Prymas Vaz v. David Neal ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRYMAS NAZRETH VAZ, No. 21-15913
Plaintiff-Appellant,
D.C. No.
v. 2:20-cv-00316-
KJD-NJK
DAVID NEAL, * in his official
capacity, Director of Executive
Office for Immigration Review; JILL OPINION
L. ANDERSON, in her official
capacity as General Counsel for the
Executive Office for Immigration
Review,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted March 16, 2022
Las Vegas, Nevada
Filed May 9, 2022
*
David Neal, the Director of the Executive Office for Immigration
Review is automatically substituted for his predecessor, James
McHenry, pursuant to Fed. R. App. P. 43(c)(2).
2 VAZ V. NEAL
Before: Andrew J. Kleinfeld, D. Michael Fisher, ** and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett
SUMMARY ***
Administrative Procedure Act/Mandamus Act
The panel affirmed the district court’s dismissal of an
action seeking to compel the Executive Office for
Immigration Review, an agency within the Department of
Justice that maintains an Attorney Discipline Program, to
complete its investigation of plaintiff’s complaint against his
former attorney and to report its investigation to plaintiff.
The panel treated the district court’s dismissal as a grant
of summary judgment because the district court relied on
evidence outside the complaint. Because mandamus relief
and relief under the Administrative Procedure Act (“APA”)
are in essence the same, and plaintiff had an adequate
remedy under the APA, the panel followed Ninth Circuit
precedent and chose to analyze the APA claim only.
The panel held that the district court erred in treating the
requirements for obtaining relief under the APA as
jurisdictional and dismissing the complaint on that basis.
The Honorable D. Michael Fisher, United States Circuit Judge for
**
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
VAZ V. NEAL 3
Plaintiff’s APA claim, alleging that the Executive Office for
Immigration Review (“EOIR”) failed to perform its duties
under federal regulations, arose under the laws of the United
States, and the district court had subject matter jurisdiction.
Addressing the merits, the panel held that the EOIR had
a clear, mandatory duty to investigate plaintiff’s complaint
within a reasonable time, but it had no duty to report its
investigation results to plaintiff. Thus, plaintiff would only
be entitled to relief if the EOIR unreasonably delayed in
carrying out its duty to investigate. Applying the six-factor
balancing test announced in Telecommunications Research
& Action Center v. FCC, 750 F.2d 70, 79–80 (D.C. Cir.
1984), the panel held that the EOIR’s delay was not
unreasonable under the APA.
COUNSEL
Scott A. Emerick (argued), Bolour / Carl Immigration Group
APC, Los Angeles, California; Jon E. Garde (argued),
Immigration Law Office of Jon Eric Garde & Associates,
Las Vegas, Nevada; for Plaintiff-Appellant.
Elizabeth O. White (argued), Appellate Chief; Brianna
Smith, Assistant United States Attorney; Christopher Chiou,
Acting United States Attorney; United States Attorney’s
Office, Reno, Nevada; for Defendants-Appellees.
4 VAZ V. NEAL
OPINION
BENNETT, Circuit Judge:
The Executive Office for Immigration Review (EOIR),
an agency within the Department of Justice, maintains an
Attorney Discipline Program. Under the Program, Prymas
Nazreth Vaz filed a complaint against his former attorney.
In this suit, Vaz seeks to compel the EOIR to complete its
investigation of Vaz’s complaint against his former attorney
and to report its investigation results to Vaz. 1 He relies on
the Mandamus Act, 28 U.S.C. § 1361, and the
Administrative Procedure Act (APA), 5 U.S.C. § 706(1).
The district court granted the EOIR’s motion to dismiss,
finding that it lacked jurisdiction under both the Mandamus
Act and the APA. It alternatively found that relief was
inappropriate even if it had jurisdiction. We have
jurisdiction under 28 U.S.C. § 1291 and affirm. The district
court erred in determining that it lacked jurisdiction under
the APA. But we affirm its denial of relief because the
EOIR’s delay was not unreasonable under the APA.
Following Ninth Circuit precedent, we choose to conclude
our analysis there, and do not reach the Mandamus Act. See
R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1065 (9th Cir.
1997).
1
The complaint was filed against James McHenry (the EOIR’s
Director at the time) and Jill Anderson (the EOIR’s General Counsel), in
their official capacities. David Neal, the current EOIR Director, was
automatically substituted as a party. Fed. R. App. P. 43(c)(2). We refer
to defendants collectively as the “EOIR.”
