event. Later in the same section the statute provides that the examiner "shall, at the examination, inform the applicant of the remedies available to the applicant under section 1447 of this title." Id. (emphasis added). Other provisions of the statute and implementing regulations also support interpreting "examination" to mean the applicant's interview. Section 1447(b) refers to "the date on which the examination is conducted pursuant to section 1446," strongly implying that the

"examination" is a discrete event and not an ongoing process. See 8 U.S.C. § 1447(b); ElDaour v. Chertoff, 417 F.Supp.2d 679, 681 (W.D. Pa. 2005). Danilov is also difficult to square with 8 C.F.R. § 335.2, which equates the "examination" with the "interview" conducted by the Service officer:
Subsequent to the filing of an application for naturalization, each applicant shall appear in person before a Service officer designated to conduct examinations pursuant to § 335.1 of this chapter.
...
Prior to the beginning of the examination, the Service officer shall make known to the applicant the official capacity in which the officer is conducting the examination. . . . The Service officer shall maintain, for the record, brief notations of the examination for naturalization. At a minimum, the notations shall include a record of the test administered to the applicant on English literacy and basic knowledge of the history and government of the United States. The Service officer may have a stenographic, mechanical, electronic, or videotaped transcript made, or may prepare an affidavit covering the testimony of the applicant.
8 C.F.R. § 335.2 (emphasis added). Section 335.2(b) also provides that USCIS may schedule the "examination" only after receiving a "definitive response" from the FBI. Id. at § 335.2(b).[3] This procedure does not make sense if the background check is part of, not separate from, the examination. See Khelifa v. Chertoff, 433 F.Supp. 2d 836, 841 (E.D. Mich. 2006).
Consistent with the great majority of courts to consider this issue, we conclude that the statute confers federal court jurisdiction 120 days after the applicant's USCIS interview. Accordingly, we have subject matter jurisdiction over plaintiffs' naturalization applications.
B. Remand
Section 1447(b) authorizes us to "either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter." 8 U.S.C. § 1447(b). We conclude that remand is appropriate, consistent with the "vast majority" of courts that have addressed the issue. Manzoor v. Chertoff, 472 F.Supp. 2d 801, 810 (E.D. Va. 2007). USCIS possesses expertise in this area and should be given the opportunity to adjudicate plaintiffs' applications in the first instance. See Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16-17 (2002) (remand is generally the better course and "[t]his principle has obvious importance in the immigration context.").[4] Moreover, we decline to impose any particular deadline for adjudication of plaintiff's applications on remand. Once plaintiffs' name checks are complete "there should be no impediment to prompt resolution" of their applications. Walji, 06-cv-02518, at 16. If for some reason their applications are not resolved within a reasonable time after completion of the name checks, plaintiffs again have recourse to appropriate judicial relief under § 1447(b).
III. Claims Brought On Behalf of the Class

A. The Timing of Defendants' Dispositive Motion
As a threshold matter, we note that defendants have filed their motion to dismiss even though plaintiffs have not yet moved for class certification. Generally speaking, decisions on the merits of a plaintiff's claim should be made after determining whether to grant or deny class certification. See Fed. R. Civ. P. 23(c) ("When a person sues or is sued as a representative of a class, the court must—at an early practicable time—determine by order whether to certify the action as a class action."); Mira v. Nuclear Measurements Corp., 107 F.3d 466, 475 (7th Cir. 1997). However, the Seventh Circuit has recognized that in certain circumstances district courts may proceed to rule on a dispositive motion without first ruling on class certification. See Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir. 1995). As the Court noted in Cowen, "[c]lass actions are expensive to defend. One way to try to knock one off at low cost is to seek summary judgment before the suit is certified for class action." Id. The Court in Cowen concluded that this tactic is proper, id., and we see no reason it would not be proper in connection with a motion to dismiss. See, e.g., Griffin v. Humana Wis. Health Org. Ins. Corp., No. 98-C-0001, 2000 WL 35572299, *2 (E.D. Wis. June 26, 2000) (applying the principle in Cowen to a motion to dismiss). Accordingly, we proceed to consider defendants' motion to dismiss those Counts brought on behalf of a putative class of applicants.
B. APA and Mandamus Claims Against USCIS
Plaintiffs assert claims against USCIS for relief pursuant to the APA and for mandamus. In Count I (APA), plaintiffs allege that USCIS has engaged in a "pattern and practice of failing to adjudicate naturalizations within a reasonable period of time, which practice should be corrected." (Compl. ¶ 55.) Count II requests mandamus relief for essentially the same conduct—failure to adjudicate applications in a "timely manner." (Compl. ¶¶ 56-59.) In their prayer for relief, plaintiffs ask us to order defendants to adjudicate all naturalization applications within 120 days of the examination. (Compl. ¶ G.) By its terms, such an order would require USCIS to proceed even without a "definitive response" from the FBI. Under the APA, the "only agency action that can be compelled under the APA is action legally required." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63 (2004). Plaintiffs must satisfy a similar requirement for mandamus relief. Scalise v. Thornburgh, 891 F.2d 640, 648 (7th Cir. 1989), cert. denied, 494 U.S. 1083 (1990) (The defendant must have "a plainlydefined and peremptory duty to do the act in question"). USCIS has no duty to adjudicate a naturalization application before receiving a "definitive response" from the FBI that the applicant's background check is complete. Indeed, it is prohibited from doing so. Department of Justice Appropriations Act of 1998, Pub.L. No. 105-119, Title I, Nov. 26, 1997, 111 Stat. 2448; 8 C.F.R. § 335.2(b).[5]
In their opposition to defendant's motion to dismiss, plaintiffs ask us to take the somewhat less drastic step of requiring USCIS to request expedited name checks whenever a name check is still pending 120 days after the applicant's examination. USCIS can and does ask the FBI to expedite name checks in limited circumstances.[6] But plaintiffs have not cited any statute or regulation requiring USCIS to request expedition under any circumstances. See Norton, 542 U.S. at 63; Scalise, 891 F.2d at 648 (7th Cir. 1989), cert. denied, 494 U.S. 1083 (1990) Congress has set a normative expectation that applications will be adjudicated within

180 days after the application. 8 U.S.C. § 1571. We do not believe that this expectation compels the agency to request expedition when a name check has been pending for a longer period of time. Accordingly, we decline to rewrite USCIS's expedition policy.
Finally, we note that plaintiffs have an adequate remedy under §1447(b). See Walsh v. United States Dept. of Affairs, 400 F.3d 535, 537-38 (7th Cir. 2005) (APA relief is not available if plaintiff has an adequate legal remedy); Iddir v. I.N.S., 301 F.3d 492, 498 (7th Cir. 2002) (mandamus relief is not available if plaintiff has an adequate legal remedy); cf., Kaplan v. Chertoff, 481 F.Supp.2d 370, 400 (E.D. Pa. 2007) (noting that APA relief may be appropriate "where § 1447 provides no avenue for the court to adjudicate the application."). Under both Counts I and II plaintiffs assert a right to have their applications adjudicated within a reasonable time frame. As previously discussed, we obtained jurisdiction over the adjudication process 120 days after plaintiffs' initial examination. Although we have declined to do so here, this provision authorizes district courts to, among other things, order USCIS to request expedited name checks. Accordingly, plaintiffs need not rely on a general jurisdictional grant to obtain the relief that they seek. See Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) ("Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action."); Alsamir v. United States Citizenship and Immigration Services, No. 06-cv-01751WDM-BNB, 2007 WL 1430179, at *2 (D. Colo. May 14, 2007) (concluding that the availability of § 1447(b) review precludes mandamus and APA relief).
C. Claims Against the FBI
The practical effect of accepting jurisdiction and remanding to USCIS may be negligible where, as here, the applicant's name check results are pending. Several courts have remanded to USCIS with directions to both USCIS and the FBI to complete their review within a specified time frame. See, e.g., Alhamedi v. Gonzales, No. 07 Civ. 2541(JGK), 2007 WL 1573935, at *4-5 (S.D.N.Y. May 30, 2007). However, Section 1447(b), standing alone, does not authorize us to order the FBI to expedite plaintiff's name checks. See 8 U.S.C. § 1447(b) (A court may "either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.") (emphasis added). Accordingly, there would have to be some other basis for such an order. We now turn to that issue.
1. APA Claim Against the FBI
Plaintiffs contend that we may compel the FBI to expedite its name checks pursuant to APA § 706(1), which requires us to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). However, as we previously discussed, the "only agency action that can be compelled under the APA is action legally required." Norton, 542 U.S. at 63. There is no statute or regulation that "expressly imposes a mandatory duty on the FBI to perform background checks." Kaplan, 481 F.Supp.2d at 400; cf. Yakubova v. Chertoff, 06CV-3203, at 6 (E.D.N.Y. Nov. 1, 2006) (unpublished opinion attached as Ex. A to Pl. Opp'n)(assuming without analysis that the FBI has a mandatory duty to complete name checks). On this basis, several courts considering APA and mandamus claims in connection with adjustment-of-status requests have concluded that the FBI has no duty to complete

