Mirsad Hajro v. Uscis

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIRSAD HAJRO; JAMES R. MAYOCK, No. 11-17948
Plaintiffs-Appellees,
D.C. No.
v. 5:08-cv-01350-
PSG
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, No. 12-17765
Plaintiffs-Appellees,
v. D.C. No.
5:08-cv-01350-
UNITED STATES CITIZENSHIP AND PSG
IMMIGRATION SERVICES; T. DIANE
CEJKA, Director, USCIS National
Records Center; ROSEMARY ORDER AND
MELVILLE, USCIS District Director AMENDED
of San Francisco; JEH JOHNSON, OPINION
2 HAJRO V. USCIS
Secretary, Department of Homeland
Security; LORETTA E. LYNCH,
Attorney General,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding
Argued and Submitted
February 3, 2015–San Francisco, California
Filed October 23, 2015
Amended January 19, 2016
Before: Richard C. Tallman and Johnnie B. Rawlinson,
Circuit Judges, and Stephen Joseph Murphy, District
Judge.**
Order;
Opinion by Judge Tallman;
Partial Concurrence and Partial Dissent by Judge
Rawlinson
*
Jeh Johnson is substituted for Michael Chertoff as Secretary,
Department of Homeland Security and Loretta E. Lynch is substituted for
Eric H. Holder, Jr., as Attorney General. Fed. R. App. P. 43(c)(2).
**
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
HAJRO V. USCIS 3
SUMMARY***
Freedom of Information Act
The panel filed an amended opinion vacating the district
court’s permanent injunction, reversing the district court’s
summary judgment order, vacating the attorneys’ fees award,
and remanding 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; denied the petition for panel rehearing; and denied
on behalf of the court the petition for rehearing en banc.
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).
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 HAJRO V. USCIS
Reviewing the summary judgment order, the panel held
that the jurisdictional rule announced in Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375 (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
held that Mayock’s single FOIA response addressed to
another lawyer at his firm was insufficient to prove personal
harm. 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.
HAJRO V. USCIS 5
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.
COUNSEL
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.
6 HAJRO V. USCIS
ORDER
The panel has voted to amend its previous opinion and
issues the following opinion to replace it. With this
amendment, Judges Tallman and Murphy have voted to deny
the Appellants’ petition for panel rehearing; Judge Rawlinson
has voted to grant the Appellants’ petition for panel
rehearing. The Appellants’ petition for panel rehearing is
DENIED.
The panel has voted to deny the Appellees’ petition for
panel rehearing; Judges Tallman and Rawlinson have voted
to deny the petition for rehearing en banc and Judge Murphy
so recommends. Appellees’ petition for rehearing and
petition for rehearing en banc are DENIED.
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
No further petitions for rehearing or petitions for
rehearing en banc will be entertained.
OPINION
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
HAJRO V. USCIS 7
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 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.
8 HAJRO V. USCIS
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)(i) (1988). The district court agreed and granted
HAJRO V. USCIS 9
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).
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.
10 HAJRO V. USCIS
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
HAJRO V. USCIS 11
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).
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;
1
On March 4, 2008, the National Records Center identified 442 pages
responsive to Hajro’s request, and forwarded 356 pages in their entirety
and 8 pages in part. USCIS withheld 78 pages. After Hajro’s FOIA
administrative appeal, on July 31, 2008, USCIS released an additional 12
pages and 1 page in part. The district court determined that “none of the
documents released [] by USCIS contain[ed] even a factual reference to
his purportedly inconsistent or misleading statements.” Hajro I, 832 F.
Supp. 2d at 1112.
12 HAJRO V. USCIS
(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 Equal Protection; and
HAJRO V. USCIS 13
(9) Adoption of the “Track 3” policy without
notice and comment rulemaking procedure
violated Section 553 of the APA.
Hajro I, 832 F. Supp. 2d at 1102–03.
USCIS moved for summary judgment on the FAC in its
entirety. Plaintiffs opposed Defendants’ motion and
themselves moved for summary judgment.
On October 13, 2011, the district court filed its summary
judgment order. Id. at 1095. The district court ruled in
Plaintiffs’ favor as to all but Claim Eight.2
On December 12, 2011, USCIS filed a notice of appeal
(No. 11-17948) citing the summary judgment order. After
receiving input from both parties in drafting the form of an
injunction, the district court issued its final judgment order
and entered a permanent injunction on May 7, 2012. USCIS
did not amend its notice of appeal to include the permanent
injunction.
On October 15, 2012, the district court granted in part
Plaintiffs’ motion for attorneys’ fees and costs. Hajro v.
USCIS (“Hajro II”), 900 F. Supp. 2d 1034 (N.D. Cal. 2012).
Defendants filed a timely notice of appeal (No. 12-17765)
challenging that decision on December 14, 2012.
2
It granted summary judgment in favor of former Attorney General Eric
Holder with respect to all nine causes of action; and in favor of former
Homeland Security Secretary Janet Napolitano, T. Diane Cejka, and
Rosemary Melville as to the third, fourth, fifth, and sixth causes of action.
14 HAJRO V. USCIS
Our Appellate Commissioner, in an order dated January
4, 2014, asked both parties to address whether we have
jurisdiction over the summary judgment and permanent
injunction appeal (No. 11-17948) in light of the fact that
USCIS filed its notice of appeal after the summary judgment
order but before entry of the actual permanent injunction.
USCIS now challenges only Claims One and Two related
to the 1992 Settlement Agreement, Claim Five—the pattern
or practice claim—and the scope of the permanent injunction.
II
We hold that we have jurisdiction to review the summary
judgment order, but dismiss USCIS’s challenge to the
permanent injunction for lack of jurisdiction under Federal
Rule of Appellate Procedure (“FRAP”) 4(a)(2).
The requirement to file a notice of appeal is “mandatory
and jurisdictional.” Browder v. Dir., Dep’t of Corr. of Ill.,
434 U.S. 257, 264 (1978). The government must file a notice
of appeal within sixty days of the date of a final judgment or
an appealable order. FRAP 4(a)(1)(B). However, a party
may prematurely appeal under FRAP 4(a)(2):
A notice of appeal filed after the court
announces a decision or order—but before the
entry of the judgment or order—is treated as
filed on the date of and after the entry.
The issue here is whether USCIS’s December 12, 2011,
notice of appeal can be treated as filed on May 7, 2012—the
date the district court filed its final judgment and permanent
HAJRO V. USCIS 15
injunction—such that USCIS can challenge both the
summary judgment order and the permanent injunction.
Two cases govern this jurisdictional issue. First, the U.S.
Supreme Court in FirsTier Mortgage Insurance Co. v.
Investors Mortgage Ins. Co., held that FRAP 4(a)(2) “permits
a notice of appeal from a nonfinal decision to operate as a
notice of appeal from the final judgment only when a district
court announces a decision that would be appealable if
immediately followed by the entry of judgment.” 498 U.S.
269, 276 (1991) (emphasis in original). There, the appellant
filed a notice of appeal after the district court orally ruled
from the bench that it was granting respondent’s summary
judgment motion while simultaneously asking the parties for
suggested findings of fact and conclusions of law for its
formal order. Id. at 270–71. The Supreme Court concluded
that FRAP 4(a)(2) rescued the premature notice of appeal,
stating that “Rule 4(a)(2) was intended to protect the
unskilled litigant who files a notice of appeal from a decision
that he reasonably but mistakenly believes to be a final
judgment . . . .” Id. at 276.