VAZ V. NEAL 5
I
The EOIR’s Attorney Discipline Program regulates the
conduct of attorneys and other representatives who practice
before the Board of Immigration Appeals and immigration
courts. As part of the Program, individuals can submit
complaints, which the EOIR investigates. See 8 C.F.R.
§ 1003.104. Although complaints are normally reviewed in
the order in which they are received, investigation timelines
depend on several factors, including, for example, when the
EOIR receives necessary information. The EOIR may
prioritize complaints, and it usually gives priority to those
involving egregious conduct or practitioners who are the
subject of multiple complaints.
The Program is headed by the EOIR’s Disciplinary
Counsel and is staffed with two attorneys (the Disciplinary
Counsel and one Assistant Disciplinary Counsel), one
investigator, and two individuals who provide administrative
support. In 2018, the EOIR received about 579 complaints;
in 2019, it received about 684 complaints; and by the end of
March 2020, it had received about 417 complaints that
calendar year. In June 2020, the EOIR was still processing
complaints from 2017.
Vaz filed his complaint with the EOIR in May 2018. He
alleged that his prior attorney, Sonjay Sobti, had engaged in
professional misconduct. Vaz hired Sobti after the Ninth
Circuit had upheld the denial of his asylum application.
According to Vaz, from about 2006 to 2016, Vaz paid Sobti
about $10,000 each year to handle his immigration case,
though Sobti failed to update Vaz on the status of his case.
Sobti allegedly also started immigration proceedings on
Vaz’s behalf without consulting Vaz and forged Vaz’s
signature on various documents.
6 VAZ V. NEAL
The EOIR determined that Vaz’s complaint warranted
further review, and it sent Vaz a letter stating that it would
investigate his complaint and inform him of the results. The
EOIR also decided that it would address Vaz’s complaint “in
the order it was received and as resources permit,” and that
it would not give it priority. 2 This decision was partly based
on the fact that Vaz had also filed a complaint with the State
Bar of California, which dismissed it based on “insufficient
evidence.”
About two years after Vaz filed his complaint with the
EOIR, he sued the EOIR because it had failed to provide him
with any updates or inform him of the results of its
investigation. Vaz’s complaint alleges that the EOIR has
duties to investigate his complaint and notify him of the
investigation results. He seeks to enforce those alleged
duties under the Mandamus Act and the APA. Vaz claims
that the results of the EOIR’s investigation “could be
beneficial” to his immigration proceedings, but he has never
claimed that the EOIR’s delay is preventing him from
pursuing relief in his immigration proceedings.
The EOIR moved to dismiss for lack of subject matter
jurisdiction and failure to state a claim under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). The district court
granted the motion, finding that it lacked jurisdiction under
the Mandamus Act and the APA. The district court
alternatively determined that even if it had jurisdiction, relief
was unwarranted because the EOIR’s delay was not
unreasonable, given the EOIR’s limited resources. The
2
At oral argument, counsel for the EOIR stated that the EOIR’s
investigation into Vaz’s complaint is currently ongoing and that the
EOIR cannot provide an estimated completion date. Oral Arg. at 15:36–
17:10, https://youtu.be/wYU_b2vVhTs.
VAZ V. NEAL 7
district court considered evidence outside the complaint—a
declaration from the EOIR’s Disciplinary Counsel. The
district court thus converted the motion to dismiss into a
motion for summary judgment. See Anderson v. Angelone,
86 F.3d 932, 934 (9th Cir. 1996). 3
Vaz timely appeals.
II.
We review a “dismissal for lack of subject matter
jurisdiction de novo.” Alvarado v. Table Mountain
Rancheria, 509 F.3d 1008, 1015 (9th Cir. 2007). We treat
the district court’s alternative determination on the merits as
a grant of summary judgment because the district court
relied on evidence outside the complaint. See Anderson,
86 F.3d at 934. “This court reviews a district court’s grant
of summary judgment de novo. . . . Therefore, when
reviewing a grant of summary judgment, this court sits in the
same position as the district court and applies the same
summary judgment test that governs the district court’s
decision.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 629–30 (9th Cir. 1987). Summary
judgment must be granted if there is no genuine issue as to
any material fact, viewing the evidence in the nonmoving
party’s favor. See id. at 630–31.
III
Because “mandamus relief and relief under the APA are
‘in essence’ the same,” when a complaint seeks relief under
the Mandamus Act and the APA and there is an adequate
3
Vaz has never argued that it was improper for the district court to
consider the declaration.
