UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

____________________________________ 

 ) 

AMRIT PAL SINGH, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 09-499 (RBW) 

 ) 

JANET NAPOLITANO, ) 

Secretary of Homeland Security, ) 

et al., ) 

 ) 

 Defendants. ) 

____________________________________) 

 

MEMORANDUM OPINION 

 Amrit Pal Singh, the plaintiff in this civil lawsuit, seeks, inter alia, “an order requiring 

[defendants Janet Napolitano, Sarah Taylor, and Eric Holder] to promptly adjudicate his 

[a]pplication for [a]djustment of [s]tatus to permanent residency and to issue a declaratory 

judgment declaring that [the United States Customs and Immigration Service]’s [alleged] failure 

to respond for almost nine years to a request for an approval of adjustment of status is an abuse 

of discretion.”1

 Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief for 

Delaying the Decision on the Application for Adjustment of Status (the “Pl.’s Pet.”) at 7. On 

July 24, 2009, the defendants filed a motion to dismiss the plaintiff’s Petition for lack of subjectmatter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or for summary 

judgment pursuant to Federal Rule of Civil Procedure 56. Memorandum of Points and 

Authorities in Support of Defendants’ Motion to Dismiss[] or[,] in the [Alternative], for 

 

1

 The plaintiff is suing each of the defendants in their official capacities—Ms. Napolitano as Secretary of Homeland 

Security, Ms. Taylor as District Director for the United States Citizenship and Immigration Services, and Mr. Holder 

as Attorney General. 
2

Summary Judgment (the “Defs.’ Mem.”) at 1. The Court held a hearing on the merits of the 

defendants’ motion on March 22, 2010, and after carefully considering the parties’ arguments at 

the hearing, the defendants’ motion to dismiss or for summary judgment, and all relevant 

submissions and attachments thereto,2

 the Court concludes, as it did at the hearing, that it lacks 

subject-matter jurisdiction to entertain this case. 

I. Background3

The plaintiff is a citizen of India who currently resides in the United States pursuant to a 

grant of asylum issued on May 12, 1999. Defs.’ Stmt. of Facts ¶1. Based on his asylum status, 

the plaintiff “filed an adjustment of status application (Form I-485) on August 14, 2000.” Pl.’s 

Pet. ¶ 6. Presumably as part of adjudicating the plaintiff’s adjustment of status application, the 

defendants reviewed the plaintiff’s asylum application, in which they discovered that the plaintiff 

was a member of and provided material support to the Babbar Khalsa International, and provided 

material support to the Sikh Student Federation, Bittu Faction, Defs.’ Stmt. of Facts ¶ 2, both 

considered to be Tier II and Tier III terrorist organizations, respectively, Defs’ Mot. at 4-5. 

Pursuant to a March 26, 2008 memorandum issued by the United States Citizenship and 

Immigration Services’ (“USCIS”) deputy director (the “Policy Memorandum”), its current policy 

 

2

 In addition to the plaintiff’s Petition and the defendants’ motion to dismiss and their memorandum of points and 

authorities in support thereof, the Court considered the following documents in rendering its decision: (1) the 

Plaintiff’s Opposition to Defendant[]s[’] Motion to Dismiss, or[,] in the Alternative, for Summary Judgment (the 

“Pl.’s Opp’n”); (2) Defendants’ Statement of Undisputed Material Facts (the “Defs.’ Stmt. of Facts”); and (3) the 

Defendants’ Reply in Further Support of Their Motion to Dismiss, or[,] in the Alternative, for Summary Judgment. 