background checks.[7] Claims against the FBI in connection with naturalization applications are arguably on a different footing, insofar as Pub.L. No. 105-119 explicitly refers to naturalization applications:
[D]uring fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization Service has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed.
Department of Justice Appropriations Act of 1998, Pub.L. No. 105-119, Title I, Nov. 26, 1997, 111 Stat. 2448 (emphasis added). Congress has further provided that the FBI may establish fees for name-check costs. Pub. Law 105-515, 104 Stat. 2101, 2112 (1990). The court in Kaplan concluded that, "[u]nder these limited circumstances," Congress had, "by implication, imposed on the FBI a mandatory duty to complete the background checks." 481 F.Supp.2d at 370.
We are not persuaded by Kaplan to infer a mandatory duty under these circumstances. Pub. L. No. 105-119 is addressed to USCIS and establishes conditions that USCIS must satisfy to access appropriated funds. It is at best unclear whether Congress intended to impose any mandatory duty on the FBI. We decline to infer such a duty based on an appropriations measure directed to a different agency. We conclude that plaintiffs have not stated a claim for APA relief against the FBI.
2. Mandamus Claim Against the FBI
As an alternative basis for compelling the FBI to expedite their name checks, plaintiffs assert a claim for mandamus relief. Mandamus is an "extraordinary remedy" that a court may invoke only when each of three elements is present: (1) the plaintiff has a clear right to the relief he seeks; (2) the defendant has a plainly-defined and peremptory duty to do the act in question; and (3) no other adequate remedy is available. Scalise, 891 F.2d at 648. For the reasons discussed in connection with plaintiffs' APA claim, we conclude that the FBI has no "plainly-defined and peremptory duty" to complete the name checks. See Eldeeb v. Chertoff, No. 8:07-cv-236-T-17EAJ, 2007 WL 2209231, at *22 (M.D. Fla. July 30, 2007) (dismissing complaint and concluding that the FBI does not owe a "clear" duty to lawfulpermanent-resident applicants to process name checks). Accordingly, mandamus is not appropriate.
D. APA Claim Based on Adoption of the "References" Check
In 1997 Congress prohibited USCIS from using any appropriated funds to adjudicate any naturalization application without first confirming that the FBI had completed a "full criminal background check" of the applicant. Department of Justice Appropriations Act of 1998, Pub.L. No. 105-119, Title I, Nov. 26, 1997, 111 Stat. 2448. In response, USCIS adopted 8 C.F.R. § 335.2(b):

(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.
8 C.F.R. § 335.2(b). From 1998 until approximately November 2002, USCIS requested that the FBI search its "main" files only. At that point, USCIS began requesting a broader search for "references" to the applicant's name in FBI files.
Plaintiffs contend that the decision to review "references" was improperly made without notice and comment. See 5 U.S.C.A. § 553. "The APA mandates that an agency follow its notice and comment procedures when promulgating" a legislative rule. Board of Trustees of Knox County Hosp. v. Shalala, 135 F.3d 493, 500 (7th Cir. 1998). A legislative rule "create[s] law, usually implementary to an existing law." Id. On the other hand, the APA's notice-and-comment requirement does not apply "to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." See 5 U.S.C.A. §553(b). Interpretive rules are statements "as to what the administrative officer thinks the statute or regulation means." Board of Trustees, 135 F.3d at 501 (internal citation and quotation marks omitted). The paradigmatic interpretive rule is one which expressly references the statute being interpreted. Metropolitan School District of Wayne Township, Marion County, Indiana v. Davila, 969 F.2d 485, 490 (7th Cir. 1992). Nevertheless, a rule may be interpretive even if there is no such reference. See, e.g., Knox, 135 F.3d at 501 (concluding that the agency's policy statement impliedly interpreted the agency's regulation).
Defendants have not identified a reference to the relevant statute or regulation contemporaneous with expanding the name check program. It is apparent, however, that USCIS was interpreting the scope of the "full criminal background check."[8] It did not create a new law, right or duty. Metropolitan School Dist. Of Wayne Twp., Marioun County, Ind. v. Davila, 969 F.2d 485, 490 (7th Cir. 1992) ("[I]f by its action the agency intends to create new law, rights, or duties, the rule is properly considered to be a legislative rule."). The parameters of a "full criminal background check" are not self-defining. USCIS might well have required a "reference" name check in 1997, when Congress imposed the "full criminal background check" requirement. See Stepchuk v. Gonzales, No. C06-570RSL, 2007 WL 185013, at *2 (W.D. Wash. Jan. 18, 2007) ("[T]he FBI's name check may be considered a part of the requirement for a `full criminal background check.'"). Shalabi, 2006 WL 3032413, at *2 ("A `name check' may certainly be read into the requirement of a full criminal background check."); cf. Hoctor, 82 F.3d at 169 (7th Cir. 1996) (concluding that the USDA's

arbitrary eight-foot fence requirement could not be construed as "interpreting" a regulation concerning the "strength" of such enclosures). The fact that it was implemented in 2002 does not make the change legislative. Id. at 491 ("[A]n agency's change in its reading of a statute does not necessarily make the rule announcing the change legislative."). Although delays caused by the name check are significant, the impact is incidental. Id. at 493 ("Prevailing authority rejects the proposition that a rule that has substantial impact is necessarily legislative."). We conclude that the "rule" adopted by USCIS was interpretive and was not subject to the APA's notice-and-comment requirement.
Plaintiffs also argue that USCIS's interpretation is unreasonable because the name check has delayed "tens of thousands of applications." Pl. Opp'n at 20. The trade-off between prompt adjudication and a thorough background check falls squarely within USCIS's mandate. Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1327 (7th Cir. 1990)(Deferring to the EPA's interpretation of the Superfund Amendment and Reauthorization Act: "The agency's action should be upheld, absent proof of contrary legislative intention, when the action is a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute.") (internal citation and quotation marks omitted). Moreover, we are "bound to defer to [the agency's] interpretation if reasonable and statutorily permissible." State of Wis., Dept. of Health and Social Services v. Bowen, 797 F.2d 391, 397 (7th Cir. 1986). Although the effect of the name check could arguably be overbroad in some instances, insofar as it may pick up information that is not "criminal" in nature, we do not believe that makes the name check unreasonable.
E. Equal Protection
Plaintiffs allege that USCIS's failure to adjudicate their applications "in a timely manner as compared to other similarly situated applicants" violates their right to equal protection of the laws. (Compl. § 72.) The equal protection component of the Fifth Amendment "essentially is a direction that all persons similarly situated should be treated alike." Vision Church v. Village of Long Grove, 468 F.3d 975, 1000 (7th Cir. 2006) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). Where, as here, "no suspect class or fundamental right is involved," we employ a rational basis test. Id. at 1000-01. "This standard is extremely respectful of legislative determinations and essentially means that we will not invalidate a statute unless it draws distinctions that simply make no sense." United States v. Jester, 139 F.3d 1168, 1171 (7th Cir. 1998). In addition, plaintiffs must allege that disparate treatment is the result of intentional and purposeful discrimination. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-66 (1977).
Plaintiffs rely primarily on Kaplan to support their equal protection claim. See Kaplan, 481 F.Supp.2d at 393. The plaintiffs in Kaplan were humanitarian refugees and asylees who were receiving supplementary security income ("SSI") benefits. Id. at 376. Pursuant to 8 U.S.C. § 1612(a)(2), the government terminated their SSI benefits after seven years, even though their applications for naturalization and legal-permanent-residency status were still unresolved. Id. at 376-77. Recognizing the potential gap in SSI coverage, USCIS implemented an expedition policy ("Memorandum 22") intended to assist asylees. The plaintiffs alleged, however, that Memorandum 22 was of limited use because USCIS "implement[ed] it unevenly, honoring some expedite requests while ignoring others." Id. at 380. The Kaplan plaintiffs claimed that "the different timeliness in the processing of

humanitarian immigrants' applications violate[d] the Equal Protection Clause." Id. at 377. Specifically, the plaintiffs alleged that in some years and in some USCIS offices the application backlogs were greater than others, and that some offices honored expedition requests while others did not. Id. at 392. The Kaplan court concluded that the plaintiffs could not state a claim for violation of their right to equal protection based on unintended naturalization-application backlogs. Id. at 395. The plaintiffs did not allege that the USCIS "intends for backlogs to build up unequally at different times or in different offices." Id. The court concluded that the plaintiff could, however, state a claim based on USCIS's arbitrarily uneven application of Memorandum 22. Id. at 396. Similarly situated applicants—all of whom were eligible for expedited processing—were treated differently. Id.
Here, plaintiffs allege that the "reference" name check is applied to all naturalization applicants. (Compl. ¶ 47.) For a significant number of applicants, this process does not delay their applications. (Compl. ¶ 33.) For others, including plaintiffs, the name check holds-up their applications for months and even years. But unlike USCIS's uneven application of Memorandum 22 in Kaplan, Plaintiffs have not alleged that defendants have purposefully favored one class of applicants over another when implementing the namecheck. Instead, plaintiffs allege that the effect of defendants' even-handed application of the name check is that some applications take longer to process. But plaintiffs have not alleged that USCIS intends for this "disparate effect" to occur. See Kaplan, 481 F.Supp.2d at 395.
Even if plaintiffs had alleged purposeful discrimination, their claim would still fail because USCIS had a rational basis for implementing the name check procedure.[9] Plaintiffs allege that the name check only "rarely, if ever" reveals derogatory information that cannot be obtained using faster, more efficient methods. But the question is not whether the name check is good policy; the question is whether it is rational in relation to a legitimate interest. United States v. Jester, 139 F.3d 1168, 1171 (7th Cir. 1998) ("[W]e will not invalidate a statute unless it draws distinctions that simply make no sense.").[10] USCIS has a legitimate interest in ensuring that naturalization benefits are conferred on worthy individuals. Omeiri, 2007 WL 2121998, at *3 ("The purpose of the background checks within the context of the Immigration and Naturalization Act is to ensure that only worthy applicants are granted the privilege of United States citizenship."). We do not believe that the presence of an applicant's name in an FBI file is so unlikely to reveal derogatory information that the records search is irrational.
CONCLUSION
Defendants' Motion to Dismiss Under Fed. R. Civ. P. 12 (50) is granted in part and denied in part. As explained in the order of this date, we grant defendants' motion to dismiss Counts I-V of plaintiffs' complaint. We deny defendants' motion to dismiss Count VI pursuant to Fed. R. Civ. P. 12(b)(1). We have jurisdiction to adjudicate plaintiffs' applications, but nevertheless remand to USCIS. Accordingly, we dismiss Count VI of plaintiffs' complaint requesting adjudication pursuant to § 1447(b).
[1] Defendants have attached lengthy declarations to their motion to dismiss describing the background check, generally. We have excluded these materials in ruling on defendants' motion to dismiss except for those portions of defendants' declarations that plaintiffs cite in their Second Amended Complaint. See, e.g., Compl. ¶ 48; see also Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993) ("Documents that a

defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.").
[2] Defendants also rely on Walji v. Gonzales, ___ F.3d ___, 2007 WL 174911 (5th Cir. 2007), which reached the same conclusion as the court in Danilov, though for different reasons. However, the Fifth Circuit has since withdrawn its opinion, and on September 14, 2007 issued a superseding opinion in which it reversed course and held that an applicant's interview is the "examination" for purposes of § 1447(b). See Walji v. Gonzales, No. 06-20397, at 16 (5th Cir. Sept. 14, 2007) (attached as Ex. A to Plaintiff's Notice of Fifth Circuit Reversal of Its Walji Opinion).
[3] In this case, and in numerous other cases, the USCIS disregarded its own regulation and performed the interview without first obtaining the a "definitive response" from the FBI. See 8 C.F.R § 335.2; see also Alhamedi v. Gonzales, No. 07 Civ. 2541(JGK), 2007 WL 1573935, *4 (S.D.N.Y. May 30, 2007)("CIS could have avoided the present problem by following its own regulations and postponing its "examination" of Alhamedi until the FBI had cleared his name, but that path was not taken.").
[4] Because we have determined that remand is appropriate, we do not reach defendants' argument that plaintiffs' claims should be severed before conducting individualized hearings to adjudicate their applications. See Mot. to Dismiss at 12.
[5] Plaintiffs imply that this problem would largely resolve itself if we eliminated the name check requirement, as it is the chief source of the delays. For the reasons discussed infra, we decline to abolish the name check requirement.
[6] In deciding whether to request an expedited name check, USCIS may consider, among other criteria, "[m]ilitary deployment" and "critical medical conditions." See USCIS Clarifies Criteria to Expedite FBI Name Check, available at http://www.uscis.gov/files/pressrelease/ExpediteNameChk022007.pdf. On February 20, 2007, USCIS discontinued its policy of requesting expedited name checks whenever an applicant filed a federal lawsuit. Id. Without expressing an opinion about whether that criterion was appropriate, we note that it is no longer a basis for challenging USCIS's policy.
[7] See Konchitsky v. Chertoff, No. C-07-00294 RMW, 2007 WL 2070325, at *6 (N.D.Cal. July 13, 2007) ("[C]ourts squarely addressing the issue of whether they have jurisdiction to compel the FBI to perform name checks in connection with adjustment of status petitions have overwhelmingly concluded that they do not"); Zaytsev v. Gantner, No. 04 Civ.7101 WHP, 2004 WL 2251665, at *1 (S.D.N.Y. Sept. 24, 2004) ("The Zaytsevs have pointed to no authority demonstrating that the FBI owes a duty to conduct background checks, and this Court has found no such authority.").
[8] Defendants do not specify whether USCIS is interpreting the statute or the implementing regulation. In this particular case, the distinction is irrelevant because Pub.L. No. 105-119 does not authorize USCIS to require a full criminal background check; it requires it. Cf. Hoctor v. United States Dept. of Agriculture, 82 F.3d 165, 169 (7th Cir. 1996) (noting that an agency rule that purports to "interpret" a statute authorizing the agency to impose a duty in fact imposes such a duty). The question here, then, is: "what is a `full criminal background check'?"
[9] Plaintiffs concede as much when they note that defendants may properly distinguish between name checks with a "hit" and those without "hits". (Pl. Opp'n. at 15 n.7.)
[10] The Ombudsman's Report generally describes an overtaxed system lacking the resources required to adjudicate the many name check requests that the FBI receives. Moreover, it raises legitimate questions about whether the benefits of the program outweigh its costs. But these are policy issues better addressed to the political branches of government.

 
 Case: 1:06-cv-02518 Document #: 92 Filed: 06/13/08 Page 1 of 11 PageID #:1169

06-2518.081-RSK
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

June 13, 2008

YAN BASHKIN et al., Plaintiffs, v.
PETER D. KEISLER et al., Defendants.

)

)

)

)

)

No. 06 C 2518

)

)

)

)

MEMORANDUM OPINION

Two motions are before the court: (1) defendants’ motion to

dismiss plaintiffs’ complaint pursuant to Fed. R. Civ. P. 12(b)(1)

and (6); and (2) plaintiffs’ motion to dismiss their complaint as

moot and to vacate our September 20, 2007 opinion. For the reasons

explained below, defendants’ motion is denied as moot and

plaintiffs’ motion is granted in part and denied in part.

BACKGROUND

The parties agree that this case should be dismissed but do

not agree upon what grounds. Plaintiffs are lawful permanent

residents of the United States who applied to be naturalized as

United States citizens. Their six-count complaint, filed

individually and on behalf of a putative class of similarly

situated applicants, alleges,

inter alia , that defendants

unreasonably delayed adjudicating their applications. After

plaintiffs filed their original complaint in May 2006, several of

Case: 1:06-cv-02518 Document #: 92 Filed: 06/13/08 Page 2 of 11 PageID #:1170

- 2 -

the named plaintiffs were voluntarily

dismissed after USCIS

adjudicated their applications. We permitted plaintiffs to file a

Third Amended Complaint to join additional plaintiffs prior to

ruling on defendants’ motion to dismiss. On September 20, 2007, we

granted defendants’ motion and dismissed plaintiffs’ complaint

without prejudice, giving plaintiffs until November 12, 2007 to

file an amended complai nt or else we would dismiss the case with

prejudice. See Antonishin v. Keisler , No. 06 CV 2518, 2007 WL

2788841 (N.D. Ill. Sept. 20, 2007). After plaintiffs filed their

Fourth Amended Complaint, 1 but before defendants renewed their

motion to dismiss, all of the named plaintiffs’ applications were

adjudicated. (See Loutas Decl., attached to Defs.’ Renewed Mot. to

Dismiss Pls.’ Fourth Amended Compl. under Fed. R. Civ. P. 12,

(hereinafter “Defs.’ Mot.”), ¶ 4.) Plaintiffs have elected not to

request leave to join additional named plaintiffs, and now move to

dismiss this case as moot and to vacate our September 20, 2007

opinion and order. (See Mem. in Opp’n to Govt.’s Mot. to Dismiss

and in Support of Pls.’ Mot. to Dismiss as Moot and to Vacate the

Court’s Opinion, (hereinafter, “Pls.’ Mem.”).) Defendants contend

that only Count VI, in which the named plaintiffs ask us to

adjudicate their applications pursuant to 8 U.S.C. § 1447(b), is

moot. (See Defs.’ Mot. at 3.) They argue that, applying the

1/ We effectively granted leave to file the complaint one day late after defendants failed to object when the new complaint was filed on November 13, 2008.

Case: 1:06-cv-02518 Document #: 92 Filed: 06/13/08 Page 3 of 11 PageID #:1171
- 3 -
reasoning of our September 20, 2007 opinion, we should dismiss the remaining counts for failure to state a claim. (Id. at 2-3.)
DISCUSSION A. Whether by Adjudicating Plaintiffs’ Applications Defendants
Have Mooted Plaintiffs’ Class-Based Claims Defendants argue that the class-based claims are not moot because “they have already been dismissed for failure to state a claim; consequently, those claims cannot become moot by defendants’ actions.” (Defs.’ Reply in Supp. of Mot. to Dismiss and Opp’n to Pls.’ Mot. to Dismiss as Moot and to Vacate the Court’s Sept. 20, 2007 Op. (hereinafter, “Defs.’ Reply”) at 4.) This argument ignores the fact that plaintiffs have filed a Fourth Amended Complaint. See Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999) (“[W]hen a plaintiff files an amended complaint, the new complaint supersedes all previous complaints and controls the case from that point forward.”). While that complaint may not contain much in the way of “new” allegations, it is the operative complaint in this litigation and we have not yet ruled whether it states a nonspeculative claim for relief. Before we can address the substance of plaintiffs’ complaint, we must first determine whether there is still a live controversy between the parties. See Hall v. Beals, 396 U.S. 45, 48 (1969) (A live controversy must exist “if we are to avoid advisory opinions on abstract propositions of law.”).

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“A case becomes moot when the dispute between the parties no

longer rages, or when one of the parties loses his personal

interest in the outcome of the suit.” Holstein v. City of Chicag,o

29 F.3d 1145, 1147 (7th Cir. 1994). With certain exceptions not

applicable to this case — in which no class has been certified and

no motion for certification is pending — this p rinciple also

applies to class actions. Banks v. Nat’l Collegiate Athletic

Assn., 977 F.2d 1081, 1085 (7th Cir. 1992). In Banks

, the

plaintiff challenged NCAA rules prohibiting athletes from resuming

their college careers after entering a professional draft and/or

hiring an agent. Id. at 1084. Banks sought a preliminary

injunction prohibiting the NCAA from enforcing these rules so that

he could be reinstated for the 1990 football season. Id.

The

trial court denied his request, effectively ending his bid to be

reinstated because the following season fell outside of Banks’

five-year window of athletic eligibility. Id. at 1084 n.4. He

nevertheless sought to enjoin the “no-draft” and “no-agent” rules

on behalf of a class of similarly situated student athletes. Id.

at 1085. The Court ruled that the five-year eligibility rule

prevented him from having “a personal stake in whether the NCAA

continue[d] to enforce its no-draft and no-agent rules.” Id.