8 VAZ V. NEAL
remedy under the APA, we may elect to analyze the APA
claim only. R.T. Vanderbilt Co., 113 F.3d at 1065 (quoting
Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.
1997)). Here, we choose to analyze Vaz’s claim under the
APA only, as he has an adequate remedy under the APA.
We therefore do not address the district court’s analysis of
the Mandamus Act claim, including its jurisdictional
analysis.
A
The district court found that it lacked subject matter
jurisdiction over the APA claim because Vaz had failed to
show that he could meet the requirements for obtaining relief
under the APA. But the requirements for obtaining relief
under the APA go to the merits, not to subject matter
jurisdiction. See Plaskett v. Wormuth, 18 F.4th 1072, 1082
(9th Cir. 2021) (“Any deficiencies as to the APA claim go to
the merits of that cause of action rather than to the subject
matter jurisdiction of the court to consider it.”). Thus, the
district court erred in treating the requirements for obtaining
relief under the APA as jurisdictional.
Subject matter jurisdiction over an APA claim rests on
the federal question statute, 28 U.S.C. § 1331. Id. at 1082
n.5. So the question is whether Vaz’s APA claim “aris[es]
under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Vaz alleges that he is entitled to
relief under the APA, a federal statute, because the EOIR
failed to perform its duties under federal regulations within
a reasonable time. Vaz’s APA claim therefore arises under
the laws of the United States, and the district court had
subject matter jurisdiction.
VAZ V. NEAL 9
B
Under the APA, a court may “compel agency action . . .
unreasonably delayed.” 5 U.S.C. § 706(1). But “a claim
under § 706(1) can proceed only where a plaintiff asserts that
an agency failed to take a discrete agency action that it is
required to take.” Norton v. S. Utah Wilderness All.,
542 U.S. 55, 64 (2004). Thus, a court may compel agency
action under the APA when the agency (1) has “a clear,
certain, and mandatory duty,” Plaskett, 18 F.4th at 1082, and
(2) has unreasonably delayed in performing such duty, see
5 U.S.C. § 706(1).
1
Vaz argues that, under 8 C.F.R. § 1003.104(b), the EOIR
has clear, mandatory duties to investigate his complaint and
to report its investigation results to him. We hold that the
EOIR has a mandatory duty to investigate but has no duty to
report its investigation results to complainants.
Section 1003.104(b) provides:
Preliminary inquiry. Upon receipt of a
disciplinary complaint or on its own
initiative, the EOIR disciplinary counsel will
initiate a preliminary inquiry. . . . If the EOIR
disciplinary counsel determines that a
complaint is without merit, no further action
will be taken. The EOIR disciplinary counsel
may, in the disciplinary counsel’s discretion,
close a preliminary inquiry if the complainant
fails to comply with reasonable requests for
assistance, information, or documentation.
10 VAZ V. NEAL
The complainant and the practitioner shall be
notified of any such determination in writing.
8 C.F.R. § 1003.104(b).
The regulation directs that the EOIR “will initiate a
preliminary inquiry.” Id. (emphasis added). “The word
‘will,’ like the word ‘shall,’ is a mandatory term, unless
something about the context in which the word is used
indicates otherwise.” Nat. Res. Def. Council, Inc. v. Perry,
940 F.3d 1072, 1078 (9th Cir. 2019) (citation omitted).
Nothing in § 1003.104 suggests that the word “will” imposes
anything but a mandatory duty. And an “inquiry” is “a
systematic investigation often of a matter of public interest.”
Inquiry, Merriam-Webster, https://www.merriam-
webster.com/dictionary/inquiry (last visited Apr. 12, 2022).
Thus, § 1003.104(b) imposes a clear, mandatory duty on the
EOIR to investigate every complaint.
The EOIR argues that it has no duty to investigate
because the regulations grant it broad discretion over the
scope of investigations and what actions it may take after
completing an investigation. See, e.g., 8 C.F.R.
§ 1003.104(b) (“If the EOIR disciplinary counsel determines
that a complaint is without merit, no further action will be
taken.”); id. § 1003.104(c) (“The EOIR disciplinary counsel,
in its discretion, may issue warning letters and admonitions,
and may enter into agreements in lieu of discipline, prior to
the issuance of a Notice of Intent to Discipline.”). But
discretion over how to investigate is different from
discretion over whether to investigate. And the regulations
neither provide nor suggest that the EOIR has discretion
whether to investigate a complaint.