3

 The plaintiff has failed to file a statement of material facts in compliance with Local Rule 7(h), and thus the Court 

will treat the defendants’ asserted facts as undisputed. Local Civ. R. 7(h) (stating that “[i]n determining a motion for 

summary judgment, the court may assume that facts identified by the moving party in its statement of material facts 

are admitted, unless such fact is controverted in the statement of genuine issues filed in opposition to the motion”); 

Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996) (affirming 

decision in defendant’s favor after plaintiff’s statement failed to rebut the defendant’s statement); Wiesner v. FBI,

577 F. Supp. 2d 450, 452 (D.D.C. 2008) (Walton, J.) (“The Court therefore treats the [defendant’s] asserted facts as 

undisputed for purposes of its motion to dismiss or for summary judgment.”). 
3

regarding applications for adjustment of status for asylees who have provided material support to 

terrorist organizations is to withhold adjudication of cases that could potentially benefit from the 

Secretary’s authority, after consultation with the Attorney General, to determine in her “sole 

unreviewable discretion” whether to grant a waiver of inadmissibility to a particular person, 8 

U.S.C. § 1182(d)(3)(B)(i) (2006), who affords support to a Tier II and Tier III terrorist 

organization, 8 U.S.C. § 1182(a)(3)(B) (2006). Defs.’ Stmt. of Facts ¶¶ 4-5. Thus, the 

defendants have not adjudicated the plaintiff’s adjustment of status application due to this policy. 

Id. ¶ 5. 

The plaintiff filed this action on March 16, 2009, arguing that “the [d]efendants have 

unlawfully withheld and unreasonably delayed action on [the p]laintiff’s application,” pursuant 

to 5 U.S.C. § 706 (2006). Pl.’s Pet. ¶ 24. The plaintiff seeks declaratory relief and a writ of 

mandamus. Pl.’s Pet. at 7. The defendants, for their part, argue that the plaintiff’s petition 

should be dismissed on subject-matter jurisdiction grounds. Specifically, the defendants argue 

that as to Attorney General Holder, the case should be dismissed because the “[p]laintiff’s 

[a]pplication is not being delayed due to any background checks or any activities of the FBI or 

DOJ, and thus, [the plaintiff] lacks standing to sue the FBI or DOJ because he is not suffering 

any injury by virtue of their activities.” Defs.’ Mot. at 7. As to the remaining defendants, they 

argue that the USCIS’s decision to hold the plaintiff’s adjustment of status application in 

abeyance is a discretionary decision that falls outside of this Court’s jurisdiction under the 

Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2)(B). 

II. Standard of Review 

In deciding a motion to dismiss based upon lack of subject-matter jurisdiction under 

Federal Rule of Civil Procedure 12(b)(1), a Court is not limited to the allegations set forth in the 
4

complaint, but “may consider materials outside of the pleadings in deciding whether to grant a 

motion to dismiss for lack of jurisdiction[.]” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 

1249, 1253 (D.C.Cir. 2005). Under Rule 12(b)(1), “[i]t is to be presumed that a cause lies 

outside [the federal courts'] limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am., 

511 U.S. 375, 377 (1994), unless the plaintiff establishes by a preponderance of the evidence that 

the Court possesses jurisdiction, see e.g. Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C. 

2006) (Collyer, J.). 

Furthermore, because the defendants are alleging that Section 1252(a)(2)(B)(ii) strips this 

Court of jurisdiction, they must “overcome the strong presumption in favor of judicial review of 

administrative action.” INS v. St. Cyr, 533 U.S. 289, 298 (2001). Thus, only upon a “showing 

of clear and convincing evidence of a contrary legislative intent [should] the courts restrict 

access to judicial review.” Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 

U.S. 32, 44 (1991) (citation and internal quotation marks omitted). But, the Court also must be 

mindful of “the general rule that courts should refrain from interfering with matters of 

immigration and national security.” Orlov v. Howard, 523 F. Supp. 2d 30, 36 (D.D.C. 2007) 

(Bates, J.); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[J]udicial deference to 

the Executive Branch is especially appropriate in the immigration context where officials 

exercise especially sensitive political functions that implicate questions of foreign relations” 

(internal quotation marks omitted)). 

III. Legal Analysis 

As an initial matter, it does not appear from the face of the plaintiff’s Petition that he has 

set forth sufficient allegations to establish Article III standing to bring suit against the Attorney 

General or the Department of Justice. “To demonstrate standing under Article III of the 
5

Constitution, [the plaintiff] must show an injury in fact caused by the defendant and redressable 

by judicial relief.” Stilwell v. Office of Thrift Supervision, 569 F.3d 514, 518 (D.C. Cir. 2009) 

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). A qualifying injury must 

be “concrete and particularized” and either “actual or imminent.” City of Dania Beach, Fla. v. 

