The opinion of the court was delivered by: John F. Grady, United States District Judge
Defendants have moved to dismiss plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Alternatively, defendants ask us to remand the named plaintiffs' applications to the United States Citizenship and Immigration Services ("USCIS") pursuant to 8 U.S.C. § 1447(b). For the reasons explained below, we grant defendants' motion in part and deny it in part.
Plaintiffs are lawful permanent residents of the United States who have applied to be naturalized as United States citizens. (Compl. ¶ 3.) As part of the application review process, USCIS conducts backgrounds checks of each applicant. (Id. at ¶ 42.)*fn1 These background checks include: (a) an FBI fingerprint check; (b) a search of the Interagency Border Inspection System ("IBIS"), which contains records information "from more than 20 federal law enforcement agencies;" and (c) an FBI "name check," which is "run against FBI investigative databases containing information that is not necessarily revealed by the FBI's fingerprint check or IBIS." (Id. at ¶ 47.) The name and fingerprint checks were first implemented in 1998, after Congress prohibited USCIS from using any appropriated funds to adjudicate any naturalization application without first confirming that the FBI had completed a "full criminal background check" of the applicant. Department of Justice Appropriations Act of 1998, Pub.L. No. 105-119, Title I, Nov. 26, 1997, 111 Stat. 2448. The FBI, in turn, performs the background checks at USCIS' request on a "fee-for-service" basis "according to USCIS-defined standards." See Citizenship and Immigration Services Ombudsman Annual Report 2007 (hereinafter "Ombudsman Report"), attached as Exhibit 2 to Plaintiffs' Second Notice of New Authority, at 38.
When USCIS first implemented the name-check requirement in late 1997, applicant names were checked against the FBI's "main" files only. (Compl. ¶ 44, 47-48.) In November 2002, without prior notice and without accepting public comment, USCIS and the FBI agreed to expand the name check to include "references" to the applicant's name in the FBI's files. (Compl. ¶ 48; Ombudsman Report at 28 ("[T]he FBI provides information to USCIS regarding anyone who is the principal subject of an investigation or is a person referenced in a file.")) The new search criterion increased the amount of time required to complete certain name checks and has caused delays in the review process, generally. (Compl. ¶ 49; Pl. Opp'n at 20).
Before receiving the results of plaintiffs' background checks, USCIS interviewed each plaintiff to ascertain his or her command of English and to address any other concerns that USCIS might have about his or her application. (Compl. ¶ 31.) Plaintiffs cite Department of Homeland Security ("DHS") data indicating that USCIS adjudicates more than 50% of all cases on the same day that it interviews the applicant. Id. at ¶ 33. Approximately 90% of all applications are adjudicated within 120 days of the interview. Id. Plaintiffs fall within the remaining 10%: although all of the plaintiffs' interviews were completed before January 5, 2006, to date the USCIS has not adjudicated their applications. Id. at ¶¶ 22-26.
Plaintiffs have filed a six count complaint. Counts I-V are brought on behalf of a putative class of applicants in Illinois, Indiana and Wisconsin. Count I, brought against the "Immigration Defendants" (DHS, USCIS, Dorochoff and Chertoff), alleges that systematic delays in the naturalization application system violate the Administrative Procedures Act ("APA"). Count II, also brought against the Immigration Defendants, asserts a claim for mandamus relief for failing to adjudicate plaintiffs' applications in a "timely manner." Count III, brought against the "FBI Defendants" (Mueller and the FBI), asserts a claim for mandamus relief for failure to complete name checks in a timely manner. Count IV alleges that USCIS failed to follow required notice and comment procedures when it adopted the name check requirement. Count V alleges that the delays that plaintiffs have experienced relative to other applicants violates the equal protection component of the Fifth Amendment. In Count VI, brought by the named plaintiffs on their own behalf, plaintiffs ask us to adjudicate their naturalization applications pursuant to 8 U.S.C. § 1447(b).
I. Motion to Dismiss Standard
When considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a district court accepts as true all well-pled factual allegations and draws reasonable inferences from the allegations in favor of the plaintiff. Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993). The court may also look beyond the allegations of the complaint and consider affidavits and other documentary evidence to determine whether subject matter jurisdiction exists. Id.
The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). When evaluating such a motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999); Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997).
II. Claims Brought On Behalf of the Named Plaintiffs Only
A. Subject Matter Jurisdiction
Defendants contend that this court lacks jurisdiction to adjudicate the plaintiffs' applications. Congress has expressly limited federal courts' jurisdiction to adjudicate naturalization applications:
If there is a failure to make a determination under section 1446 before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.
8 U.S.C. § 1447(b). Whether we have jurisdiction turns on the proper interpretation of "examination," which is not defined in the statute. Defendants contend that "examination" means the entire investigative process prior to adjudication, including the background checks. The 120-day period has not been triggered, they argue, because plaintiffs' background checks are not complete. Plaintiffs, for their part, maintain that "examination" refers to the USCIS interview. Considerably more than 120 days elapsed after plaintiffs' interviews before they filed their complaint.
Defendants rely primarily on Danilov v. Aguirre, 370 F.Supp.2d 441 (E.D.Va. 2005) to support their interpretation of "examination."*fn2 In Danilov, the court concluded that § 1446 ("Investigation of applicants; examination of applications") describes a "process to gather information concerning the applicant," not a "single event." Id. at 443. The court reached this conclusion based upon provisions of § 1446 authorizing the examiner to issue subpoenas requiring witness testimony and document production. Id. Moreover, 8 C.F.R. § 335.2 prohibits the USCIS from scheduling an applicant's "initial examination" before the FBI provides a "definitive response" concerning the applicant's background check. Id. at 444. The Danilov ...