While other circuits have generously interpreted FRAP
4(a)(2) and FirsTier, the Ninth Circuit has narrowly
construed both. Compare Capitol Sprinkler Inspection, Inc.
v. Guest Servs., Inc., 630 F.3d 217, 223 (D.C. Cir. 2011)
(emphasizing objective “immediately appealable” standard
regardless of counsel’s subjective reasonableness in filing the
notice of appeal), with Kendall v. Homestead Dev. Co. (In re
Jack Raley Constr., Inc.), 17 F.3d 291, 294 (9th Cir. 1994)
(concluding appellants had no reasonable belief that notice of
appeal was effective especially where they requested
permission to brief and argue remaining issue); Kennedy v.
Applause, Inc., 90 F.3d 1477, 1482–83 (9th Cir. 1996). See
16 HAJRO V. USCIS
also Brown v. Columbia Sussex Corp., 664 F.3d 182, 188–89
(7th Cir. 2011) (reading FirsTier “to hold that Rule 4(a)(2)
will save a premature notice if, regarding the claim being
appealed, the entry of judgment is all that is left for the court
to do” (emphasis in original)). As USCIS notes, there are
many similarities between FirsTier and this case that may
have warranted a different outcome had we decided this case
solely on FRAP 4(a)(2) and FirsTier. However, our case law
post-FirsTier is clear: “a premature notice of appeal is valid
under FRAP 4(a)(2) when ‘[a]ll that remained was the clerk’s
ministerial task of entering a Rule 58 judgment.’” Kennedy,
90 F.3d at 1483 (quoting In re Jack Raley Constr., Inc.,
17 F.3d at 294).
In Kennedy, we addressed the merits of the summary
judgment order but dismissed the appellant’s challenge to the
district court’s award of attorneys’ fees for want of
jurisdiction. 90 F.3d at 1479. After the district court granted
defendant Applause’s summary judgment motion, Kennedy
filed a notice of appeal. Id. at 1480. Subsequently, Applause
moved for attorneys’ fees and Rule 11 sanctions. Id. The
district court denied the Rule 11 motion for sanctions, but
granted in part Applause’s motion for attorneys’ fees without
determining the amount of fees and costs. Id. Prior to the
determination of the fees, Kennedy filed a “Notice of
Amended Appeal” from the order. Id. Because Kennedy
filed the notice of appeal before the district court calculated
the fees and costs, we addressed the merits of Kennedy’s
claim based on the summary judgment order, but dismissed
the challenge to the attorneys’ fees award as premature. Id.
at 1482.
We reasoned that, because the amount of fees had yet to
be determined and the court had requested further
HAJRO V. USCIS 17
submissions from both parties to finalize the fee amount, the
district court’s order was not one “that would be appealable
if immediately followed by the entry of judgment.” Id. at
1483 (quoting FirsTier, 498 U.S. at 276). In other words,
more than a ministerial task remained. Id. (citing In re Jack
Raley Constr., Inc., 17 F.3d at 294).
Here, the district court’s October 13, 2011, summary
judgment order addressed both cross-motions for summary
judgment and all of Plaintiffs’ claims. Hajro I, 832 F. Supp.
2d at 1099–1100. Because the district court disposed of all
claims, we find that the summary judgment order “would be”
immediately appealable if immediately followed by the entry
of judgment. However, like Kennedy, the district court
requested proposed forms of injunction from both parties in
order to craft the permanent injunction. USCIS could not
have “reasonably but mistakenly believe[d]” their notice of
appeal included the permanent injunction when the parties
continued to debate the final language and scope of the
injunction. FirsTier, 498 U.S. at 276. The claim USCIS now
appeals—the scope of the permanent injunction—would not
be immediately appealable because the scope and language of
the injunction were not yet final when the government filed
the notice of appeal. The issuance of the permanent
injunction where the parties continued to debate the language
was not merely ministerial.
To be clear, a significant amount of overlap exists
between the summary judgment order and the permanent
injunction. For example, both orders assert subject matter
jurisdiction over the Settlement Agreement and provide relief
18 HAJRO V. USCIS
for Plaintiffs’ pattern or practice claim.3 However, the
3
For example, compare part of the Summary Judgment Order with the
first two paragraphs of the Permanent Injunction. The Summary
Judgment Order provides, in part:
[P]artial summary judgment is GRANTED in favor of
Plaintiffs on Plaintiffs’ claims for injunctive relief
requiring USCIS to: 1) provide a copy of a requestor’s
file within the twenty-day time limit mandated by
5 U.S.C. § 552(a)(6)(A); and 2) give the written notice
mandated by 5 U.S.C. § 552(a)(6)(B) if an extension of
time is needed due to “unusual circumstances”. . .
[P]artial summary judgment is GRANTED in favor of
Plaintiffs on Plaintiffs’ claim that USCIS’s Track 3
FOIA processing policy and regulation violates the
Settlement Agreement and was promulgated in
violation of the APA and FOIA . . .
Hajro I, 832 F. Supp. 2d at 1099–100. The Permanent Injunction
provides, in part:
Having determined [] [USCIS] to be in violation of
certain provisions of the [FOIA] for the reasons set
forth in the court’s order of October 13, 2011 on
cross-motions for summary judgment, including
FOIA’s timing provisions as set forth in 5 U.S.C.
§ 552(a)(6), the court hereby orders that:
1) USCIS shall comply with the requirements set forth
in 5 U.S.C. § 552(a)(6)(A) and (B).
a) USCIS shall provide a copy of a requestor’s alien
registration file within the twenty–business–day time
limit mandated by 5 U.S.C. § 552(a)(6)(A)(i).
b) USCIS shall make a determination with respect to
any FOIA appeal within the twenty–business–day time
limit mandated by 5 U.S.C. § 552(a)(6)(A)(ii).
HAJRO V. USCIS 19
nationwide scope of the permanent injunction became
apparent only after the district court issued the permanent
injunction on May 7, 2012.4 While we do not exercise
jurisdiction directly over the district court’s permanent
injunction nor opine on its scope, our reversal of the summary
judgment order will inevitably undermine the justification for
the permanent injunction.5
c) USCIS shall issue the written notice mandated by
5 U.S.C. § 552(a)(6)(B) to a requestor if an extension of
an additional ten business days is needed due to
“unusual circumstances.” This written notice must set
forth the unusual circumstances, as defined in 5 U.S.C.
§ 552(a)(6)(B)(iii) for such extension and setting a new
response date. The final response date shall be within
30 business days of the original request date.
2) USCIS shall follow, implement, and execute the
terms of the 1992 Mayock Settlement Agreement. . . .
Id. at 1120.
4
The permanent injunction’s final paragraph states: “4) USCIS shall
issue a written notice to the USCIS National Records Center describing
the terms of this permanent injunction and instructing the National
Records Center regarding compliance with the terms of this injunction.”
Hajro I, 832 F. Supp. 2d at 1120.