FAA, 485 F.3d 1181, 1185 (D.C. Cir. 2007) (citing Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 

663 (D.C. Cir. 1996)). Here, the plaintiff alleges that the FBI had the responsibility for 

completing a background name check on the plaintiff, that “[t]he background check unduly 

delayed the processing of [the p]laintiff’s adjustment application,” and that “thousands of 

applicants are facing name check[] delays by the FBI and other agencies for no reason 

whatsoever.” Pl.’s Pet. ¶ 20. However, the plaintiff does not allege any harm flowing from this 

delay; indeed, his position is that regardless of the delay, he is entitled to have his adjustment of 

status application granted under current USCIS policy. See id. ¶¶ 19-20 (claiming that the 

USCIS’s policy is to grant adjustment of status applications “even when the FBI name check 

request has been pending for more than 180 days”). So, even assuming that there has been a 

delay in completing the FBI name check, the plaintiff has not alleged an injury-in-fact necessary 

for Article III standing to raise a claim against the Attorney General.4

 The Court will, therefore, 

dismiss the plaintiff’s claims against the Attorney General. 

As to the remaining defendants, the overarching issue before the Court is whether 

subject-matter jurisdiction exists to adjudicate the plaintiff’s Petition to compel the USCIS to 

 

4

 Even assuming that the plaintiff has standing to bring an action against the Attorney General, summary judgment 

nonetheless would have to be issued for the Attorney General. The defendants assert in their Statement of 

Undisputed Facts that “[t]he FBI provided the results of a name check regarding [the p]laintiff’s [a]pplication to 

USCIS on September 10, 2003.” Defs.’ Stmt. of Facts ¶ 5. As noted above in footnote 1, the plaintiff has not 

disputed this assertion. Thus, the Court may treat the defendants’ assertion as true and conclude that the plaintiff’s 

claim against the Attorney General is moot because the name check has now been completed. Therefore, the 

Attorney General would be entitled to summary judgment notwithstanding the justiciability defect of the plaintiff’s 

Petition. 
6

rule on his Form I-485 application. The jurisdiction-stripping statute at issue in this case, 8 

U.S.C. § 1252(a)(2)(B)(ii), states the following: 

Notwithstanding any other provision of law (statutory or nonstatutory) . . . no 

court shall have jurisdiction to review . . . any other decision or action of the 

Attorney General or the Secretary of Homeland Security the authority for which is 

specified under this subchapter to be in the discretion of the Attorney General or 

the Secretary of Homeland Security . . . . 

Considered in the context of its individual components, the defendants can establish the 

applicability of Section 1252(a)(2)(B)(ii) by demonstrating that (1) the holding of the plaintiff’s 

application in abeyance is within the discretion of the Secretary of Homeland Security; (2) the 

discretion exercised by the Secretary is one that is “specified under this subchapter”; and (3) the 

specified discretion is an “action” as that term is used in the statute. Two members of this Court 

have reached different conclusions as to whether a decision to hold an application in abeyance 

meets all three elements. Compare Orlov, 523 F. Supp. 2d at 37 (holding that the pace of 

processing an adjustment of status application is a discretionary decision which the INA removes 

from this Court’s jurisdiction) with Liu v. Novak, 509 F. Supp. 2d 1, 6-7 (D.D.C. 2007) 

(Sullivan, J.) (finding that § 1252(a)(2)(B)(ii) did not bar plaintiff’s claim because agency 

inaction does not satisfy the action requirement and pace of processing does not fall under the 

Attorney General’s discretion, and, furthermore, that the Secretary’s discretion is not one that is 

“specified under this subchapter”).5

 Upon evaluating the Orlov and Liu decisions, this member 

of the Court believes that Judge Bates’s approach in Orlov is the correct approach and concludes 

that the government’s decision to hold the plaintiff’s application in abeyance falls within the 

purview of discretionary decisions or actions that fall outside this Court’s jurisdiction. 

