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Hajro v. United States Citizenship & Immigration Servs.

United States Court of Appeals, Ninth Circuit

October 23, 2015

MIRSAD HAJRO; JAMES R. MAYOCK, Plaintiffs-Appellees,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; T. DIANE CEJKA, Director, USCIS National Records Center; ROSEMARY MELVILLE, USCIS District Director of San Francisco; JEH JOHNSON, Secretary, Department of Homeland Security [*] ; LORETTA E. LYNCH, Attorney General, Defendants-Appellants. MIRSAD HAJRO; JAMES R. MAYOCK, Plaintiffs-Appellees,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; T. DIANE CEJKA, Director, USCIS National Records Center; ROSEMARY MELVILLE, USCIS District Director of San Francisco; JEH JOHNSON, Secretary, Department of Homeland Security; LORETTA E. LYNCH, Attorney General, Defendants-Appellants

Argued and Submitted, San Francisco, California February 3, 2015

As Corrected October 29, 2015.

As Corrected January 21, 2016.

Page 1055

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Appeal from the United States District Court for the Northern District of California. D.C. No. 5:08-cv-01350-PSG. Paul S. Grewal, Magistrate Judge, Presiding.

SUMMARY[***]

Freedom of Information Act

The panel vacated the district court's permanent injunction; reversed the district court's summary judgment order; vacated the attorneys' fees award; and remanded for further proceedings in a Freedom of Information Act action brought against the United States Citizenship and Immigration Services (" USCIS" ) by permanent resident Misrad Hajro and his attorney James Mayock.

The district court found that USCIS engaged in a pattern or practice of violating the Freedom of Information Act's time limits, and entered summary judgment in favor of the plaintiffs. The USCIS challenged the district court's jurisdiction to enforce a 1992 Settlement Agreement entered into by Mayock and USCIS's predecessor agency, the Immigration and Naturalization Service, concerning processing of FOIA requests. The district court entered the summary judgment order, USCIS filed its notice of appeal, and then the district court entered a permanent injunction.

The panel held that this court had jurisdiction to review the summary judgment order, but dismissed USCIS's challenge to the scope of the permanent injunction order for lack of jurisdiction under Fed. R. App. P. 4(a)(2).

Reviewing the summary judgment order, the panel held that the jurisdictional rule announced in Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (holding that if a district court wished to retain jurisdiction to later enforce the terms of a settlement agreement, the order dismissing a case with prejudice must incorporate the terms of the settlement agreement or expressly retain jurisdiction), applied retroactively to the 1992 Settlement Agreement. The panel held that because Kokkonen applied retroactively and the 1992 district court order did not retain jurisdiction over the prior lawsuit's Settlement Agreement, the district court did not have the inherent power to enforce the terms of the Settlement Agreement. The panel also held that while the district court may assert supplemental jurisdiction over the Settlement Agreement claims, plaintiffs failed to show an " unequivocally expressed" waiver of sovereign immunity. The panel therefore reversed summary judgment in favor of plaintiffs as to Claims One and Two.

The panel held that the factual record was not sufficiently developed to determine whether plaintiff Mayock had standing to bring a FOIA pattern or practice claim. The panel also held that plaintiff Hajro lost standing to bring a pattern or practice claim during the pendency of this appeal when he was granted his citizenship, because the probability that USCIS's delays would impair Hajro's lawful access to information in the future was now remote. The panel, therefore, reversed and remanded for further fact finding as to Mayock's standing and dismissed Hajro's claim as moot.

Judge Rawlinson concurred in part and dissented in part. Judge Rawlinson agreed with the majority except as to the issue of Mayock's standing. Judge Rawlinson would reverse the district court's ruling that Mayock had standing to pursue an action in his own right, and remand for dismissal of all claims.

Mark W. Pennak (argued), Appellate Staff Attorney; Leonard Schaitman, Assistant Director; Melinda Haag, United States Attorney; Stuart F. Delery, Assistant Attorney General, Department of Justice, Washington, D.C.; Ila C. Deiss, Assistant United States Attorney, San Francisco, California, for Defendants-Appellants.

Kip Evan Steinberg (argued), San Rafael, California; Robert H. Gibbs and Robert Pauw, Gibbs Houston Pauw, Seattle, Washington, for Plaintiffs-Appellees.