Because Banks was no longer a member of the class, and there was

“no class certification ruling to appeal,” his class-based claims

were moot. Id. at 1086.

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Applying Banks, we conclude that plaintiffs no longer have a personal interest in the injunctive relief sought on behalf of the putative class. Because their applications have been adjudicated, they no longer have a personal interest in compelling the defendants to adjudicate applications and criminal background checks in a timely manner (Counts I-III). Nor do they have a personal interest in preventing USCIS from enforcing its name-check rule (Count IV), which is a component of the adjudication process. And although plaintiffs have not requested any specific relief in conjunction with their Fifth Amendment equal protection claim (Count V), injunctive relief for that alleged violation is foreclosed for the same reasons. However, neither party addresses plaintiffs’ request for damages. (See Pl. Compl. at 22, ¶ E.) A plaintiff may continue to pursue compensatory damages — which are “quintessentially backward looking,” Landgraf v. USI Film Product,s 511 U.S. 244, 282 (1994) — even after his claim for injunctive relief has become moot. See, e.g. , Brown v. Bartholomew Consol. School Corp., 442 F.3d 588, 596 (7th Cir. 2006); Bank,s 977 F.2d at 1086 n.7.2 Sovereign immunity protects the Department of Homeland Security, the USCIS, the FBI and their officers — acting in their
2/ See also Intrepid v. Pollock , 907 F.2d 1125, 1131 (Fed. Cir. 1990) ("[A]lthough subsequent acts may moot a request for particular relief or a count, the constitutional requirement of a case or controversy may be supplied by the availability of other relief.").

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official capacity — from claims for money damages3. Small v. Chao,
398 F.3d 894, 897 (7th Cir. 2005) (federal agency protected by
sovereign immunity); Sterling v. United State,s 85 F.3d 1225, 1228-
29 (7th Cir. 1996) (sovereign immunity extends to federal employees
acting in their official capacity). We are skeptical that
plaintiffs could establish that the government had waived sovereign
immunity in this context,4 but in any event, by filing their motion
to dismiss we understand that plaintiffs intend to abandon their
claim for damages. We conclude that plaintiffs no longer have a
personal interest in the outcome of this lawsuit.
B. Whether Vacatur is Mandated or Warranted
Plaintiffs contend that, because this case is moot, the
Supreme Court’s decision in United States v. Munsingwear, 340 U.S.
36 (1950) compels us to vacate our September 20, 2007 decision. In
dicta,5 the Munsingwear Court observed:
3/ None of the individual defendants is being sued in his or her individual capacity. Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
4/ Plaintiffs cite several statutory and constitutional bases for relief in their complaint, none of which support the contention that the defendants have waived their immunity to suits for money damages. See Czerkies v. U.S. Dept. of Labor, 73 F.3d 1435, 1438 (7th Cir. 1996) (APA: “The Administrative Procedure Act waives the federal government's sovereign immunity from actions seeking judicial review of federal administrative decisions, provided the action is not one for ‘money damages.’”) (quoting APA, 5 U.S.C. § 702); Coggeshall Development Corp. v. Diamond, 884 F.2d 1, 3 (1st Cir. 1989) (Mandamus Act: "The provisions of 28 U.S.C. § 1361 creating the federal mandamus action do notconstitute a waiver of sovereign immunity by the United States."); Garcia v. United St ates, 666 F.2d 960, 966 (5th Cir. 1982) (Constitution: "The Constitution does not waive the Government's sovereign immunity in a suit for damages.").
5/ In Munsingwear , the government did not file a motion to vacate the district court’s decision dismissing its claim after its appeal of that decision became moot. 340 U.S. at 40. The district court then held that its unreviewed

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The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss. . . . That procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance.
340 U.S. at 39. Later, in U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership, the Supreme Court “[stood] by Munsingwear’s dictum
that mootness by happenstance provides sufficient reason to
vacate.” 513 U.S. 18, 25 n.3 (1994). At the same time, the Court
emphasized that it is the burden of the party “seeking relief from
the status quo” to establish “equitable entitlement to the
extraordinary remedy of vacatur.” Id. at 26. In evaluating a
motion to vacate, the court must balance the litigant’s private
interest against the public’s interest in judicial precedents,
which are “valuable to the legal community as a whole” and “should
stand unless a court concludes that the public interest would be
served by vacatur.” Id. at 26-27 (quoting Izumi Seimitsu Kogyo
Kabushiki Kaisha v. U. S. Philips Corp., 510 U.S. 27, 40 (1993)).
Neither Munsingwear nor U.S. Bancorp controls the disposition of a
case mooted prior to appeal. Our au thority to vacate our own
rulings is derived from Rule 60(b), not the statute authorizing
decision was res judicata in a related suit. Id. at 37. The Supreme Court affirmed this decision, concluding that the government had, by failing to file a motion to vacate the district court’s judgment, “slept on its rights.” Id.at 41. It was in this cont ext that the Court discussed its practice of vacating lower court judgments in cases that become moot on their way to the Supreme Court. Id. at 39.

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appellate vacatur. Cf. 28 U.S.C. § 2106 (“The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review . . . .”). Nevertheless, we believe that Munsingwear and U.S. Bancorp are instru ctive. See Valero Terrestrial Corp. v. Paige , 211 F.3d 112, 117 (4th Cir. 2000) (Concluding that the appellate and district court vacatur power, though derived from different sources, should be governed by the same standards.).
Plaintiffs’ claims for injunctive relief became moot through no fault of their own. See U.S. Bancorp, 513 U.S. 18, 25 n.3. On the other hand, their claim for damages, which they have voluntarily abandoned, could have supported a justiciable controversy even if it was unlikely that damages were legally available. See Liberles v. Cook County, 709 F.2d 1122, 1127 (7th Cir. 1983) (“A claim may become moot when the plaintiff receives the relief sought or when it is factually, not legally, impossible to receive such relief.”). In any event, the consequences of this case becoming moot — whether they arose by “happenstance” or otherwise — are negligible given the procedural posture of this case. The Munsingwear Court was concerned that an unreviewed decision would have preclusive effect in future litigation between parties. 340 U.S. at 40 (Vacatur “clears the path for future relitigation of the issues between the parties.”); see also In re

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- 9 -
Smith, 964 F.2d 636, 638 (7th Cir. 1992) (“We vacate unappealable decisions, to prevent them from having a preclusive effect.”). We doubt that another court would give preclusive effect to our interlocutory decision dismissing plaintiffs’ complaint without prejudice.6 Moreover, the issue is largely academic with respect to the 17 plaintiffs who were naturalized as United States citizens. (See Loutas Decl. ¶4.) We do not believe that the remote prospect of further litigation between these plaintiffs and the defendants warrants the extraordinary remedy of vacatur. See, e.g., Westmoreland v. Nat’l Transp. Safety Bd,. 833 F.2d 1461, 1463 (11th Cir. 1987) (“Since we have thus concluded there is an insufficient showing that the administrative order will have any real continuing effect on Westmoreland, it would be incongruous for this Court to apply Munsingwear and Mechling [dealing with vacatur of unreviewed agency decisions] and vacate the order.”). Only plaintiff Ismail Suleiman’s naturalization application was denied. (See Loutas Decl. ¶4.) If he reapplied (and we are not aware of any impediment to his doing so), he may face the same delays that

6/ Compare Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 396 (1990)

("‘[D]ismissal ... without prejudice' isa dismissal that does not ‘operat[e] as

an adjudication upon the merits,' Rule 41(a)(1), and thus does not have a res

judicata effect."), and Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 566

(7th Cir. 1984) (Observing in dicta that, "by definition," neither res judicata

nor collateral estoppel arise from a

dismissal without prejudic e.), with

Employees Own Federal Credit Union v. City of Defiance, Ohio, 752 F.2d 243, 245

(6th Cir. 1985) (concluding that a state court decision dismissing the

plaintiffs’ complaint without prejudice was sufficiently final to preclude

relitigating identical issues in a later federal suit). Employees

is

distinguishable insofar as the plaintiff in that case voluntarily dismissed its

complaint, preventing any final judgment from being entered. Id.

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- 10 -
he sought to challenge in this lawsuit. Although we do not believe that our prior decision would foreclose Mr. Suleiman’s opportunity to challenge these delays a second time, we will vacate our decision as to him to settle the matter conclusively.
Turning to the public interest factor, plaintiffs argue that we granted defendants’ motion to dismiss prematurely. (Pl. Mem. at 11.) It would be unfair, they suggest, if third parties — including the hundreds of applicants litigating similar issues in other courts — were affected by our decision. We are not persuaded that our ruling was premature or incorrect — this is effectively plaintiffs’ third bite at the apple (we previously denied their motion to reconsider) — and we see no reason to undercut whatever persuasive value it may have. See In re Memorial Hospital of Iowa County, Inc. , 862 F.2d 1299, 1302 (7th Cir. 1988) (Although a vacated decision is still “available to read,” its significance is “cloud[ed] and diminish[ed].”); see also In re Smith, 964 F.2d at 638 (“We do not vacate opinions, to prevent them from having a precedential effect.”). While we agree with plaintiffs that other courts and litigants are interested in the matters addressed in our September 20, 2007 opinion, 7 this only strengthens our view that
7/ Cf. Valero Terrestrial , 211 F.3d at 121 (Concluding that public interest in the district court's declaratory judgment order was weak where the "statutory provisions that were declared unconstitutional eitherno longer exist or have been substantially revised, and there is no suggestion of their likely reenactment. . . .").

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- 11 -
our decision should be left intact. Vacatur is granted as to Mr. Suleiman, and denied as to the remaining plaintiffs.
CONCLUSION Defendants’ Renewed Motion to Dismiss Plaintiffs/ Petitioners’ Fourth Amended Complaint Under Fed. R. Civ. P. 12 (82) is denied as moot. Plaintiffs’ Motion to Dismiss as Moot and to Vacate the Court’s September 20, 2007 Opinion (86) is denied in part and granted in part. Plaintiffs’ case is dismissed with prejudice as moot, and our September 20, 2007 opinion and order is vacated as to plaintiff Ismail Suleiman, only.