 

5

 The District of Columbia Circuit has not issued a decision addressing this issue. Orlov, 523 F. Supp. 2d at 34. 
7

In assessing the first component of Section 1252(a)(2)(B)(ii), the Court’s analysis starts 

with 8 U.S.C. § 1182(d)(3)(B)(i), which states that with few exceptions, “the Secretary of 

Homeland Security, after consultation with the Secretary of State and the Attorney General, may 

determine in such Secretary’s sole unreviewable discretion that subsection (a)(3)(B) of this 

section shall not apply with respect to an alien within the scope of that subsection” (emphasis 

added). The Secretary also has discretion to promulgate regulations that she feels are necessary 

to exercise her authority to grant permanent resident status to an asylee. See 8 U.S.C. § 1159(b) 

(providing that the Secretary of Homeland Security, “in the Secretary’s . . . discretion and under 

such regulations as the Secretary . . . may prescribe, may adjust to the status of an alien lawfully 

admitted for permanent residence the status of any alien granted asylum”). As Judge Bates 

observed in regards to an analogous statute, “[t]he plain meaning of this statute . . . is to grant 

[the Secretary] the power and the discretion to promulgate regulations governing how (and 

when) adjustment decisions are made, but not to prescribe any time limitation whatsoever.” 

Orlov, 523 F. Supp. 2d at 34 (analyzing 8 U.S.C. § 1255(a), which provides that “[t]he status of 

an alien . . . may be adjusted by the Attorney General, in his discretion and under such 

regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence” 

status under certain circumstances) (emphasis added). And even putting aside the congressional 

grant of discretion provided by Section 1159(b) to determine how and when adjustment 

decisions are made, it is well-settled that, as a general matter, the Secretary also has the 

discretion to “fashion [her] own rules of procedure and to pursue methods of inquiry capable of 

permitting [her] to discharge [her] multitudinous duties.”6

 Vermont Yankee Nuclear Power 

 

6

 The plaintiff asserted during the March 22, 2010 hearing that the USCIS must first rule on his adjustment of status 

application before the Secretary can assess whether a waiver of inadmissibility is appropriate, and that because the 

agency’s review of the plaintiff’s application involves “nondiscretionary, or purely legal, decisions regarding an 

(continued . . .) 
8

Corp. v. Natural Resources Defense Council, 435 U.S. 519, 543 (1978); cf. Federal Power 

Commission v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 333 (1976) (reversing 

circuit court’s order requiring an investigation to be conducted within 30 days, on the grounds 

that “[a]t least in the absence of substantial justification for doing otherwise, a reviewing court 

may not . . . proceed by dictating to the agency the methods, procedures, and time dimension of 

the needed inquiry”). And pursuant to this clearly-established statutory and case authority, the 

Secretary presumably opted to rely on her general discretion to fashion procedural rules under 

Vermont Yankee in issuing the Policy Memorandum to assist the agency in “considering several 

groups and categories of cases as possible candidates for additional terrorist-related 

inadmissibility provision exemptions.” Defs.’ Mem., Ex. 2 (March 26, 2008 Policy 

Memorandum), at 2. Thus, under the statutory scheme and the relevant case law, the Court has 

no doubt that the Secretary has the discretion to hold the plaintiff’s application in abeyance. 

The next step in the Court’s analysis is to determine whether the Secretary’s discretion is 

“specified” under the same title, chapter, and subchapter of the United States Code as Section 

1252(a)(2)(B)(ii). As Judge Sullivan noted in Liu, “Section 1252(a)(2)(B)(ii) does not apply to 

all discretionary decisions,” but only to the “narrow[] category of decisions where Congress has 

taken the additional step to specify that the sole authority for the action is in the [Secretary’s] 

discretion.” Liu, 509 F. Supp. 2d at 7 (citations omitted). Here, Section 1252(a)(2)(B)(ii) is 

 

(. . . continued) 

alien’s eligibility for . . . relief,” Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005), Section 

1252(a)(2)(B)(ii) does not bar this Court from ordering the agency to reach a decision in regards to the plaintiff’s 

application. See also Pl.’s Opp’n at 3 (citing numerous circuit court cases for the proposition that Section 