Russell Abrutyn, Marshal E. Hyman & Associates, Troy, Michigan; Aaron C. Hall, Joseph Law Firm, P.C., Aurora, Colorado, for Amicus Curiae American Immigration Lawyers Association.

Before: Richard C. Tallman and Johnnie B. Rawlinson, Circuit Judges, and Stephen Joseph Murphy, District Judge.[**]

OPINION

Page 1059

TALLMAN, Circuit Judge:

United States Citizenship and Immigration Services and federal officer co-defendants (collectively " USCIS" ) challenge the district court's grant of summary judgment, a permanent injunction, and an attorneys' fees award in favor of Plaintiffs Mirsad Hajro and James R. Mayock. The district court found that USCIS engaged in a pattern or practice of violating the Freedom of Information Act's (" FOIA" ) time limits, 5 U.S.C. § 552(a)(6)(A), (B), (C) (2012). The statutory time limits require an agency to determine within twenty days whether to comply with a FOIA request or, in the alternative, notify the requester of any " unusual circumstances" requiring an extension in responding to the request. See 5 U.S.C. § 552(a)(6)(A), (B). If the agency fails to comply with

Page 1060

either, a FOIA requester can proceed directly to district court where the agency must show " exceptional circumstances" justifying its untimeliness and due diligence in remedying the violation. See 5 U.S.C. § 552(a)(6)(C). USCIS also challenges the district court's jurisdiction to enforce a 1992 Settlement Agreement entered into by attorney James Mayock and USCIS's predecessor agency, the Immigration and Naturalization Service (" INS" ).

We have jurisdiction under 28 U.S.C. § 1291 to review the summary judgment order. We dismiss USCIS's challenge to the permanent injunction for lack of jurisdiction given its prematurely filed notice of appeal. We hold that while the district court may assert supplemental jurisdiction over the Settlement Agreement claims, Plaintiffs have failed to show an " unequivocally expressed" waiver of sovereign immunity. We clarify the standing requirements to assert a FOIA pattern or practice claim. As such, we vacate the injunction and remand with instructions to conduct further proceedings on an open record to determine in the first instance whether Mayock has standing to bring a pattern or practice claim under this standard. We also find Hajro's pattern or practice claim moot. Therefore, the summary judgment order is reversed and remanded. We vacate and remand the attorneys' fees award for further consideration in light of this opinion.

I

A

James Mayock has been an immigration attorney for over thirty years. As part of Mayock's ongoing immigration caseload, he files requests under FOIA to obtain the alien registration files for his clients. Mayock's declaration states that USCIS has never produced the requested records within FOIA's statutory twenty-day time limit. See 5 U.S.C. § 552(a)(6)(A). Nor has the government provided written notice setting forth any " unusual circumstances" for an extension of time beyond the statutory limit. See 5 U.S.C. § 552(a)(6)(B). In support of his pattern or practice claim, Mayock provided a recent FOIA response addressed to another attorney at Mayock's law firm. USCIS responded almost eight months after the initial request was placed. Mayock also provided declarations from twenty-six other immigration attorneys who have encountered similar, routine delays. All twenty-six attorneys included copies of their own delayed FOIA requests from recent years. USCIS did not rebut this evidence before the district court. Hajro v. U.S. Citizenship & Immigration Servs. (" Hajro I " ), 832 F.Supp.2d 1095, 1105 (N.D. Cal. 2011).

In addition to the present lawsuit, Mayock previously filed a lawsuit against the INS, USCIS's predecessor agency, about twenty-five years ago. Mayock similarly alleged that INS had a pattern or practice of violating various provisions of FOIA. Mayock, together with other immigration attorneys, submitted declarations to demonstrate that INS often took months to respond to FOIA requests, far in excess of the statutory time limit, then ten days. See 5 U.S.C. § 552(a)(6)(A)(i) (1988). The district court agreed and granted summary judgment in favor of Mayock, directing INS to issue the appropriate notices for extension of time required by FOIA and enjoining the San Francisco District Office of the INS from failing to comply with the statutory timing requirements. Mayock v. Nelson, 714 F.Supp. 1558 (N.D. Cal. 1989), rev'd and remanded, 938 F.2d 1006 (9th Cir. 1991).