DATE:

June 13, 2008

ENTER:

___________________________________________ John F. Grady, United States District Judge

 
 Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 1 of 15
NOLAN,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 5.1.1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:06−cv−02518

Alsamman et al v. Gonzales et al Assigned to: Honorable John F. Grady Cause: 8:1446 Petition for Naturalization Hearing
Plaintiff

Date Filed: 05/04/2006 Date Terminated: 06/13/2008 Jury Demand: Both Nature of Suit: 460 Deportation Jurisdiction: U.S. Government Defendant

Mohamed Alsamman TERMINATED: 01/26/2007

represented by David Powers Berten Competition Law Group, LLC 55 West Monroe Street Suite 1930 Chicago, IL 60603 (312) 629−1904 Email: berten@competelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Roth Midwest Immigrant &Human Rights Center 208 South LaSalle Suite 1818 Chicago, IL 60604 312−629−1960 Email: croth@heartlandalliance.org ATTORNEY TO BE NOTICED

Heena A. Musabji Council of American−Islamic Relations Chapter (CAIR−Chicago) 28 East Jackson Boulevand Suite 1410 Chicago, IL 60604 (312) 212−1520 Email: heena_musabji@yahoo.com ATTORNEY TO BE NOTICED

Plaintiff
Mohammed Alwatik TERMINATED: 08/03/2007

represented by David Powers Berten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Heena A. Musabji (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ahmad Assaf TERMINATED: 01/03/2007

represented by David Powers Berten (See above for address) TERMINATED: 01/03/2007 LEAD ATTORNEY

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 2 of 15

Charles Roth (See above for address) TERMINATED: 01/03/2007

Heena A. Musabji (See above for address) TERMINATED: 01/03/2007

Plaintiff
Hassan Belghali TERMINATED: 01/03/2007

represented by David Powers Berten (See above for address) TERMINATED: 01/03/2007 LEAD ATTORNEY

Charles Roth (See above for address) TERMINATED: 01/03/2007

Heena A. Musabji (See above for address) TERMINATED: 01/03/2007

Plaintiff
Hassan Damra TERMINATED: 10/11/2006

represented by David Powers Berten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Heena A. Musabji (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Farah Mohammed TERMINATED: 10/11/2006

represented by David Powers Berten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Heena A. Musabji (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jamal Hasan TERMINATED: 01/26/2007

represented by David Powers Berten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Heena A. Musabji (See above for address)

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 3 of 15

ATTORNEY TO BE NOTICED

Plaintiff
Ahmad Shaker Khaddash TERMINATED: 01/03/2007

represented by David Powers Berten (See above for address) TERMINATED: 01/03/2007 LEAD ATTORNEY

Charles Roth (See above for address) TERMINATED: 01/03/2007

Heena A. Musabji (See above for address) TERMINATED: 01/03/2007

Plaintiff
Basemand Sharaf and TERMINATED: 01/03/2007

represented by David Powers Berten (See above for address) TERMINATED: 01/03/2007 LEAD ATTORNEY

Charles Roth (See above for address) TERMINATED: 01/03/2007

Heena A. Musabji (See above for address) TERMINATED: 01/03/2007

Plaintiff
Tariq Saeed individually and on behalf of all individuals similarly situated, and

represented by David Powers Berten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Heena A. Musabji (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Arab American Action Network TERMINATED: 01/26/2007

represented by David Powers Berten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Heena A. Musabji (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ahsan Raza

represented by David Powers Berten (See above for address)

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 4 of 15

Heena A. Musabji Council of American−Islamic Relations 28 East Jackson Boulevand Suite 1410 Chicago, IL 60604 (312) 212−1520 Email: heena_musabji@yahoo.com ATTORNEY TO BE NOTICED

Plaintiff
Shabbir Ahmed TERMINATED: 08/03/2007

represented by Heena A. Musabji (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Siham El−Hamdaoui

represented by Heena A. Musabji (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mohamad Zaidan

represented by Heena A. Musabji (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Zia Rehman

represented by Heena A. Musabji (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sergey Antonishin

represented by David Powers Berten (See above for address)

Plaintiff Yan Bashkin

represented by David Powers Berten (See above for address)

Plaintiff Gafaar Dafalla

represented by David Powers Berten (See above for address)

Plaintiff Eltayeb Elbolok

represented by David Powers Berten (See above for address)

Plaintiff Nadeem Fazal

represented by David Powers Berten (See above for address)

Plaintiff Boris Goldfarb

represented by David Powers Berten (See above for address)

Plaintiff Inna Karasik

represented by David Powers Berten (See above for address)

Plaintiff

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 5 of 15

Mohammed Khan

represented by David Powers Berten (See above for address)

Plaintiff Sobia Khan

represented by David Powers Berten (See above for address)

Plaintiff Larisa Khaninayeva

represented by David Powers Berten (See above for address)

Plaintiff Vladimir Khlystov

represented by David Powers Berten (See above for address)

Plaintiff Abdi Mohamed

represented by David Powers Berten (See above for address)

Plaintiff Ashan Raza

represented by Ashan Raza PRO SE

Plaintiff Dora Reznik

represented by David Powers Berten (See above for address)

Plaintiff Abram Rosental

represented by David Powers Berten (See above for address)

Plaintiff Ilya Serebrennikov

represented by David Powers Berten (See above for address)

Plaintiff Yelena Serebrennikova

represented by David Powers Berten (See above for address)

Plaintiff Ismail Suleiman

represented by David Powers Berten (See above for address)

V.
Defendant
Alberto R Gonzales in his official capacity Attorney General of the United States TERMINATED: 09/19/2007

represented by Gina Elizabeth Brock United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 (312) 353−5300 Email: gina.brock@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel J. Davis U.S. Department of Justice

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 6 of 15

Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 305−9334 ATTORNEY TO BE NOTICED

Elizabeth J. Stevens U.S. Department of Justice Office of Immigration Litigation 1331 Pennsylvania Avenue, NW Suite 1220−36 Washington, DC 20044 (202) 616−9752 Email: elizabeth.stevens@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Michael Chertoff in his official capacity as Secretary of the Department of Homeland Security

represented by Gina Elizabeth Brock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Davis (See above for address) ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) ATTORNEY TO BE NOTICED

Sheila McNulty United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 (312) 353−5300 Email: sheila.mcnulty@usdoj.gov TERMINATED: 02/05/2007 ATTORNEY TO BE NOTICED

Defendant
Gerry Heinauer District Director of the Bureau of Citizenship and Immigration Services, Department of Homeland Security TERMINATED: 01/26/2007

represented by Gina Elizabeth Brock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel J. Davis (See above for address) ATTORNEY TO BE NOTICED

Elizabeth J. Stevens (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robert S Mueller, III in his official capacity as Director of the Federal Bureau of Investigation

represented by Gina Elizabeth Brock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Davis (See above for address) ATTORNEY TO BE NOTICED

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 7 of 15

Defendant Department of Homeland Security
Defendant United States Citizenship and Immigration Services
Defendant Federal Bureau of Investigation
Defendant Ruth Dorochoff
Defendant Department of Homeland Security

Elizabeth J. Stevens (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth J. Stevens U.S. Department of Justice 1331 Pennsylvania Avenue, NW Suite 1220−36 Washington, DC 20044 (202) 616−9752 Email: elizabeth.stevens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gina Elizabeth Brock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gina Elizabeth Brock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gina Elizabeth Brock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gina Elizabeth Brock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gina Elizabeth Brock (See above for address)

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 8 of 15

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Ruth Dorochoff

represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gina Elizabeth Brock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Federal Bureau of Investigation

represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gina Elizabeth Brock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
United States Citizenship and Immigration Services

represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gina Elizabeth Brock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Peter D. Keisler in his official capacity as Acting Attorney General of the United States

Date Filed 05/04/2006
05/04/2006 05/04/2006
05/04/2006
05/04/2006

# Docket Text
1 COMPLAINT filed by Ahmad Assaf, Hassan Belghali, Hassan Damra, Farah Mohammed, Jamal Hasan, Mohamed Alsamman, Ahmad Shaker Khaddash, Basemand Sharaf, Tariq Saeed, Arab American Action Network, Mohammed Alwatik; Jury Demand.(vmj, ) (Entered: 05/05/2006)
2 CIVIL Cover Sheet (vmj, ) (Entered: 05/05/2006)
3 ATTORNEY Appearance for Plaintiffs Ahmad Assaf, Hassan Belghali, Hassan Damra, Farah Mohammed, Jamal Hasan, Mohamed Alsamman, Ahmad Shaker Khaddash, Basemand Sharaf, Tariq Saeed, Arab American Action Network, Mohammed Alwatik by David Powers Berten (vmj, ) (Entered: 05/05/2006)
4 ATTORNEY Appearance for Plaintiffs Ahmad Assaf, Hassan Belghali, Hassan Damra, Farah Mohammed, Jamal Hasan, Mohamed Alsamman, Ahmad Shaker Khaddash, Basemand Sharaf, Tariq Saeed, Arab American Action Network, Mohammed Alwatik by Charles Roth (vmj, ) (Entered: 05/05/2006)
5 ATTORNEY Appearance for Plaintiffs Ahmad Assaf, Hassan Belghali, Hassan Damra, Farah Mohammed, Jamal Hasan, Mohamed Alsamman, Ahmad Shaker Khaddash, Basemand Sharaf, Tariq Saeed, Arab American Action Network,