5
In crafting a permanent injunction of national consequence, the district
court must consider the likelihood of recurrence, the effect on the public
of disclosure or nondisclosure, the agency’s good faith intent to comply,
and the character of past violations. Long v. I.R.S., 693 F.2d 907, 909 (9th
Cir. 1982) (citing GSA v. Benson, 415 F.2d 878, 880 (9th Cir. 1969) and
United States v. W.T. Grant Co., 345 U.S. 629, 633 (1952)); see, e.g., S.
Yuba River Citizens League v. Nat’l Marine Fisheries Serv., No.
CIVS-06-2845 LKK/JFM, 2008 WL 2523819 (E.D. Cal. June 20, 2008).
20 HAJRO V. USCIS
In sum, we have jurisdiction to review the summary
judgment order, but dismiss USCIS’s challenge to the scope
of the permanent injunction for lack of jurisdiction.
Nonetheless, because we reverse and remand the summary
judgment order, we must vacate the current injunction.
III
In a FOIA case, instead of determining whether a genuine
issue of material fact exists, we employ a special two-step
standard to review the grant of summary judgment. See Ctr.
for Biological Diversity v. U.S. Dep’t of Agric., 626 F.3d
1113, 1116 (9th Cir. 2010). First, we ask whether an
adequate factual basis supports the district court’s ruling de
novo. Pac. Fisheries, Inc. v. United States, 539 F.3d 1143,
1149 (9th Cir. 2008). Second, “[i]f we determine that an
adequate factual basis exists to support the district court’s
decision, we review the district court’s conclusions under
either the clearly erroneous or de novo standard of review,
depending on whether the district court’s conclusions are
primarily factual or legal.” Id.
The district court’s determination whether a party has
standing, and whether there is subject matter jurisdiction, is
reviewed de novo. See San Luis & Delta-Mendota Water
Auth. v. United States, 672 F.3d 676, 699 (9th Cir. 2012);
Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir. 2002). The
district court’s factual findings on jurisdictional issues are
reviewed for clear error. See Schnabel, 302 F.3d at 1029.
IV
Reviewing the summary judgment order, we hold (1) that
the jurisdictional rule announced in Kokkonen v. Guardian
HAJRO V. USCIS 21
Life Ins. Co., 511 U.S. 375 (1994), applies retroactively to the
1992 Settlement Agreement; and (2) 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.6
As such, we must reverse the summary judgment order as to
Claims One and Two. While we recognize the harsh
consequence, especially considering the parties relied on
Ninth Circuit case law as it stood in 1992, “we simply cannot
waive sovereign immunity where Congress has not.” United
States v. Park Place Assocs., Ltd., 563 F.3d 907, 935 (9th Cir.
2009); United States ex rel. Haight v. Catholic Healthcare
W., 602 F.3d 949, 953 (9th Cir. 2010) (a rule given strict
retroactive effect by the Supreme Court must be applied to all
cases “no matter how inequitable the result”).
A
Under the Supreme Court’s decision in Kokkonen, a
district court does not have the inherent power to enforce the
terms of a settlement agreement under the doctrine of
ancillary jurisdiction. Kokkonen, 511 U.S. at 381–82. If a
district court wishes 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. Id. at 380–81.
6
USCIS acknowledges that it did not raise this jurisdictional issue
before the district court. However, failure to challenge the district court’s
jurisdiction below does not ordinarily constitute waiver. See Attorneys
Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594–95 (9th Cir.
1996). A jurisdictional issue may be raised for the first time on appeal
regardless of its “constitutional magnitude.” Clinton v. City of New York,
524 U.S. 417, 428 (1998).
22 HAJRO V. USCIS
Here, the parties do not dispute that the district court’s 1992
order did neither.
Instead, Plaintiffs argue that Kokkonen, decided in 1994,
should not be applied retroactively to the Settlement
Agreement, filed in 1992. Plaintiffs cite Chevron Oil v.
Huson, 404 U.S. 97 (1971), for the proposition that whether
a Supreme Court decision applies retroactively depends on a
three-prong test.7 Plaintiffs misunderstand the law.
When the Supreme Court announces a new rule and
retroactively applies it to the case before it, all courts must
apply the rule retroactively. Harper v. Va. Dep’t of Taxation,
509 U.S. 86, 90 (1993); Catholic Healthcare W., 602 F.3d at
953; Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089
(9th Cir. 2007); see also Christopher A. Goelz et al., Ninth
Circuit Civil Appellate Practice ¶8:815 (The Rutter Group
2015). Silence on the issue indicates that the decision is to be
given retroactive effect. Harper, 509 U.S. at 97–98;
Gonzales v. U.S. Dep’t of Homeland Sec., 659 F.3d 930,
938–39 (9th Cir. 2011). Otherwise, the retroactivity depends
on the three-prong test from Huson.
Furthermore, where a Supreme Court decision affects our
jurisdiction to hear certain claims, the jurisdictional ruling has
retroactive effect. Firestone Tire & Rubber Co. v. Risjord,
449 U.S. 368, 379 (1981); Austin v. City & Cty. of Honolulu,
7
The three-prong test considers: (1) the history of the decision in
question—i.e., whether it overrules past precedent or decides an issue of
first impression; (2) whether retroactivity would advance or hinder the
new rule’s application; and (3) the extent of any inequity that would result
from retroactive application. Huson, 404 U.S. at 106–07; Holt v. Shalala,
35 F.3d 376, 380 (9th Cir. 1994).
HAJRO V. USCIS 23
840 F.2d 678, 682 (9th Cir. 1988) (jurisdictional rulings “may
never be made prospective only”); see Catholic Healthcare
W., 602 F.3d at 953. Here, the Supreme Court’s rule
announced in Kokkonen—that a district court does not have
the inherent power to enforce the terms of a settlement
agreement under the doctrine of ancillary jurisdiction—
explicitly deals with the jurisdiction of federal courts.
Moreover, the Kokkonen court applied this new jurisdictional
rule to the parties before it. Therefore, we hold the Kokkonen
rule applies retroactively to the 1992 Settlement Agreement.
B
Next, Plaintiffs contend that, even if Kokkonen applies,
the district court may assert supplemental jurisdiction under
28 U.S.C. § 1367 over two contract claims because they are
part of a common nucleus of operative fact related to seven
other federal claims.8 Unlike Kokkonen, where the parties
8
Plaintiffs make three additional creative but unpersuasive arguments.
First, Plaintiffs argue that the district court had subject matter jurisdiction
under 28 U.S.C. § 1331 to review the Settlement Agreement because the
Agreement was part of “separate guidance” adopted by USCIS under a
federal regulation. See Freedom of Information Act and Privacy Act
Procedures, 68 Fed. Reg. 4056-01 (Jan. 27, 2003). To find jurisdiction on
this ground, we would have to make two inferential leaps. First, we would
have to accept that the federal regulation cited by Plaintiffs referencing
“separate guidance” adopted by the Department of Homeland Security
(“DHS”) includes the 1992 Settlement Agreement. Then, we would have
to infer that since the federal regulation incorporates the 1992 Settlement
Agreement, it arises under the FOIA statute. Besides Plaintiffs’ assertion
that the Settlement Agreement is “separate guidance” adopted by USCIS,
there is no evidence or case law presented that DHS’s reference to
“separate guidance” intended to include all settlement agreements the
agency entered into with private parties. The connection is too attenuated
to serve as a basis for jurisdiction.