1252(a)(2)(B)(ii) does not strip federal courts of jurisdiction to review nondiscretionary decisions regarding an 

alien’s eligibility). This argument is without merit. The Court has found no authority, and the plaintiff cites none, 

that supports the proposition that the agency is procedurally compelled to issue a ruling on the adjustment of status 

application before determining whether a waiver is appropriate. If anything, the regulation applicable to asylees 

seeking adjustments to permanent resident status suggests that the USCIS may contemporaneously consider both the 

applicant’s eligibility for adjustment of status and the propriety of a waiver in determining whether to grant the 

adjustment of status application. Cf. 8 C.F.R. § 209.2 (“An application for [a] waiver may be filed . . . with the 

application for adjustment.”). 
9

located under Title 8, Chapter 12, Subchapter II of the United States Code. Within Subchapter II 

are Sections 1151 to 1381 of Title 8. As noted above, the provision that confers discretion on the 

Secretary of Homeland Security to determine whether (and how) to issue a waiver of 

inadmissibility is found in Section 1159(b), which, of course, falls under Subchapter II.7 Orlov, 

523 F. Supp. 2d at 34 (emphasis added). Thus, the Court is satisfied that the second element of 

the analysis—that the discretion be “specified under [the same] subchapter” as Section 

1252(a)(2)(B)(ii)—is also satisfied.8

The last step in the analysis is whether the exercise of this specified discretion constitutes 

an “action” under Section 1252(a)(2)(B)(ii). While this member of this Court agrees with Judge 

Sullivan that “the established body of administrative law . . . distinguishes between” action and 

inaction, Liu, 509 F. Supp. 2d at 7, whether the Secretary’s decision to hold the plaintiff’s 

adjustment of status application in abeyance constitutes “inaction” that is reviewable by the 

Court is a closer question. At first blush, the plaintiff’s argument that the Secretary’s decision to 

hold his application in abeyance is “inaction” certainly has some appeal, as the plaintiff’s 

application is currently in a state of limbo and has been in this status for several years. 

Furthermore, there is a real possibility that without judicial (or other) intervention, the plaintiff’s 

application could remain pending indefinitely. On the other hand, Judge Bates’s observation in 

 

7

 The fact that the Secretary did not rely on Section 1159(b) in issuing its Policy Memorandum does not impact the 

analysis of whether the Secretary’s determination to hold the plaintiff’s application in abeyance is reviewable. The 

only germane inquiry here is whether Congress specifically provided discretion under Subchapter II to allow the 

Secretary to determine when adjustment applications are to be adjudicated by the agency, and not whether the 

Secretary actually exercised that authority. In other words, the Secretary’s decision to rely on another source of 

authority for promulgating procedural rules does not change the fact that Congress has provided similar discretion 

under Section 1159(b). 

8

 In Liu, Judge Sullivan concluded that “[t]he subchapter . . . does not address, much less specify any discretion 

associated with, the pace of application processing.” Liu, 509 F. Supp. 2d at 7. However, Judge Sullivan makes no 

mention of Congress’s grant of authority under 8 U.S.C. § 1159(b) and 8 U.S.C. 1255(a) to the Secretary of 

Homeland Security and the Attorney General, respectively, to promulgate regulations in furtherance of their 

discretion to adjust the status of alien applicants seeking permanent resident status. 
10

Orlov that the word “action” as used in Section 1252(a)(2)(B)(ii) connotes “a series of acts” also 

has persuasive force. Orlov, 523 F. Supp. 2d at 35. For instance, one could argue here that the 

Secretary’s decision to hold the plaintiff’s application in abeyance is a result of a series of 

affirmative acts: the Secretary’s decision to promulgate regulations setting forth the procedures 

for removing an adjustment of status application from the general pool to a special pool for 

consideration by the Secretary, the Secretary’s removal (via the District Director) of the 

plaintiff’s application from the general pool to the select pool, and the act of conducting an 

investigation into whether a waiver of admissibility would be appropriate in the plaintiff’s case. 