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 9 of 15

05/05/2006 05/09/2006 06/08/2006 06/08/2006 06/09/2006
06/20/2006 06/20/2006 06/23/2006
06/28/2006 06/28/2006 06/28/2006 06/28/2006 06/28/2006 07/07/2006 07/07/2006 07/11/2006
07/14/2006 07/14/2006

Mohammed Alwatik by Heena A. Musabji (vmj, ) (Entered: 05/05/2006)
7 SUMMONS Issued as to Defendants Alberto R Gonzales, Michael Chertoff, US Attorney's Office, Attorney General(cdy, ) (Entered: 05/09/2006)
8 SUMMONS Issued as to Defendant Gerry Heinauer. (air, ) (Entered: 05/10/2006)
9 MOTION by Defendant Alberto R Gonzales for extension of time to file answer regarding complaint 1 (McNulty, Sheila) (Entered: 06/08/2006)
10 NOTICE of Motion by Sheila McNulty for presentment of motion for extension of time to file answer, motion for relief 9 before Honorable Paul E. Plunkett on 6/13/2006 at 10:15 AM. (McNulty, Sheila) (Entered: 06/08/2006)
11 MINUTE entry before Judge Paul E. Plunkett : Defendants' unopposed motion to extend deadline to 7/18/2006 to file an answer or responsive motion 9 is advanced and is granted. Status hearing set for 7/25/2006 at 11:00 AM. (clw, ) (Entered: 06/09/2006)
13 APPLICATION for Leave to Appear Pro Hac Vice on behalf of Alberto R Gonzales, Michael Chertoff, Gerry Heinauer, Robert S Mueller, III by Elizabeth J. Stevens; Order entered. (mb, ) (Entered: 06/27/2006)
14 APPLICATION for Leave to Appear Pro Hac Vice on behalf of Alberto R Gonzales, Michael Chertoff, Gerry Heinauer, Robert S Mueller, III by Daniel J. Davis; Order entered. (mb, ) (Entered: 06/27/2006)
12 AMENDED complaint by Ahmad Assaf, Hassan Belghali, Hassan Damra, Farah Mohammed, Mohamed Alsamman, Ahmad Shaker Khaddash, Basemand Sharaf, Tariq Saeed, Arab American Action Network, Mohammed Alwatik against all defendants (Berten, David) (Entered: 06/23/2006)
15 SUMMONS Returned Executed by Plaintiffs as to Michael Chertoff served on 5/12/2006, answer due 7/11/2006 (mb, ) (Entered: 06/29/2006)
16 SUMMONS Returned Executed by Plaintiffs as to Alberto R Gonzales served on 5/12/2006, answer due 7/11/2006 (mb, ) (Entered: 06/29/2006)
17 SUMMONS Returned Executed by Plaintiffs as to United States Attorney c/o Sheila McNulty served on 5/12/2006, answer due 7/11/2006 (mb, ) (Entered: 06/29/2006)
18 SUMMONS Returned Executed by Plaintiffs as to Gerry Heinauer served on 5/12/2006, answer due 7/11/2006 (mb, ) (Entered: 06/29/2006)
19 SUMMONS Returned Executed by Plaintiffs as to Robert S Mueller, III served on 5/12/2006, answer due 7/11/2006 (mb, ) (Entered: 06/29/2006)
20 MOTION by Defendant Michael Chertoff for leave to file excess pages Defendant's Unopposed Motion to File in Excess of Fifteen Pages (McNulty, Sheila) (Entered: 07/07/2006)
21 NOTICE of Motion by Sheila McNulty for presentment of motion for leave to file excess pages 20 before Honorable Paul E. Plunkett on 7/11/2006 at 10:15 AM. (McNulty, Sheila) (Entered: 07/07/2006)
22 MINUTE entry before Judge Paul E. Plunkett :Defendants' unopposed motion for leave to file brief in support of motion to dismiss in excess of 15 pages not to exceed 25 pages 20 is granted; plaintiffs are also given leave to file a response brief not to exceed 25 pages. (clw, ) (Entered: 07/11/2006)
23 MINUTE entry before Judge Paul E. Plunkett : Status hearing set for 7/25/2006 is stricken since this case has been reassigned to Judge Grady. (clw, ) (Entered: 07/14/2006)
24 EXECUTIVE COMMITTEE ORDER: Case reassigned to Judge John F. Grady for all further proceedings. Signed by Executive Committee on 7/14/06. (mb, ) (Entered: 07/18/2006)

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 10 of 15

07/18/2006 07/18/2006
07/18/2006 07/18/2006 08/17/2006 08/18/2006 08/18/2006
09/01/2006
09/06/2006
09/20/2006 10/11/2006 10/11/2006 10/12/2006
10/20/2006 12/13/2006

25 MOTION by Defendants Alberto R Gonzales, Michael Chertoff, Gerry Heinauer, Robert S Mueller, III to dismiss Plaintiffs'/Petitioners' Complaint for Naturalization and Other Relief (Stevens, Elizabeth) (Entered: 07/18/2006)
26 MEMORANDUM by Alberto R Gonzales, Michael Chertoff, Gerry Heinauer, Robert S Mueller, III in Support of motion to dismiss 25 Plaintiffs'/Petitioners' Complaint for Naturalization and Other Relief (Attachments: # 1 Exhibit Dorochoff Declaration# 2 Exhibit Cannon Declaration# 3 Exhibit Collett Declaration# 4 Exhibit Ortiz Declaration)(Stevens, Elizabeth) (Entered: 07/18/2006)
27 NOTICE of Motion by Sheila McNulty for presentment of motion to dismiss 25 before Honorable John F. Grady on 9/6/2006 at 10:30 AM. (McNulty, Sheila) (Entered: 07/18/2006)
28 Defendants'/Respondents' Partial ANSWER to amended complaint for Naturalization and Other Relief by Alberto R Gonzales, Michael Chertoff, Gerry Heinauer, Robert S Mueller, III(Stevens, Elizabeth) (Entered: 07/18/2006)
29 DESIGNATION of Sheila McNulty as U.S. Attorney for Defendant Michael Chertoff (McNulty, Sheila) (Entered: 08/17/2006)
30 RESPONSE Plaintiff's Opposition to Defendants' Motion to Dismiss (Attachments: # 1 # 2)(Berten, David) (Entered: 08/18/2006)
31 DECLARATION of David Berten regarding response in opposition to motion 30 by Ahmad Assaf, Hassan Belghali, Hassan Damra, Farah Mohammed, Jamal Hasan, Mohamed Alsamman, Ahmad Shaker Khaddash, Basemand Sharaf, Tariq Saeed, Arab American Action Network, Mohammed Alwatik Rule 56(f) Declaration Opposing Entry of Summary Judgment (Berten, David) (Entered: 08/18/2006)
32 REPLY by Alberto R Gonzales, Michael Chertoff, Gerry Heinauer, Robert S Mueller, IIIin Support of MOTION by Defendants Alberto R Gonzales, Michael Chertoff, Gerry Heinauer, Robert S Mueller, III to dismiss Plaintiffs'/Petitioners' Complaint for Naturalization and Other Relief 25 (Attachments: # 1 Appendix Appendix 1# 2 Appendix Appendix 2)(Stevens, Elizabeth) (Entered: 09/01/2006)
33 MINUTE entry before Judge John F. Grady : Status hearing held on 9/6/2006. Status hearing set for 9/20/2006 at 10:30 AM. As stated in open court, parties are directed to confer and discuss what period of time wil be involed to complete the investigation. All fully briefed motions are taken under advisement. Mailed notice (jlj, ) (Entered: 09/07/2006)
34 MINUTE entry before Judge John F. Grady : Status hearing held on 9/20/2006. Status hearing set for 10/11/2006 at 10:30 AM. Mailed notice (jlj, ) (Entered: 09/20/2006)
36 MINUTE entry before Judge John F. Grady : Plaintiff's unopposed motion to dismiss named plaintiffs Hassan Damra and Mohammed Farah is granted. These parties are hereby voluntarily dismissed. Status hearing held and continued to 12/13/2006 at 10:30 AM. Mailed notice (mb, ) (Entered: 10/12/2006)
37 MOTION by Plaintiffs to dismiss named plaintiffs. (mb, ) (Entered: 10/16/2006)
35 MOTION by Plaintiffs Ahmad Assaf, Hassan Belghali, Hassan Damra, Farah Mohammed, Jamal Hasan, Mohamed Alsamman, Ahmad Shaker Khaddash, Basemand Sharaf, Tariq Saeed, Arab American Action Network, Mohammed Alwatik to dismiss Named Plaintiff's Hassan Damra and Mohammed Farah (Berten, David) (Entered: 10/12/2006)
38 ALIAS Summons Issued as to Michael Chertoff, Robert S Mueller, III. (mb, ) (Entered: 10/23/2006)
39 MINUTE entry before Judge John F. Grady : Motion to dismiss 25 is denied without prejudice. Oral motion by plaintiff to file an amended complaint is granted. Amended complaint to be filed on or before 1/12/07. Motion to dismiss 37 is granted. Hassan Damra and Mohammed Farah are dismissed as plaintiffs to this action. Status hearing held on 12/13/2006. Status hearing set for 1/31/2007 at 10:30

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 11 of 15

01/03/2007 01/03/2007 01/10/2007 01/10/2007 01/11/2007 01/12/2007 01/26/2007 02/05/2007
02/14/2007
02/14/2007 02/20/2007
02/28/2007