24 HAJRO V. USCIS
asserted diversity jurisdiction to get into federal court, here
the jurisdictional basis is primarily a federal question under
the FOIA statute. This is persuasive, but the federal
government is not your typical defendant—a party also needs
permission from Congress to sue the government.
Although some Ninth Circuit cases have conflated the
two, sovereign immunity and subject matter jurisdiction
present distinct issues. See Park Place Assocs., Ltd.,
563 F.3d at 923 (citing cases conflating the two issues);
Arford v. United States, 934 F.2d 229, 231 (9th Cir. 1991);
see also Ralph C. Nash & John Cibinic, Specific Relief v.
Money Damages: Subcontractors Caught in the Web of
Sovereign Immunity, in 13 No. 5 Nash & Cibinic Rep. ¶ 25
(1999). A waiver of sovereign immunity means the United
States is amenable to suit in a court properly possessing
Second, Plaintiffs point out that the Settlement Agreement and the
parties contemplated that the district court would enforce the terms of the
Agreement. However, unlike personal jurisdiction, “no action of the
parties can confer subject-matter jurisdiction upon a federal court.” Ins.
Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982); see also Janakes v. U.S. Postal Serv., 768 F.2d 1091,
1095 (9th Cir. 1985) (“[P]arties cannot by stipulation or waiver grant or
deny federal subject matter jurisdiction.”).
Third, Plaintiffs contend that the district court could enforce the
Settlement Agreement because it had an independent basis for federal
jurisdiction. See Kokkonen, 511 U.S. at 382. That jurisdiction is based
on Plaintiffs’ claim that USCIS’s “Track 3” policy violated the FOIA
statute and the Due Process clause. Assuming arguendo that Plaintiffs are
correct about Track 3, FOIA and the Due Process clause would provide
subject matter jurisdiction to the district court to review USCIS’s Track
3 policy–not the Settlement Agreement. Thus, Plaintiffs’ suggestion that
enforcing the Settlement Agreement cures the alleged due process
violation does not overcome Kokkonen and provide federal jurisdiction
over the Settlement Agreement.
HAJRO V. USCIS 25
jurisdiction; it does not guarantee a forum. See Alvarado v.
Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir.
2007) (“To confer subject matter jurisdiction in an action
against a sovereign, in addition to a waiver of sovereign
immunity, there must be statutory authority vesting a district
court with subject matter jurisdiction.”).
Conversely, if the district court here wished to avail itself
of 28 U.S.C. § 1367, it would need a congressional waiver of
sovereign immunity to enforce the 1992 Agreement against
the federal government.9 See Park Place Assocs., Ltd.,
563 F.3d at 924; see also Dep’t of the Army v. Blue Fox, Inc.,
525 U.S. 255 (1999). The issue then becomes what Congress
contemplated by inserting its waiver provision in FOIA and
whether that waiver can include a contract entered into
between a private party and a federal agency related to FOIA
litigation.
We begin our inquiry with the Supreme Court’s
instruction that “a waiver of sovereign immunity is to be
strictly construed, in terms of its scope, in favor of the
sovereign.” Blue Fox, Inc., 525 U.S. at 261 (citing Lane v.
9
USCIS’s invocation of the Tucker Act is a red herring. The Tucker
Act does not apply to contract claims primarily seeking injunctive relief.
See United States v. Mitchell, 463 U.S. 206, 216–17 (1983). Plaintiffs
themselves concede the Settlement Agreement primarily contemplates
injunctive relief. The Tucker Act, 28 U.S.C. § 1491, grants subject matter
jurisdiction to the Court of Federal Claims. This jurisdictional grant is
limited to monetary claims based on contracts with the United States and
money-mandating constitutional provisions, statutes, regulations, or
executive orders. Id. at 215–18. “FOIA claims are not within the subject
matter jurisdiction of the Court of Federal Claims because FOIA does not
mandate money damages.” Clark v. United States, 116 F. App’x 278, 279
(Fed. Cir. 2004) (referencing 5 U.S.C. § 552(a)(4)(B)).
26 HAJRO V. USCIS
PenÞa, 518 U.S. 187, 192 (1996), and Library of Congress v.
Shaw, 478 U.S. 310, 318 (1986)). The Supreme Court has
frequently cautioned against finding implied waivers of
sovereign immunity. Id.
Plaintiffs have the burden of meeting this high
standard—such a waiver must be “unequivocally expressed”
in the statutory text. Id. FOIA’s waiver of immunity and
jurisdictional grant provides that district courts have
“jurisdiction to enjoin the agency from withholding agency
records and to order the production of any agency records
improperly withheld from the complainant.” See 5 U.S.C.
§ 552(a)(4)(B).
Beginning with the plain language in § 552(a)(4)(B), “to
enjoin” is defined as “[t]o legally prohibit or restrain by
injunction. To prescribe, mandate, or strongly encourage.”
Enjoin, Black’s Law Dictionary (10th ed. 2014). The plain
language clearly contemplates declaratory and injunctive
relief, which is what Plaintiffs seek. However, Plaintiffs’
cause of action (a contract claim) is not “unequivocally
expressed” in the statute. Mayock is not seeking to enforce
the statutory mandate to provide timely FOIA disclosures
itself, rather he seeks enforcement of his own private
agreement with a federal agency related to FOIA requests.
As mentioned above, supra note 8, aside from a citation to a
federal regulation that may or may not apply, Mayock
provides no support for this argument. Furthermore, a review
of the legislative history of § 552(a)(4)(B) does not support
a finding that an agency settlement agreement related to
FOIA disclosures was contemplated by Congress as an
HAJRO V. USCIS 27
“improper” withholding.10 Strictly construing the waiver of
immunity in favor of the sovereign, we find no waiver of
sovereign immunity to enforce the terms of the Settlement
Agreement under a theory of supplemental jurisdiction. Blue
Fox, Inc., 525 U.S. at 261.
In sum, because Kokkonen applies retroactively and the
1992 district court order did not retain jurisdiction over the
prior lawsuit’s Settlement Agreement, the district court does
not have the inherent power to enforce the terms of the
Settlement Agreement. Even asserting supplemental
jurisdiction over the contract claims, Plaintiffs’ suit to enforce
the contract still fails as they have not met their burden of
proving an “unequivocally expressed” congressional waiver
of sovereign immunity. Therefore, we reverse summary
judgment in favor of Plaintiffs as to Claims One and Two.
V
USCIS also challenges the district court’s finding that
Hajro and Mayock satisfied the standing elements to bring a
pattern or practice claim. Because USCIS has not appealed
the district court’s finding with respect to Hajro’s specific
FOIA request (Claims Three, Four, and Six), we limit our
review to the pattern or practice claim (Claim Five). We hold
that the factual record is not sufficiently developed to
determine whether Mayock has standing to bring a pattern or
10
See H.R. Rep. No. 92-1419, at 70–73 (1972) (discussing courts’
interpretation of FOIA and amendments clarifying that courts have the
authority to review in camera documents when an agency asserts the
exemption based on national defense or foreign policy); H.R. Rep. No. 93-
876, at 5–6 (1974); S. Rep. No. 93-1200 (1974); H.R. Rep. No. 104-795,
at 7–11. (1996) (discussing the evolution of the Freedom of Information
Act; no mention of settlement agreements).