Page 1061

On appeal, we reversed and remanded. We held that the district court had overlooked the existence of genuine issues of material fact as to whether increasing workloads at INS offices created " exceptional circumstances" justifying its failure to respond within the statutory time limits, and whether the agency had demonstrated " due diligence" in responding to requests for information urgently needed by aliens who faced pending deportation or exclusion proceedings. See Mayock v. Nelson, 938 F.2d 1006, 1007-08 (9th Cir. 1991).

Upon remand, the parties entered into a settlement agreement (" the Settlement Agreement" ), in which INS agreed to implement expedited processing of a FOIA request where the requester demonstrates that an individual's life or personal safety would be jeopardized; or where the requester's substantial due process rights would be impaired by the failure to process a request immediately. The district court dismissed the case with prejudice but the parties subsequently filed the Settlement Agreement with the court in 1992. The district court's dismissal order did not expressly retain jurisdiction of the Settlement Agreement nor did it incorporate its terms into the order.

B

Mirsad Hajro was a permanent resident of the United States who applied for naturalization in 2003. In October 2007, USCIS notified Hajro that his naturalization application had been denied based on evidence in his alien registration file that allegedly revealed false testimony regarding his foreign military service. As part of his appeal from the denial of his application for citizenship, Hajro filed a FOIA request with the USCIS National Records Center in November 2007 seeking a copy of his alien registration file. Hajro requested expedited processing of his FOIA request under the terms of the 1992 Settlement Agreement.

Since 2007 USCIS has used a three-track system for processing FOIA requests: " Track 1" for simple requests, " Track 2" for complex inquiries that require additional time, and " Track 3" for expedited processing for individuals subject to removal proceedings and scheduled for a hearing before an immigration judge. Special FOIA Processing Track, 72 Fed.Reg. 9017-01 (Feb. 28, 2007). In responding to Hajro's FOIA request, USCIS denied Hajro's expedited request and processed his request under Track 2. USCIS's letter did not include notice of any " unusual circumstances" justifying an extension of the current twenty-day time limit. See 5 U.S.C. § 552(a)(6)(A), (B).

It is undisputed that USCIS failed to issue Hajro's FOIA request within the twenty-day time limit. Hajro I, 832 F.Supp.2d at 1101. As a result of the delay, Hajro appealed the denial of his naturalization application without the evidence relied upon by USCIS in denying it.[1] Id. at 1112.

While this appeal was pending, Hajro successfully challenged USCIS's denial of citizenship and he has since been naturalized as a U.S. citizen. See Hajro v. Barrett, 849 F.Supp.2d 945 (N.D. Cal. 2012).

Page 1062

C

Mayock and Hajro initiated this action in March 2008. They sought declaratory and injunctive relief under FOIA and the Administrative Procedures Act (" APA" ), and enforcement of the 1992 Settlement Agreement. Plaintiffs' First Amended Complaint (" FAC" ), filed June 10, 2008, asserts nine causes of action:

(1) " Track 3" of Defendants' current, multi-track policy violates the Settlement Agreement;
(2) Defendants' denial of Hajro's request for expedited processing also violates the Settlement Agreement;
(3) The timing by which Defendants provided Hajro with the material responsive to his FOIA request violated FOIA Section 552(a)(6)(A) and 6 C.F.R. § 5.6(b);
(4) Defendants' failure to notify Hajro of the " unusual circumstances" that prevented USCIS from processing his FOIA request within the 20-day statutory limit violated 6 C.F.R. § 5.5(c)(1);
(5) Defendants have a pattern or practice of failing to comply with the timing requirements set forth by FOIA Sections 552(a)(6)(A), (B), (C);
(6) Defendants unlawfully withheld the information requested by Hajro in violation of [] [5 U.S.C.] Section 551 et seq. and 555(b), as well as Sections 702, 704, and 706 of the APA;
(7) Such withholding of nonexempt material violated Hajro's due process rights because it interfered with his ability to adequately appeal his naturalization denial and violated his right to a fair hearing . . . ;
(8) Defendants' implementation of the " Track 3" policy violates the Fifth Amendment guarantee of ...

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