AM. Mailed notice (jlj, ) (Entered: 12/13/2006)
40 MINUTE entry before Judge John F. Grady : Enter unopposed order dismissing named plaintiffs Hassan Belghali, Ahmad Shaker Khaddash, Basem Sharaf and Ahmad Assaf with prejudice, nun pro tunc 11/15/06.Mailed notice (mb, ) (Entered: 01/05/2007)
41 UNOPPOSED Order Dismissing Named Plaintiffs Hassan Belghali, Ahmad Shaker Khaddash, Basem Sharaf, and Ahmad Assaf Signed by Judge John F. Grady on 1/3/2007(mb, ) (Entered: 01/05/2007)
42 MOTION by Plaintiffs Mohamed Alsamman, Tariq Saeed, Arab American Action Network, Mohammed Alwatik for extension of time to amend (Joint Motion) (Roth, Charles) (Entered: 01/10/2007)
43 NOTICE of Motion by Charles Roth for presentment of motion for extension of time to amend 42 before Honorable John F. Grady on 1/17/2007 at 10:30 AM. (Roth, Charles) (Entered: 01/10/2007)
44 MINUTE entry before Judge John F. Grady :Motion for extension of time to Amend 42 is entered and continued.In Court hearing set for 1/17/2007 at 12:30 PM. Hearing set for 10:30am stricken and reset to 12:30 pm., due to the schedule of this court.Mailed notice (jlj, ) (Entered: 01/11/2007)
45 MINUTE entry before Judge John F. Grady :Motion for extension of time to Amend 42 is granted. Status hearing set for 2/28/2007 at 10:30 AM. Status hearing set for 1/31/07 stricken. Hearing set for 01/17/07 stricken.Mailed notice (jlj, ) (Entered: 01/12/2007)
46 Second AMENDED complaint by Ahsan Raza, Shabbir Ahmed, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Tariq Saeed, Mohammed Alwatik against all defendants and terminating Jamal Hasan; Gerry Heinauer; Mohamed Alsamman and Arab American Action Network (Musabji, Heena) (Entered: 01/26/2007)
47 WITHDRAWING Sheila McNulty as counsel for Defendants Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Department of Homeland Security, Ruth Dorochoff, Federal Bureau of Investigation, United States Citizenship and Immigration Services, Alberto R Gonzales, Michael Chertoff, Gerry Heinauer, Robert S Mueller, III and substituting Gina Elizabeth Brock as counsel of record (Brock, Gina) (Entered: 02/05/2007)
48 MOTION by Defendants Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Alberto R Gonzales, Michael Chertoff, Robert S Mueller, III for extension of time, MOTION by Defendants Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Alberto R Gonzales, Michael Chertoff, Robert S Mueller, III for leave to file excess pages (Stevens, Elizabeth) (Entered: 02/14/2007)
49 NOTICE of Motion by Elizabeth J. Stevens for presentment of extension of time, motion for leave to file excess pages,,,, 48 before Honorable John F. Grady on 2/22/2007 at 10:30 AM. (Stevens, Elizabeth) (Entered: 02/14/2007)
50 MOTION by Defendants Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Alberto R Gonzales, Michael Chertoff, Robert S Mueller, III to dismiss under Fed. R. Civ. P. 12 (Attachments: # 1 Memorandum in Support# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Attachments# 7 Notice of Filing)(Stevens, Elizabeth) (Entered: 02/20/2007)
51 MINUTE entry before Judge John F. Grady :Motion for extension of time 48 is granted. Motion for leave to file excess pages 48 is granted. Status hearing held on 2/28/2007. Motion hearing held on 2/28/2007 regarding motion to dismiss, 50 . Response to motion to dismiss due by 03/23/07; reply due by 04/13/07. Mailed notice (jlj, ) (Entered: 03/01/2007)

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 12 of 15

03/07/2007 03/23/2007 03/23/2007 03/23/2007
03/23/2007
03/27/2007 04/04/2007 04/13/2007
04/23/2007
06/28/2007 07/24/2007 07/27/2007

52 RETURN of U.S. Post Office receipt, article 7004 2510 0001 9608 5370, received on 3/1/07. (smm) (Entered: 03/09/2007)
53 MOTION by Plaintiffs Ahsan Raza, Shabbir Ahmed, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Tariq Saeed, Mohammed Alwatik for leave to file excess pages Unopposed (Berten, David) (Entered: 03/23/2007)
54 NOTICE of Motion by David Powers Berten for presentment of motion for leave to file excess pages 53 before Honorable John F. Grady on 3/28/2007 at 10:30 AM. (Berten, David) (Entered: 03/23/2007)
55 RESPONSE by Ahsan Raza, Shabbir Ahmed, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Tariq Saeed, Mohammed Alwatikin Opposition to MOTION by Defendants Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Alberto R Gonzales, Michael Chertoff, Robert S Mueller, III to dismiss under Fed. R. Civ. P. 12 50 (Attachments: # 1 Exhibit A to Plaintiff's Opposition to Defendants' Motion to Dismiss# 2 Appendix Appendix I of 1447(b) Case Regarding Plaintiff's Opposition to Defendants' Motion to Dismiss# 3 Appendix Appendix II of 1447(b) Case Regarding Plaintiff's Opposition to Defendants' Motion to Dismiss# 4 Appendix Appendix III of 1447(b) Case Regarding Plaintiff's Opposition to Defendants' Motion to Dismiss)(Berten, David) (Entered: 03/23/2007)
56 STATEMENT by Plaintiffs Ahsan Raza, Shabbir Ahmed, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Tariq Saeed, Mohammed Alwatikin Support of MOTION by Defendants Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Alberto R Gonzales, Michael Chertoff, Robert S Mueller, III to dismiss under Fed. R. Civ. P. 12 50 (Berten, David) (Entered: 03/23/2007)
57 MINUTE entry before Judge John F. Grady :Motion for leave to file excess pages 53 is granted. Hearing set for 03/28/07 stricken. Mailed notice (jlj, ) (Entered: 03/27/2007)
58 Plaintiffs' Notice of Additional Authority by Ahsan Raza, Shabbir Ahmed, Mohamad Zaidan, Zia Rehman, Mohammed Alwatik (Attachments: # 1 Exhibit Kaplan Decision)(Roth, Charles) (Entered: 04/04/2007)
59 REPLY by Defendants Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Department of Homeland Security, Ruth Dorochoff, Federal Bureau of Investigation, United States Citizenship and Immigration Services, Alberto R Gonzales, Michael Chertoff, Robert S Mueller, III to motion to dismiss, 50 , response in opposition to motion,,, 55 Defendants/Respondents' Reply In Support Of The Motion To Dismiss Unider Fed. R. Civ. P. 12 (Attachments: # 1 Appendix A# 2 Appendix B# 3 Appendix C# 4 Appendix D)(Stevens, Elizabeth) (Entered: 04/13/2007)
60 ATTORNEY Appearance for Defendants Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Department of Homeland Security, Ruth Dorochoff, Federal Bureau of Investigation, United States Citizenship and Immigration Services, Alberto R Gonzales, Michael Chertoff, Robert S Mueller, III by Elizabeth J. Stevens for Sheri R. Glaser (Stevens, Elizabeth) (Entered: 04/23/2007)
61 Notice of Supplemental Legal Authority by Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Alberto R Gonzales, Michael Chertoff, Gerry Heinauer, Robert S Mueller, III (Attachments: # 1 Exhibit A)(Stevens, Elizabeth) (Entered: 06/28/2007)
62 NOTICE by all plaintiffs Plaintiff's Second Notice of New Authority (Attachments: # 1 Exhibit # 2)(Berten, David) (Entered: 07/24/2007)
63 MOTION by Plaintiffs Ahsan Raza, Shabbir Ahmed, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Tariq Saeed, Mohammed Alwatik to dismiss Named Plaintiffs Shabbir Ahmed and Mohammed Alwatik (Attachments: # 1 Text of Proposed Order Order Dismissing Named Plaintiffs)(Berten, David) (Entered:

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 13 of 15

08/03/2007 08/03/2007 09/17/2007 09/17/2007 09/17/2007
09/19/2007
09/19/2007 09/20/2007
09/20/2007 09/20/2007 09/28/2007
09/28/2007