The EOIR also argues that we should deny relief because
parts of the complaint incorrectly allege that the EOIR has a
VAZ V. NEAL 11
duty to expedite investigations. We agree that the
regulations do not require the EOIR to expedite its
investigations. Indeed, the regulations provide no timeframe
in which an investigation must be completed. Thus, to the
extent that Vaz argues that the EOIR has a duty to expedite
investigations, such argument fails. But Vaz also alleges
that the EOIR has a duty to investigate complaints within a
reasonable time under the APA. We can compel agency
action “unreasonably delayed” under the APA. See 5 U.S.C.
§ 706(1). Thus, even though the EOIR has no duty to
expedite or complete investigations within a certain period,
the EOIR does have a mandatory duty to investigate
complaints under § 1003.104(b), and it must do so within a
reasonable time under the APA.
The EOIR, however, has no mandatory duty to notify
complainants of its investigation results. Vaz argues that
such duty is found in the last sentence of § 1003.104(b):
“The complainant and the practitioner shall be notified of
any such determination in writing.” But when read in
context, “any such determination” refers to the
determination described in the prior sentence: the EOIR’s
discretionary decision to close a preliminary inquiry because
of a complainant’s failure to provide requested information.
See 8 C.F.R. § 1003.104(b) (“The EOIR disciplinary counsel
may, in the disciplinary counsel’s discretion, close a
preliminary inquiry if the complainant fails to comply with
reasonable requests for assistance, information, or
documentation.”). The regulation therefore requires the
EOIR to inform a complainant of its decision to close a
preliminary inquiry because the complainant failed to
provide information, but it does not require the EOIR to
notify a complainant of its investigation results.
12 VAZ V. NEAL
In sum, the EOIR has a clear, mandatory duty to
investigate Vaz’s complaint within a reasonable time, but it
has no duty to report its investigation results to Vaz. Thus,
Vaz is only entitled to relief if the EOIR unreasonably
delayed in carrying out its duty to investigate. 4
2
To determine whether an agency’s delay is unreasonable
under the APA, we use the TRAC factors—the six-factor
balancing test announced in Telecommunications Research
& Action Center v. FCC, 750 F.2d 70, 79–80 (D.C. Cir.
1984) (“TRAC”). See Indep. Mining, 105 F.3d at 507. The
TRAC factors are:
(1) the time agencies take to make decisions
must be governed by a “rule of reason[”;]
(2) where Congress has provided a timetable
or other indication of the speed with which it
expects the agency to proceed in the enabling
statute, that statutory scheme may supply
content for this rule of reason;
4
Because the EOIR has never argued that Vaz lacks prudential
standing under the APA, we have no occasion to address that issue. See
Nat’l Credit Union Admin. v. First Nat. Bank & Tr. Co., 522 U.S. 479,
488 (1998) (“For a plaintiff to have prudential standing under the APA,
‘the interest sought to be protected by the complainant must be arguably
within the zone of interests to be protected or regulated by the statute in
question.’” (cleaned up) (quoting Ass’n of Data Processing Serv.
Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970))); Laub v. U.S.
Dep’t of Interior, 342 F.3d 1080, 1087 n.6 (9th Cir. 2003) (“[B]ecause
the zone of interests test is merely prudential rather than constitutional it
is waivable.”).
VAZ V. NEAL 13
(3) delays that might be reasonable in the
sphere of economic regulation are less
tolerable when human health and welfare are
at stake;
(4) the court should consider the effect of
expediting delayed action on agency
activities of a higher or competing priority;
(5) the court should also take into account the
nature and extent of the interests prejudiced
by delay; and
(6) the court need not “find any impropriety
lurking behind agency lassitude in order to
hold that agency action is ‘unreasonably
delayed.’”
TRAC, 750 F.2d at 80 (citations omitted).
Vaz presents no developed argument that the EOIR’s
delay was unreasonable under the TRAC balancing test.
Indeed, he does not even mention the TRAC factors in his
briefs. “We will not manufacture arguments for an appellant
. . . .” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
Vaz has failed to raise a genuine dispute about whether the
EOIR’s delay was unreasonable. 5
5
Vaz does argue that unreasonable delay is a factual question that
should not be decided under motion to dismiss standards. But his
argument is irrelevant because, as discussed above, we treat the district
court’s dismissal as a grant of summary judgment and apply summary
judgment standards. See United States v. Grayson, 879 F.2d 620, 625
n.8 (9th Cir. 1989).