28 HAJRO V. USCIS
practice claim, satisfying the personal harm and future harm
prongs under our clarified standard. Mayock’s single FOIA
response addressed to another lawyer at his firm is
insufficient to prove personal harm. Hajro, on the other hand,
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 “will impair
[Hajro’s] lawful access to information in the future” is now
remote. Payne Enters., Inc., 837 F.2d at 491. Therefore, we
reverse and remand for further fact finding as to Mayock’s
standing and dismiss Hajro’s claim as moot.11 See Pac.
Fisheries, Inc., 539 F.3d at 1149.
***
We begin our inquiry with the “irreducible constitutional
minimum” elements of standing: injury in fact, causation, and
redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). Neither party debates causation or redressability.
The contested element here is the showing of injury in fact in
the context of injunctive relief.
A plaintiff can establish injury in fact by showing that he
suffered “an invasion of a legally protected interest which is
11
Although some issues pertaining to Plaintiffs’ standing in seeking
injunctive relief may also be relevant to the merits, we do not mean to
prejudge the merits of this pattern or practice claim. The standing
issue—whether Hajro and Mayock have alleged an injury in fact—is
separate but related to the question of whether Plaintiffs have established
that USCIS has a pattern or practice of untimely responses to FOIA
requests under 5 U.S.C. § 552(a)(6)(A), (B), (C). While we limit our
holding to the question of standing, the district court’s supplementation of
the record may well overlap with the merits of any pattern or practice
claim.
HAJRO V. USCIS 29
(a) concrete and particularized; and (b) actual or imminent,
not conjectural or hypothetical.” Id. (internal quotations and
citations omitted). Where a party seeks injunctive relief, he
must allege a sufficient likelihood that he will be subjected in
the future to the allegedly illegal policy. Lyons, 461 U.S. at
105, 110. At the summary judgment stage, “the plaintiff can
no longer rest on [] ‘mere allegations’ but must ‘set forth’ by
affidavit or other evidence ‘specific facts,’ which for
purposes of the summary judgment motion will be taken to be
true.” Lujan, 504 U.S. at 561 (internal citations omitted).
We clarify that the Article III requirements for a specific
FOIA request claim and a pattern or practice claim differ
from each other. We have recognized two separate claims
that complainants can bring against an agency under FOIA.
The first is a suit where a plaintiff attacks a specific agency
action for (1) “improperly” (2) “withheld” (3) “agency
records.” Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 150 (1980). For specific FOIA request
claims, after the agency produces all non-exempt documents
and the court confirms the agency’s proper invocation of an
exemption, the specific FOIA claim is moot because the
injury has been remedied. See, e.g., Perry v. Block, 684 F.2d
121, 125 (D.C. Cir. 1982) (“[I]f we are convinced that
appellees have, however belatedly, released all nonexempt
material, we have no further judicial function to perform
under the FOIA.”); see also Papa v. United States, 281 F.3d
1004, 1013 & n.42 (9th Cir. 2002).
A FOIA requester may also assert a FOIA pattern or
practice claim—a “claim that an agency policy or practice
will impair the party’s lawful access to information in the
future.” Payne Enters., Inc., 837 F.2d at 491 (emphasis in
original); accord Newport Aeronautical Sales v. Dep’t of the
30 HAJRO V. USCIS
Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012). For example,
we have recognized a pattern or practice claim for
unreasonable delay in responding to FOIA requests. See
Mayock, 938 F.2d at 1006; Long, 693 F.2d at 909–10.
We now clarify, based on Lujan and our own precedent,
that where a plaintiff alleges a pattern or practice of FOIA
violations and seeks declaratory or injunctive relief,
regardless of whether his specific FOIA requests have been
mooted, the plaintiff has shown injury in fact if he
demonstrates the three following prongs: (1) the agency’s
FOIA violation was not merely an isolated incident, (2) the
plaintiff was personally harmed by the alleged policy, and (3)
the plaintiff himself has a sufficient likelihood of future harm
by the policy or practice. See Lujan, 504 U.S. at 563; Lyons,
461 U.S. at 105; Long, 693 F.2d at 909–10. In other words,
a pattern or practice claim is not necessarily mooted by an
agency’s production of documents. Payne Enters., Inc.,
837 F.2d at 491 (holding that a pattern or practice claim is
viable “[s]o long as an agency’s refusal to supply information
evidences a policy or practice of delayed disclosure or some
other failure to abide by the terms of the FOIA, and not
merely isolated mistakes by agency officials”).
These three requirements are not novel, but do clarify our
pattern or practice jurisprudence. This standard packages our
own precedent that recognizes FOIA pattern or practice
claims and the availability of injunctive relief where the
“alleged illegal conduct will recur,” Long, 693 F.2d at 909,
and Supreme Court precedent holding that an injury in fact
“requires that the party seeking review be himself among the
injured,” Sierra Club v. Morton, 405 U.S. 727, 735 (1972).
Morever, because Plaintiffs seek injunctive relief, Plaintiffs
must show a likelihood of future harm caused by the policy
HAJRO V. USCIS 31
or practice. Lyons, 461 U.S. at 105. Thus, for the purposes
of clarifying the FOIA pattern or practice claim standing
requirements, we divide the alleged injury in fact into three
parts.
A
Both Mayock and Hajro meet the first prong of the test
for the purposes of Article III standing. Although this first
prong overlaps with the merits of a pattern or practice claim,
we comment only on the standing aspect here. For the
purposes of our standing inquiry, we simply review whether
the plaintiff asserted that the federal agency has a pattern or
practice of violating FOIA and if the plaintiff has provided
any type of “specific facts” beyond “mere allegations.”
Lujan, 504 U.S. at 561; see also City of Houston v. Dep’t of
Housing & Urban Dev., 24 F.3d 1421, 1429–30 (D.C. Cir.
1994). Plaintiffs have a number of ways to prove that the
agency’s FOIA violation was not an isolated event. For
example, a plaintiff can provide evidence that he has been
subjected to a FOIA violation more than once. Or a plaintiff
can provide the court with affidavits of people similarly
situated to the plaintiff who were also harmed by the pattern
or practice.
Here, Mayock and Hajro opted for the latter. First, both
Plaintiffs expressly allege in their complaint “that Defendants
have a pattern or practice of failing to comply with the time
requirement” set forth in 5 U.S.C. § 552(a)(6)(A), (B), (C).
To support their allegation, Plaintiffs then provided twenty-
six declarations by immigration attorneys detailing USCIS’s
delayed FOIA responses and attached a delayed FOIA
request as proof. Therefore—for the purposes of standing
32 HAJRO V. USCIS
and without opining on the merits—both Plaintiffs have met
this prong.
Next, we consider each Plaintiff individually to
determine whether they meet the remaining elements of the
test.
B
1
Under prong two, Mayock must demonstrate he was
personally harmed by the alleged pattern or practice. See
Lujan, 504 U.S. at 563; Payne Enters., Inc., 837 F.2d at 491.