07/27/2007)
64 MINUTE entry before Judge John F. Grady : Plaintiff's unopposed motion to dismiss named plaintiffs' Shabbir Ahmed and mohammed Alwatik 63 is granted. Enter order dismissing named plaintiffs Shabbir Ahmed and Mohammed Alwatik. Shabbir Ahmed and Mohammed Alwatik terminated.Mailed notice (rbf, ) (Entered: 08/07/2007)
65 ORDER Dismissing Named Plaintiffs Shabbir Ahmed and Mohammed Alwatik Signed by Judge John F. Grady on 8/3/2007.(rbf, ) (Entered: 08/07/2007)
66 MOTION for leave to file an Amended Complaint (Attachments: # 1 Proposed Third Amended Complaint)(Berten, David) (Entered: 09/17/2007)
67 NOTICE of Motion by David Powers Berten for presentment of motion for leave to file 66 before Honorable John F. Grady on 9/19/2007 at 10:30 AM. (Berten, David) (Entered: 09/17/2007)
68 Plaintiff's Notice of Fifth Circuit Reversal of Its Walji Opinion by Ahsan Raza, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Sergey Antonishin, Yan Bashkin, Gafaar Dafalla, Eltayeb Elbolok, Nadeem Fazal, Boris Goldfarb, Inna Karasik, Mohammed Khan, Sobia Khan, Larisa Khaninayeva, Vladimir Khlystov, Abdi Mohamed, Ashan Raza, Dora Reznik, Abram Rosental, Ilya Serebrennikov, Yelena Serebrennikova, Ismail Suleiman, Tariq Saeed (Attachments: # 1 Exhibit A to Alwatik Notice of New Authority re Walji)(Berten, David) (Entered: 09/17/2007)
69 Third AMENDED complaint by Ahsan Raza, Sergey Antonishin, Yan Bashkin, Gafaar Dafalla, Eltayeb Elbolok, Nadeem Fazal, Boris Goldfarb, Inna Karasik, Mohammed Khan, Sobia Khan, Larisa Khaninayeva, Vladimir Khlystov, Abdi Mohamed, Dora Reznik, Abram Rosental, Ilya Serebrennikov, Yelena Serebrennikova, Ismail Suleiman against all defendants (Berten, David) (Entered: 09/19/2007)
70 MINUTE entry before Judge John F. Grady : Hearing held on plaintiffs' motion for leave to amend the complaint. Plaintiffs' motion for leave to amend the complaint 66 is granted. mailed notice (vcf, ) (Entered: 09/20/2007)
71 MINUTE entry before Judge John F. Grady :Defendants Motion to Dismiss Under Fed. R. Civ. P. 12 50 is granted in part and denied in part. As explained in the order of this date, we grant defendants motion to dismiss Counts I−V of plaintiffs complaint. We deny defendants motion to dismiss Count VI pursuant to Fed. R. Civ. P. 12(b)(1). We have jurisdiction to adjudicate plaintiffs applications, but nevertheless remand to USCIS. Accordingly, we dismiss Count VI of plaintiffs complaint requesting adjudication pursuant to § 1447(b). Plaintiffs have until November 12, 2007 to amend their complaint to state a supportable claim. If they fail to do so, we will dismiss the case with prejudice at that time. mailed notice (vcf, ) (Entered: 09/21/2007)
72 ORDER Signed by Judge John F. Grady on 9/20/2007.(vcf, ) (Entered: 09/21/2007)
73 MEMORANDUM Opinion and Order Signed by Judge John F. Grady on 9/20/2007.(vcf, ) (Entered: 09/21/2007)
74 MOTION by Plaintiffs Ahsan Raza, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Sergey Antonishin, Yan Bashkin, Gafaar Dafalla, Eltayeb Elbolok, Nadeem Fazal, Boris Goldfarb, Inna Karasik, Mohammed Khan, Sobia Khan, Larisa Khaninayeva, Vladimir Khlystov, Abdi Mohamed, Ashan Raza, Dora Reznik, Abram Rosental, Ilya Serebrennikov, Yelena Serebrennikova, Ismail Suleiman, Tariq Saeed to amend/correct the Court's September 20, 2007 Order (Berten, David) (Entered: 09/28/2007)
75 NOTICE of Motion by David Powers Berten for presentment of motion to amend/correct, 74 before Honorable John F. Grady on 10/3/2007 at 10:30 AM. (Berten, David) (Entered: 09/28/2007)

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 14 of 15

09/28/2007
10/03/2007 11/13/2007 11/28/2007
11/28/2007 11/30/2007 01/26/2008
01/26/2008 02/06/2008 03/05/2008 03/26/2008
03/26/2008

76 MEMORANDUM by Ahsan Raza, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Sergey Antonishin, Yan Bashkin, Gafaar Dafalla, Eltayeb Elbolok, Nadeem Fazal, Boris Goldfarb, Inna Karasik, Mohammed Khan, Sobia Khan, Larisa Khaninayeva, Vladimir Khlystov, Abdi Mohamed, Ashan Raza, Dora Reznik, Abram Rosental, Ilya Serebrennikov, Yelena Serebrennikova, Ismail Suleiman, Tariq Saeed in support of motion to amend/correct, 74 the Court's Semtember 20, 2007 Order (Berten, David) (Entered: 09/28/2007)
77 MINUTE entry before Judge John F. Grady : Plaintiffs Rule 59(e) Motion Alter or Amend the Courts September 20, 2007 Order is denied.Mailed notice (vcf, ) (Entered: 10/04/2007)
78 Fourth AMENDED complaint by Yan Bashkin, Gafaar Dafalla, Nadeem Fazal, Boris Goldfarb, Sobia Khan, Larisa Khaninayeva, Vladimir Khlystov, Dora Reznik, Ilya Serebrennikov, Yelena Serebrennikova, Ismail Suleiman against all defendants (Attachments: # 1 Exhibit Interagency Agreement# 2 Exhibit NNCP Statistics)(Berten, David) (Entered: 11/13/2007)
79 MOTION by Defendants Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Department of Homeland Security, Ruth Dorochoff, Federal Bureau of Investigation, United States Citizenship and Immigration Services, Peter D. Keisler, Michael Chertoff, Robert S Mueller, III for extension of time to file responsive motion (Stevens, Elizabeth) (Entered: 11/28/2007)
80 NOTICE of Motion by Elizabeth J. Stevens for presentment of extension of time, 79 before Honorable John F. Grady on 12/5/2007 at 10:30 AM. (Stevens, Elizabeth) (Entered: 11/28/2007)
81 MINUTE entry before Judge John F. Grady :Unopposed motion for extension of time 79 is granted. Hearing set for 12/05/07 stricken. Defendants' response to the amended 4th complaint due by 1/28/08.Mailed notice (jlj, ) (Entered: 11/30/2007)
82 MOTION by Defendants Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Department of Homeland Security, Ruth Dorochoff, Federal Bureau of Investigation, United States Citizenship and Immigration Services, Peter D. Keisler, Michael Chertoff, Robert S Mueller, III to dismiss Plaintiffs/Petitioners' Fourth Amended Complaint Under Fed R. Civ. P. 12 (Attachments: # 1 Exhibit A)(Stevens, Elizabeth) (Entered: 01/26/2008)
83 NOTICE of Motion by Elizabeth J. Stevens for presentment of motion to dismiss, 82 before Honorable John F. Grady on 2/20/2008 at 10:30 AM. (Stevens, Elizabeth) (Entered: 01/26/2008)
84 Amended NOTICE of Motion by Elizabeth J. Stevens for presentment of motion to dismiss, 82 before Honorable John F. Grady on 3/5/2008 at 10:30 AM. (Stevens, Elizabeth) (Entered: 02/06/2008)
85 MINUTE entry before Judge John F. Grady :Motion to dismiss 82 is entered and continued until further order of court. Motion hearing held on 3/5/2008 regarding motion to dismiss, 82 . Response to motion to dismiss (82) due by 3/26/2008; reply due by 4/9/2008. Mailed notice (jlj, ) (Entered: 03/07/2008)
86 MOTION by Plaintiffs Ahsan Raza, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Sergey Antonishin, Yan Bashkin, Gafaar Dafalla, Eltayeb Elbolok, Nadeem Fazal, Boris Goldfarb, Inna Karasik, Mohammed Khan, Sobia Khan, Larisa Khaninayeva, Vladimir Khlystov, Abdi Mohamed, Dora Reznik, Abram Rosental, Ilya Serebrennikov, Yelena Serebrennikova, Ismail Suleiman, Tariq Saeed to vacate The Court's September 20, 2007 Order (Berten, David) (Entered: 03/26/2008)
87 MEMORANDUM by Ahsan Raza, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Sergey Antonishin, Yan Bashkin, Gafaar Dafalla, Eltayeb Elbolok, Nadeem Fazal, Boris Goldfarb, Mohammed Khan, Sobia Khan, Larisa Khaninayeva, Vladimir Khlystov, Abdi Mohamed, Ashan Raza, Dora Reznik, Abram Rosental, Ilya Serebrennikov, Yelena Serebrennikova, Ismail Suleiman, Tariq Saeed, Gerry Heinauer in support of motion to vacate, 86 the Court's

Case: 1:06-cv-2518 As of: 02/19/2013 10:12 PM CST 15 of 15

03/26/2008 04/09/2008
04/23/2008 06/13/2008
06/13/2008 06/13/2008

Opinion (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Berten, David) (Entered: 03/26/2008)
88 NOTICE of Motion by David Powers Berten for presentment of motion to vacate, 86 before Honorable John F. Grady on 4/23/2008 at 10:30 AM. (Berten, David) (Entered: 03/26/2008)
89 REPLY by Department of Homeland Security, United States Citizenship and Immigration Services, Federal Bureau of Investigation, Ruth Dorochoff, Peter D. Keisler, Alberto R Gonzales, Michael Chertoff, Gerry Heinauer, Robert S Mueller, III to MOTION by Plaintiffs Ahsan Raza, Siham El−Hamdaoui, Mohamad Zaidan, Zia Rehman, Sergey Antonishin, Yan Bashkin, Gafaar Dafalla, Eltayeb Elbolok, Nadeem Fazal, Boris Goldfarb, Inna Karasik, Mohammed Khan, Sobia Khan, Larisa Khaninayeva, Vladimir Khlystov 86 , memorandum in support of motion,, 87 Defendants' Reply in Support of Motion to Dismiss and Opposition to Plaintiffs' Motion to Dismiss as Moot and to Vacate the Court's September 20, 2007 Opinion (Attachments: # 1 Exhibit Joint Press Release, USCIS and FBI, April 2, 2008)(Glaser, Sheri) (Entered: 04/09/2008)
90 MINUTE entry before Judge Honorable John F. Grady:Status hearing held on 4/23/2008. The court will rule on pending motions by mail.Mailed notice (jlj, ) (Entered: 04/24/2008)
91 MINUTE entry before the Honorable John F. Grady: Enter memorandum opinion and order. Defendants' Renewed Motion to Dismiss Plaintiffs/ Petitioners' Fourth Amended Complaint Under Fed. R. Civ. P. 12 (82) is denied as moot. Plaintiffs' Motion to Dismiss as Moot and to Vacate the Court's September 20, 2007 Opinion (86) is denied in part and granted in part. Plaintiffs' case is dismissed with prejudice as moot, and our September 20, 2007 opinion and order is vacated as to plaintiff Ismail Suleiman, only. Mailed notice (kj, ) (Entered: 06/17/2008)
92 MEMORANDUM Opinion signed by the Honorable John F. Grady on 6/13/2008.(kj, ) (Entered: 06/17/2008)
93 FINAL JUDGMENT ORDER signed by the Honorable John F. Grady on 6/13/2008.(kj, ) (Entered: 06/17/2008)