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Ali A. Mohamed v. Ruth A. Dorochoff

September 22, 2011

ALI A. MOHAMED, PLAINTIFF,
v.
RUTH A. DOROCHOFF, DISTRICT DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES; ERIC H. HOLDER, JR., ATTORNEY GENERAL; JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; AND ROBERT MUELLER, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff Ali A. Mohamed has filed a complaint for declaratory and mandatory relief against Ruth A. Dorochoff , a District Director at the United States Citizenship and Immigration Services ("USCIS"); Attorney General Eric H. Holder, Jr.; Department of Homeland Security Secretary Janet Napolitano; and Federal Bureau of Investigation ("FBI") Director Robert Mueller. Plaintiff's complaint arises from an allegedly unreasonable delay in the adjudication of his naturalization application. Defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. For the reasons stated below, defendants' motion is denied as to defendants Dorochoff, Holder, and Napolitano, and granted with respect to defendant Mueller.

FACTUAL BACKGROUND*fn1

Plaintiff, a native of Somalia and resident of Chicago, was granted permanent residency in the United States on December 8, 2004. On December 21, 2009, plaintiff filed a Form N-400 Application for Naturalization ("application") with the Chicago USCIS District Office. On January 25, 2010, plaintiff provided biometrics at a USCIS application support center. Since that date, USCIS has not issued plaintiff an interview notice, requested additional evidence or information from him, or otherwise contacted plaintiff regarding his naturalization application. By congressional mandate, USCIS must receive confirmation from the FBI that a full criminal background check has been completed before USCIS can use any funds to adjudicate a naturalization application. Pub. L. No. 105-119, Title I, 111 Stat. 2448 (Nov. 26, 1997). A federal regulation promulgating that mandate provides that USCIS will interview naturalization applicants only after this full background check has been completed. 8 C.F.R. § 335.2(b) (2006). USCIS interprets a 'full criminal background check' as including: (1) an FBI name check, run against FBI investigative databases including administrative, applicant, criminal, personnel and other files; (2) an FBI fingerprint check, which provides information relating to criminal history in the United States; and (3) a check against the Interagency Border Inspection System, which contains records and information from over 20 federal law enforcement and intelligence agencies.*fn2

Once the FBI completes a name check, it forwards the results to USCIS, which determines what additional information, if any, is pertinent to the application. USCIS then performs any outstanding background and security checks it deems necessary to determine the eligibility of the applicant. USCIS does not schedule an interview with the applicant until it has completed its own background checks. In the instant case, the FBI completed plaintiff's name check on February 2, 2010. USCIS has neither completed its additional background checks on plaintiff nor scheduled his interview.*fn3

On May 17, 2010, and July 19, 2010, plaintiff attended InfoPass*fn4 appointments to inquire into the status of his case. At both of these appointments, plaintiff was notified that his case was pending and that additional review was necessary. On February 15, 2011, through congressional inquiry, plaintiff was informed that his case was pending review by a supervisory officer.

On March 8, 2011, plaintiff filed the instant action seeking relief under 28 U.S.C. § 1361, the mandamus statute; 28 U.S.C. § 2201, the Declaratory Judgment Act; and 5 U.S.C. § 702, the Administrative Procedure Act ("APA"). On June 6, 2011, defendants filed the instant motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.

DISCUSSION

I. Legal Standard

Rule 12(b)(1) motions to dismiss are premised as either facial or factual attacks on jurisdiction. Publications Int'l, Ltd. v. Leapfrog Enter., Inc., 08 C 2800, 2008 WL 5142286, at *2 (N.D. Ill. Dec. 4, 2008). Facial attacks challenge the sufficiency of the pleadings, as compared to factual challenges wherein "the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction." United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003) (emphasis in original). "If the Rule 12(b)(1) motion denies or controverts the pleader's allegations of jurisdiction, . . . the movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction." Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993). In either case, the plaintiff bears the burden of establishing that subject matter jurisdiction exists. United Phosphorus, 322 F.3d at 946.

In the instant case, defendants dispute the factual basis underlying plaintiff's assertion of subject matter jurisdiction. The Seventh Circuit instructs that different methods of review apply to facial and factual challenges to a district court's subject matter jurisdiction. See id. When presented with a facial challenge, "the court does not look beyond the allegations in the complaint, which are taken as true for purposes of the motion." Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). In contrast, when presented with a factual challenge to jurisdiction, "[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Apex Digital, 572 F.3d at 443-44. In a factual Rule 12(b)(1) motion, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. "The Court may weigh the evidence in order to satisfy itself that jurisdiction exists; as such, disputes over material facts will not preclude the court from deciding jurisdictional issues." Bd. of Trs. of Pipe Fitters' Welfare Fund Local 597 v. Adams, 97 C 5592, 1998 WL 259543, at *2 (N.D. Ill. May 7, 1998).

II. Defendants' Motion to Dismiss

Plaintiff's complaint alleges three statutory bases for this court's subject matter jurisdiction: 28 U.S.C. § 1361, 28 U.S.C. § 2201, and 5 U.S.C. § 701 et seq.*fn5 In moving to dismiss for lack of subject matter jurisdiction, defendants argue that none of these ...


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