USCIS attacks Mayock’s standing, arguing he was not
personally harmed because Mayock, as an attorney, is not a
requester under FOIA. Additionally, USCIS argues that
Mayock must meet the third party standing requirements,
which he cannot establish because he is suing on behalf of
prospective clients. We find both arguments unavailing.
First, a practicing immigration attorney who files and
signs FOIA requests is a requester under FOIA. USCIS’s
own FOIA request form (Form G-639) lists the attorney as
the “requestor” of information.12 We have previously
accorded Mayock “requestor” status in his capacity as an
attorney to bring a pattern or practice claim. See Mayock,
12
See U.S. Citizenship and Immigration Services, G-639, Freedom of
Information Act/Privacy Act Request, http://www.uscis.gov/g-639 (last
visited December 15, 2015).
HAJRO V. USCIS 33
938 F.2d at 1007 n.1.13 FOIA’s text and legislative intent also
support our categorization of Mayock as a requester. The
statute’s very first section begins with “[e]ach agency shall
make available to the public information as follows . . . .”
5 U.S.C. § 552(a) (emphasis added). The statute further
states that if an agency’s requesting procedures are followed,
the agency “shall make the records promptly available to any
person.” 5 U.S.C. § 552(a)(3)(A) (emphasis added). Based
on this broad statutory language, courts have held that
whoever is named on a FOIA request is generally a requester.
See, e.g., McDonnell v. United States, 4 F.3d 1227, 1236 (3d
Cir. 1993). Here, Mayock produced one FOIA response
addressed to an attorney at his firm, rather than the client who
was the subject of the request. This shows that attorneys can
be requesters under FOIA. See also Unigard Ins. Co. v. Dep't
of Treasury, 997 F. Supp. 1339, 1342 (S.D. Cal. 1997)
(holding attorney named on FOIA request had standing but
client did not because client’s name was not on the request).
Thus, if Mayock can show that he personally filed and signed
a request, he is a requester for the purposes of FOIA.
Next, USCIS argues that Mayock cannot establish
standing because he is suing on behalf of prospective clients,
citing to Kowalski v. Tesmer, 543 U.S. 125, 134 (2004). But
Kowalski implicates third party standing, and Mayock alleges
a personal injury in his capacity as a requester under FOIA.14
13
Although we have previously accorded Mayock standing in his
capacity as an attorney without comment, in light of Lujan and our refined
standard for a pattern or practice claim, here we need more information to
determine standing.
14
The Supreme Court has recognized the attorney-client relationship as
sufficient to confer third party standing. See Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 623 n.3 (1989); Dep’t of Labor
34 HAJRO V. USCIS
Mayock claims that as a requester, he has not received timely
FOIA responses in violation of the statute. This is sufficient
injury under FOIA.
To be injured under FOIA, Mayock does not need to have
a personal connection to the information he is requesting.
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)
(“[T]he Act clearly intended to give any member of the public
as much right to disclosure as one with a special interest
therein . . . .”). In the context of the Federal Election
Campaign Act, the Supreme Court has held that a failure to
get information is in itself a concrete injury. Fed. Election
Comm'n v. Akins, 524 U.S. 11, 21 (1998). Even the
dissenting justices in Akins suggested that a failure to get
information is a concrete injury under statutes like FOIA,
explaining “[a] person demanding provision of information
that the law requires the agency to furnish—one demanding
compliance with the Freedom of Information Act . . . for
example—can reasonably be described as being ‘aggrieved’
by the agency’s refusal to provide it.” See id. at 30–31
(Scalia, J., dissenting). This is so even if the requester’s
injury may be shared with the public at large because “where
a harm is concrete, though widely shared, the Court has found
‘injury in fact.’” Id. at 34–35.15
v. Triplett, 494 U.S. 715, 720 (1990). But see Kowalski, 543 U.S. at
132–33 (attorneys asserting future clients’ interest insufficient where the
attorneys also sought “a federal court to short circuit the State’s
adjudication of th[e] constitutional question”). Because the facts before
us do not implicate third party standing, we decline to apply that doctrine
here.
15
The dissent argues Mayock cannot establish standing because
“Mayock has asserted exclusively harm to his clients.” Dissent at 43.
This is wrong. First, Mayock, in his own right, alleged a pattern or
HAJRO V. USCIS 35
Although a delayed FOIA request may serve as a basis for
individual standing, at the summary judgment stage, we find
genuine issues of material fact as to whether Mayock himself
filed such a request. Mayock’s declaration avers that the
government has never produced the records within the
statutory time period nor provided written notice setting forth
“unusual circumstances.”16 True, USCIS’s delays produce a
practice in the complaint. See FAC ¶ 66 (“Plaintiffs allege that
Defendants have a pattern or practice of failing to comply with the time
requirements . . . .”) (emphasis added). The dissent misunderstands the
record. Mayock is not Hajro’s attorney; he is an independent plaintiff to
this lawsuit alleging a harm from USCIS’s pattern of delayed FOIA
responses in addition to a harm based on the Settlement Agreement.
Despite dismissing Mayock’s claims based on the Settlement Agreement,
we are not free to ignore Mayock’s independent cause of action alleging
a pattern or practice claim as the dissent suggests.
Second, if Mayock cannot establish standing for a pattern or practice
claim against USCIS delays upon remand, who can? Mayock is the model
plaintiff to assert a pattern or practice claim because his legal practice
depends upon the recurring delayed FOIA requests—whereas immigrants,
like Hajro, run the risk of mootness if they no longer have a need to file
a FOIA request from USCIS after the production of documents.
Third, nowhere does the dissent acknowledge that our court has
previously accorded Mayock—in his capacity as a lawyer—standing for
this exact claim, albeit under the law as it stood twenty-four years ago.
Finally, the dissent erroneously contends that “no prayer for relief [is]
reflected [in] any claim due to injury to Mayock separately as an
attorney.” Yet, Mayock seeks timely FOIA requests as a requester under
FOIA.
16
“In my practice I have sometimes filed requests under the [FOIA] to
obtain the alien registration files for my clients who have a previous
record with the Immigration Service. In none of these cases has the
government ever produced the records I have requested within the
statutory time period of twenty days nor has the government provided
36 HAJRO V. USCIS
concrete and particularized injury for Mayock if he can prove
he is a requester. But one FOIA response addressed to
another attorney at his firm is insufficient to prove his harm
was “actual or imminent.” Lujan, 504 U.S. at 561 (“[T]he
nature and extent of facts that must be averred (at the
summary judgment stage) . . . in order to establish standing
depends considerably upon whether the plaintiff is himself an
object of the action (or foregone action) at issue.”). We need
more.
The twenty-six declarations from attorneys around the
country that Mayock provides as examples of delayed FOIA
requests go to prong one of the standing inquiry as well as the
merits of the pattern or practice claim. They do not help
Mayock establish his personal harm. Mayock must prove that
he was a requester subject to delayed FOIA requests at the
time he filed his complaint. See Nat’l Sec. Counselors v.
C.J.A., 931 F. Supp. 2d 77, 92 (D.D.C. 2013).
The district court’s conclusion that Mayock had standing
is understandable without the benefit of this opinion. We also
recognize that upon remand Mayock may easily satisfy this
element; however, under our refined standard, where the
plaintiff alleges that an agency engages in a pattern or
practice of FOIA violations, he must provide sufficient
evidence that he has been a victim of this pattern or practice.