14 VAZ V. NEAL
But even if Vaz had developed an argument, it would
have failed. The only relevant TRAC factors are one, three,
four, and five. 6
The first factor considers “whether the time for agency
action has been reasonable.” Nat. Res. Def. Council, Inc. v.
EPA, 956 F.3d 1134, 1139 (9th Cir. 2020). It is the “most
important” factor, “though it, like the others, is not itself
determinative.” A Cmty. Voice v. EPA, 878 F.3d 779, 786
(9th Cir. 2017). Assuming the EOIR has still not completed
its investigation of Vaz’s complaint (filed in May 2018), Vaz
has been waiting about four years. “Repeatedly, courts in
this and other circuits have concluded that ‘a reasonable time
for agency action is typically counted in weeks or months,
not years.’” Nat. Res. Def. Council, 956 F.3d at 1139
(quoting A Cmty. Voice, 878 F.3d at 787). We assume
without deciding that the first factor would weigh in Vaz’s
favor.
But the remaining relevant factors weigh against Vaz.
No evidence supports the third and fifth factors—that the
investigation delay is affecting Vaz’s health and welfare or
causing him prejudice. Vaz merely speculates that he “may
be able to seek immigration relief based on the findings of
[the EOIR’s] investigation.” (emphasis added). And he
offers no evidence that the EOIR’s delay is causing him
harm or prejudice. For example, Vaz provides no evidence
that the EOIR’s delay prevented him from seeking
6
The second TRAC factor is inapplicable because the regulations
provide no timetable for the EOIR’s investigations. The sixth TRAC
factor is also irrelevant because there is no evidence that the EOIR has
engaged in any improper conduct.
VAZ V. NEAL 15
immigration relief based on his former attorney’s alleged
misconduct.
The fourth factor—whether compelling the agency to act
would detract from its higher or competing priorities—also
weighs against granting Vaz relief. The EOIR has limited
resources and has hundreds of pending complaints, many of
which were received before Vaz filed his complaint and
presumably some of which the EOIR has determined merit
priority. Requiring the EOIR to investigate Vaz’s complaint
would interfere with the EOIR’s discretion in prioritizing its
activities and allocating its resources. Cf. In re Barr Lab’ys,
Inc., 930 F.2d 72, 75–76 (D.C. Cir. 1991) (reasoning
mandamus relief was inappropriate under the TRAC factors
when delay stemmed from a “resource-allocation issue,” and
would “put[] [petitioner] at the head of the queue simply
mov[ing] all others back one space . . . [,] produc[ing] no net
gain”). 7
In sum, we deny relief because Vaz developed no
argument showing that the EOIR’s delay was unreasonable
7
Nothing in our decision should be construed as holding that an
agency’s limited resources always supports denying relief under the
APA. Rather, our holding is based on the record before us, which gives
us no reason to believe that the Department of Justice’s allocation of
resources to the EOIR caused the EOIR to unreasonably delay in
complying with its duty to investigate Vaz’s complaint. We note that
Vaz made no formal request under Rule 56(d) to continue the hearing on
the EOIR’s motion, to allow for discovery. See Fed. R. Civ. P. 56(d)(2).
Moreover, Vaz’s general and speculative arguments made in his
opposition to the motion failed to satisfy Rule 56(d)’s requirements. See
Sec. & Exch. Comm’n v. Stein, 906 F.3d 823, 833 (9th Cir. 2018)
(explaining that a party must “identify with specificity facts” that are
likely to be discovered to satisfy Rule 56(d), and that evidence which is
“‘the object of mere speculation’ . . . is insufficient to satisfy the rule”
(quoting Ohno v. Yasuma, 723 F.3d 984, 1013 n.29 (9th Cir. 2013))).
16 VAZ V. NEAL
under the TRAC factors. But even if he had, we would still
deny relief because, on the record before us, the EOIR’s
delay was not unreasonable under the TRAC factors.
IV
The district court erred in concluding that it lacked
jurisdiction over the APA claim. But reviewing the district
court’s dismissal based on the merits as a grant of summary
judgment, we affirm. The EOIR has a clear, mandatory duty
to investigate Vaz’s complaint, but Vaz is not entitled to
relief under the APA because the EOIR’s delay in
investigating his complaint was not unreasonable on the
record before us.
AFFIRMED.