Thus, it is difficult to peg this case squarely within either the “action” or “inaction” categories, 

which is hardly surprising, given that the difficulty in distinguishing between what constitutes 

“action” and “inaction” has been long acknowledged by courts and academic commentators 

alike. See, e.g., DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 212 

(1989) (Blackmun, J., dissenting) (asserting that “a sharp and rigid line between action and 

inaction” amounts to “formalistic reasoning [that] has no place in the interpretation of the broad 

and stirring [c]lauses of the Fourteenth Amendment”); Bowers v. DeVito, 686 F.2d 616, 618 (7th 

Cir. 1982) (refusing to “pretend that the line between action and inaction . . . is clearer than it 

is”); Matthew D. Adler and Seth F. Kreimer, The New Etiquette of Federalism: New York, 

Printz, and Yeskey, 1998 S. Ct. Rev. 71, 92 (1998) (“What[] precisely[] makes some person’s (or 

some official’s) behavior an ‘action,’ as opposed to a mere failure to act, has been and remains a 

topic of considerable controversy in the philosophical literature.”); Thomas A. Eaton and 

Michael Lewis Wells, Governmental Inaction as a Constitutional Tort: DeShaney and its 

Aftermath, 66 Wa. L. Rev. 107, 109 n.9 (1991) (noting that “the distinction between acts and 

omissions often turns on how one poses the question”). 
11

Although the difficulty in defining the term “action” under Section 1252(a)(2)(B)(ii) 

would seem to imply that judicial review of the plaintiff’s claim is required, see MCorp, 502 

U.S. at 44, a closer examination reveals that as a practical matter, the Court has no choice but to 

conclude that the Secretary’s decision to hold the plaintiff’s application in abeyance constitutes 

“action,” rather than “inaction.” This is because a review of the Secretary’s decision to hold the 

plaintiff’s application in abeyance necessarily entails an indirect review of the Secretary’s 

discretionary authority. For example, the Court would have to assess whether the Secretary’s 

delay in processing the plaintiff’s application is unreasonable. See Telecommunications 

Research & Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (recognizing six factors 

relevant to the determination whether agency delay is unreasonable). And, the Court’s 

assessment of reasonableness would surely require a review of what Congress designed to be a 

“careful, time-consuming process given the research needed by law enforcement and intelligence 

agencies and the various levels of scrutiny needed within the three Cabinet departments and 

between the three Cabinet heads” to determine whether the nature of the agency’s investigation 

justifies the delay in processing the plaintiff’s application. Defs.’ Mem. at 15. But these 

decisions as to whether and how to conduct an investigation into the plaintiff’s background, as 

discussed above, are undoubtedly within the discretionary authority of the Secretary that cannot 

be reviewed by this Court; thus a review of the Secretary’s decision to hold the plaintiff’s 

application in abeyance is not merely a review of “inaction,” but rather a review of a series of 

discretionary acts that is plainly barred by Section 1252(a)(2)(B)(ii). The Court, therefore, finds 

that the third element under Section 1252(a)(2)(B)(ii) is also satisfied. 
12

IV. Conclusion 

Based on the foregoing analysis, the defendants’ motion to dismiss for lack of subjectmatter jurisdiction must be granted by the Court. With regards to the Attorney General, the 

plaintiff failed to allege any injury-in-fact that would give rise to standing under Article III. As 

for the remaining defendants, there is little doubt that the Court is precluded under Section 

1252(a)(2)(B)(ii) from reviewing the Secretary’s decision to hold the plaintiff’s application in 

abeyance. Therefore, despite the “general presumption in favor of judicial review of 

administrative acts,” Liu, 509 F. Supp. 2d at 7, the Court concludes that it must dismiss the 

plaintiff’s Petition. 

SO ORDERED this 11th day of May, 2010.9

 

 REGGIE B. WALTON 

 United States District Judge 

 

9

 An order was issued on March 23, 2010 granting the defendants’ motion to dismiss and denying as moot its motion 

for summary judgment. An amended and final order will accompany the issuance of this memorandum opinion (1) 

vacating the March 23, 2010 Order, (2) granting the defendants’ motion to dismiss, (3) denying as moot the 

defendants’ motion for summary judgment, and (4) closing this case.