See Lujan, 504 U.S. at 561. Before he can credibly show that
he will file more delayed requests in the future under step
three, he must show that he personally filed a request, and
that request was delayed. Therefore, we reverse and remand
for the district court to conduct the requisite fact-finding and
written notice setting forth any ‘unusual circumstances’ for an extension
of time beyond the statutory period of twenty days.”
HAJRO V. USCIS 37
determine, in the first instance, whether Mayock meets
prongs two and three of the pattern or practice test (e.g.,
whether Mayock himself submitted a FOIA request to USCIS
at the time he filed this complaint; whether Mayock himself
will likely file more FOIA requests with USCIS in the
future).
2
Hajro’s case under prong two is simpler. His specific
FOIA request delayed by USCIS is sufficient to demonstrate
that he was personally harmed by USCIS’s pattern of delay
in contravention of FOIA’s time limits. USCIS responded to
Hajro’s November 2007 FOIA request almost four months
later, well beyond the twenty-day limit prescribed by
5 U.S.C. § 552(a)(6)(A), and it “did not include notice of any
‘unusual circumstances’ justifying an extension of the
statutory twenty-day time limit” per 5 U.S.C. § 552(a)(6)(B).
Hajro I, 832 F. Supp. 2d at 1100–01. As a result, Hajro
proceeded to his denial of citizenship appeal without the
requested information to rebut USCIS’s allegations against
him. Id. This is sufficient to show Hajro was personally
harmed by USCIS’s alleged pattern or practice of FOIA
violations.
C
The Supreme Court has held that “[p]ast exposure to
illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied
by any continuing, present adverse effects.” Lyons, 461 U.S.
at 102 (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96
(1974)). Because FOIA’s prescribed relief is injunctive or
declaratory, generally a plaintiff alleging a pattern or practice
38 HAJRO V. USCIS
claim under FOIA must also meet this future harm
requirement. See 5 U.S.C. § 552(a)(4)(B).
Because Mayock did not provide sufficient evidence of
his personal harm, we also remand to allow the district court
to determine prong three in the first instance after the
requisite fact finding.
While this case was pending before us, Hajro successfully
appealed USCIS’s denial of his application for citizenship.
Hajro v. Barrett, No. C 10–01772 MEJ, 2011 WL 2118602
(N.D. Cal. May 27, 2011); Hajro v. Barrett, 849 F. Supp. 2d
945 (N.D. Cal. 2012). Thus, based on the record before us,
the likelihood that Hajro will file another FOIA request from
USCIS seeking access to his alien file is remote.17 See Big
Lagoon Rancheria v. California, 789 F.3d 947, 955 (9th Cir.
2015) (en banc) (“A case is moot on appeal if no live
controversy remains at the time the court of appeals hears the
case. . . .”) (citation omitted).
Seeking injunctive relief on a pattern or practice claim
requires that Hajro himself will likely suffer future injury
from USCIS’s delayed FOIA requests or demonstrate his
injury would be capable of repetition, yet evading review.
See Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 170
(2000) (detailing when a defendant’s voluntary cessation of
an allegedly wrongful behavior does not moot a case if the
behavior could reasonably be expected to recur); Lyons,
461 U.S. at 105; Long, 693 F.2d at 909. Here, Hajro’s harm
was based on USCIS’s delayed response in turning over his
17
Plaintiffs’ reference to the Controlled Application Review and
Resolution Program (“CARRP”) is not part of the district court record and
cannot be a basis to support the likelihood of future harm.
HAJRO V. USCIS 39
alien registration file to support his application for
naturalization. But with citizenship in hand, it is unlikely
USCIS “will impair [Hajro’s] lawful access to information in
the future.” Payne Enters., Inc., 837 F.2d at 491. We reverse
and remand as to Hajro’s pattern or practice claim with
instructions to dismiss his claim as moot.
VI
In sum, we have jurisdiction to review the district court’s
summary judgment order under FRAP 4(a)(2), but dismiss
USCIS’s challenge to the permanent injunction for lack of
jurisdiction. We reverse the district court’s summary
judgment order with respect to Claims One and Two because
it lacked a waiver of sovereign immunity to enforce the terms
of the 1992 Settlement Agreement. Based on the clarified
pattern or practice test, we reverse and remand so that the
district court can make the requisite factual findings and
determine in the first instance whether Mayock has standing
to bring this claim. We also reverse and remand Hajro’s
pattern or practice claim with instructions to dismiss the
claim as moot. In light of our reversal, we vacate the
permanent injunction and we also vacate and remand the
attorneys’ fees award for recomputation.
The parties shall bear their own costs on appeal.
DISMISSED in part, REVERSED and REMANDED in
part with instructions.
40 HAJRO V. USCIS
RAWLINSON, Circuit Judge, concurring in part and
dissenting in part:
I agree with the majority that we have jurisdiction to
review the summary judgment order and, although it is an
extremely close question, I ultimately agree that the
government’s premature appeal did not preserve its challenge
to entry of the permanent injunction.
I also have no quarrel with the majority’s conclusion that
the jurisdictional rule announced in Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375 (1994) applies retroactively to the
1992 Settlement Agreement. Because the district court did
not retain jurisdiction over the Settlement Agreement or
incorporate the agreement into the final judgment, the district
court lacked jurisdiction to enforce the agreement under the
doctrine of ancillary jurisdiction. See id. at 380–81. Having
determined the lack of jurisdiction on that basis, I see no need
to wade into the sovereign immunity issue. Finally, I agree
that Mirsad Hajro lost standing to bring a pattern or practice
claim once he was granted citizenship.
The only issue on which I part company with the majority
is the issue of James Mayock’s standing to bring a claim
under the Freedom of Information Act in his own right.
Mayock simply failed to allege any individual harm to him
other than indirectly through harm to his clients.
We all agree that Mayock, Hajro’s attorney, failed to
establish standing to bring an action under the Freedom of
Information Act under the operative complaint. In addition,
there is no indication in this record that on remand he will be
able to plausibly allege an injury in fact, one of the
HAJRO V. USCIS 41
“irreducible constitutional” elements of standing. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
The Supreme Court has described the injury requirement
as suffering “an injury in fact—an invasion of a legally
protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical.”
Id. (citations and internal quotations marks omitted). In
addition, the party asserting an injury in fact must plausibly
allege “a causal connection between the injury and the
conduct complained of—the injury has to be fairly traceable
to the challenged action of the defendant . . . Id. (citation,
alterations, and internal quotation marks omitted).
In the First Amended Complaint, the allegations focused
exclusively on harm to Plaintiff Hajro and violation of the
Settlement Agreement.
The First Cause of Action alleged that the multi-track
policy violated the Settlement Agreement by allowing
expedited processing only for cases scheduled for a hearing
before an immigration judge. The First Cause of Action
specifically asserted a violation of “essential due process
protections for aliens.”
The Second Cause of Action asserted that denial of
expedited processing of Hajro’s Freedom of Information Act
request impaired Hajro’s “substantial due process rights . . .
to a fair hearing” under the immigration statutes.
The Third Cause of Action alleged that the failure to
provide Hajro the requested material within 20 days violated
the Freedom of Information Act and its implementing
regulation.
42 HAJRO V. USCIS
The Fourth Cause of Action alleged a violation of the
notification requirement of “the unusual circumstances which
prevented the agency from processing [Hajro’s] request
within the 20 day statutory limit.” (internal quotation marks
omitted).
The Fifth Cause of Action alleged a pattern or practice of
noncompliance.
The Sixth Cause of Action characterized the agency’s
action as arbitrary, capricious, willful and unreasonable.
The Seventh Cause of Action alleged a violation of
Hajro’s “due process rights because [withholding the
requested documents] prevented [Hajro’s] attorney from
adequately preparing his brief on appeal,” in violation of
Hajro’s “right to a fair hearing and fundamental fairness.”
The Eighth Cause of Action alleged a violation of the
“Fifth Amendment guarantee of Equal Protection” by use of
a policy that “creates two classes of aliens.”
The Ninth and final Cause of Action alleged that
implementation of a new policy for processing document
requests without notice and an opportunity for comment
violated the Administrative Procedure Act.
The Prayer For Relief generally tracked the Causes of
Action. Notably, no prayer for relief reflected any claim due
to injury to Mayock separately as an attorney.
Similarly, Mayock’s declaration, submitted as part of the
summary judgment proceedings, focused on Freedom of
Information requests made on behalf of his clients. Not one
HAJRO V. USCIS 43
hint of injury to Mayock or to his practice was contained in
his declaration.1
Contrary to the majority opinion’s recharacterization of
his claims, Mayock has asserted exclusively harm to his
clients, primarily from failure to adhere to the Settlement
Agreement. Curiously, the majority opinion acknowledges
that “Mayock is not seeking to enforce the statutory mandate
to provide timely [Freedom of Information Act] disclosures
itself . . .” Majority Opinion, p. 26. Rather, the majority
recognizes, Mayock “seeks enforcement of his own private
agreement with a federal agency related to [Freedom of
Information Act] requests. . . .” Id. But the majority has
concluded, and I agree, that the district court cannot enforce
the Settlement Agreement. See Majority Opinion, pp. 21–22.
If the claims Mayock seeks to enforce are unenforceable, how
does he have standing?
In any event, the record in the district court does not
reflect any alleged harm to Mayock other than indirectly
through his clients. Speculation that Mayock may eventually
establish first-party standing based on unsubstantiated harm
to his ability to represent his clients is entirely contrary to the
position Mayock advocated before the district court. In his
opposition to the government’s motion to dismiss, Mayock
1
The majority espouses the view that Mayock alleged a pattern or
practice claim in his own right. See Majority Opinion, p. 34–35 n.15.
However, as noted above, no such claim is asserted in the First Amended
Complaint or Mayock’s declaration. The majority’s reference to
Paragraph 66 of the First Amended Complaint, see id., is unavailing. That
paragraph contains the single conclusory statement quoted by the majority,
with absolutely no reference to individual injury to Mayock. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that a complaint containing
only conclusory statements does not assert a plausible claim for relief).
44 HAJRO V. USCIS
maintained that he had standing as a party to the Settlement
Agreement, “a member of the public,” and “as a lawyer on
behalf of his injured clients.” Opposition To Motion To
Dismiss, January 19, 2009, p. 9. Mayock further asserted that
“a lawyer has standing to sue on behalf of his injured clients”
and that he had “standing to bring a pattern and practice
lawsuit alleging that Defendants routinely exceed the twenty
day legal response period in [the Freedom of Information
Act] on behalf of his injured clients.” Id. at 10 (emphases
added). Significantly, Mayock countered the government’s
reliance on Gilmore v. United States Dept. of Energy, 33 F.
Supp. 2d 1184 (N.D. Cal. 1998), a case involving first-party
standing, by asserting that he had third-party standing:
Defendants are correct that Gilmore was not
asserting any third party rights. He was
asserting his own. However . . . the courts
have allowed lawyers to assert the third party
rights of their clients in pattern and practice
cases. Therefore, the third party argument is
a red herring.
Id. at 10–11 (emphasis added). Additionally, Mayock
emphasized that:
The Complaint states that Plaintiff Mayock
has filed several [Freedom of Information
Act] requests on behalf of his clients seeking
copies of their alien registration files and it
has taken more than twenty days for
Defendants to produce the records in those
cases. . . . As Plaintiff Mayock’s clients’
[Freedom of Information Act] requests are
processed in an untimely manner, they suffer
HAJRO V. USCIS 45
an injury which can be redressed by an
injunction. Because Plaintiff Mayock is an
attorney, he has standing to seek this redress
by means of a pattern and practice lawsuit.
Id. at 11 (emphases added). Because Mayock relied on the
First Amended Complaint in asserting third-party standing to
file a pattern and practice claim on behalf of his clients, it is
inappropriate to suggest reinvention of his claim to establish
standing on remand. See Yamada v. Snipes, 786 F.3d 1182,
1203–04 (9th Cir. 2015) (“As with all questions of subject
matter jurisdiction except mootness, standing is determined
as of the date of the filing of the complaint. . . .”) (citation
omitted).
Contrary to the majority’s approach, Mayock’s
inadequate assertion of third-party standing requires dismissal
of his asserted claim, and precludes any further development
based on newly minted and speculative theories premised on
first-party standing. See La Asociacion de Trabajadores de
Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th
Cir. 2010) (holding that a party “may not effectively amend
its Complaint by raising a new theory of standing” at the
summary judgment stage) (citation omitted). As the majority
concedes, Mayock failed to present any evidence of the
requisite personal harm for standing, which is unsurprising
because he totally relied on third-party standing in the district
court proceedings. See Majority Opinion, p. 36; see also
Opposition To Motion To Dismiss, pp. 9–10. A remand for
re-pleading purposes is particularly inappropriate given the
majority’s recognition that the articulated standing
“requirements are not novel” and that “[t]his standard
packages our own precedent” and that of the Supreme Court.
Majority Opinion, p. 30. See La Asociacion de Trabajadores
46 HAJRO V. USCIS
de Lake Forest, 624 F.3d at 1089 (disapproving the delayed
pleading of a new theory of standing).2
I would reverse the district court’s ruling that Mayock had
standing to pursue an action in his own right, and remand for
dismissal.
In conclusion, I agree that we have jurisdiction over this
appeal, that the government’s premature appeal did not
preserve its challenge to entry of the permanent injunction,
that the district court did not retain jurisdiction to enforce the
settlement agreement, and that Hajro’s claims are moot. I
respectfully disagree that Mayock has standing. I would
reverse and remand for dismissal of all claims.
2
The majority seeks acknowledgment that we granted Mayock standing
in a FOIA case twenty-four years ago. See Majority Opinion, p. 35, n. 15.
It is notable that the majority concedes that Mayock’s claims were made
in his capacity as a lawyer. See id. More importantly, perhaps twenty-
four years ago, Mayock’s complaint was adequate. Today it is not. See
Bell Atlantic v. Twombly, 550 U.S. 544, 556–57 (2007) (setting forth
pleading standards under Rule 8); see also Iqbal, 556 U.S. at 678
(explaining that a complaint must assert plausible claims and not
conclusory statements).