Free Joint Case Management Statement - District Court of California - California

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CECILLIA D. WANG (CA Bar No. 187782) LUCAS GUTTENTAG (CA Bar No. 90208) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 Email: [email protected] Attorneys for Plaintiffs *Additional counsel listed on following page

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ALIA AHMADI, VLADIMIR MIKULICIC, IGOR OVCHINNIKOV, BILJANA PETROVIC, SERGEI SAPOZHNIKOV, EIMAN TAKY and YAN WANG, Case No. 07-CV-3455-WHA Plaintiffs-Petitioners, v. MICHAEL CHERTOFF, U.S. Secretary of Homeland Security; ROBERT S. MUELLER III, Director of the Federal Bureau of Investigation; PETER KEISLER, Acting Attorney General of the United States; EMILIO T. GONZALEZ, Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services; DAVID STILL, District Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services, San Francisco District, Defendants-Respondents. JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER Date: October 11, 2007 Time: 11:00 a.m. Courtroom: 9 Judge: Hon. William H. Alsup

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Additional Plaintiffs' counsel: JULIA HARUMI MASS (CA Bar No. 189649) ALAN L. SCHLOSSER (CA Bar No. 49957) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 SIN YEN LING JOREN LYONS (CA Bar No. 203403) ASIAN LAW CAUCUS 939 Market Street, Suite 201 San Francisco, CA 94103 Telephone: (415) 896-1701 Facsimile: (415) 896-1702 TODD GALLINGER (CA Bar No. 238666), Of Counsel COUNCIL ON AMERICAN-ISLAMIC RELATIONS (CAIR) ­ SAN FRANCISCO BAY AREA 3000 Scott Boulevard, Suite 212 Santa Clara, CA 95054 Telephone: (408) 986-9874 Facsimile: (408) 986-9875 Counsel for Defendants: SCOTT N. SCHOOLS (SC Bar No. 9990) United States Attorney JOANN W. SWANSON (CA Bar No. 88143) Chief, Civil Division EDWARD A. OLSEN (CA Bar No. 214150) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102 Telephone: (415) 436-6915 Facsimile: (415) 436-6927 PETER D. KEISLER United States Department of Justice Acting Attorney General ELIZABETH J. STEVENS Senior Litigation Counsel, Office of Immigration Litigation JEFFREY S. ROBINS Trial Attorney, Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 616-1246 Facsimile: (202) 307-8801

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The parties to the above-captioned action submit this Joint Case Management Statement pursuant to the Court's Order Setting Initial Case Management Conference and ADR Deadlines dated July 2, 2007. a. Jurisdiction and service Plaintiffs contend that the Court has subject matter jurisdiction over this matter pursuant to 8 U.S.C. § 1447(b) (district court jurisdiction to adjudicate delayed naturalization applications), 28 U.S.C. § 1331 (federal question), and 28 U.S.C. §§ 2201 and 2202 (declaratory relief). Defendants contend that the Court does not have jurisdiction over Plaintiffs' individual claims under 8 U.S.C. § 1447(b) because the completion of an FBI name check is a prerequisite to USCIS's adjudication of a naturalization application, and that the remaining claims fail to state claims upon which relief may be granted as a matter of law. The parties agree that venue is proper in this District pursuant to 28 U.S.C. § 1391(e). The parties agree that service of the First Amended Complaint was completed on August 10, 2007. b. Facts and Legal Issues The parties have prepared their respective statements setting forth the factual and legal contentions, set forth below. 1. Plaintiffs' claims

Plaintiffs are all long-time green card holders who have made this nation their permanent home and seek to pledge their allegiance to the United States as citizens. Each Plaintiff meets all statutory requirements for naturalization, but has been awaiting adjudication for more than 120 days since passing all criminal record checks and the naturalization interview. Defendants are responsible for the prolonged delay in processing Plaintiffs' naturalization applications, because of their policy, pattern and practice of requiring "FBI name checks," failing to set reasonable time limits for the processing of those name checks, and failing to adjudicate naturalization applications in a 3
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reasonably timely manner. Defendants' conduct violates an immigration regulation, 8 C.F.R. § 335.3, which provides that all naturalization applications "shall be made at the time of the initial examination or within 120-days after the date of the initial examination," and is contrary to Congress's expressed intent that applications for immigration benefits should be adjudicated within 180 days, 8 U.S.C. § 1571. As a result of these extraordinary delays ­ which have in fact exceeded two years for each of the named Plaintiffs ­ they are unable to participate fully in U.S. civic society and also are unable to engage in certain contractual relationships with the U.S. government, to travel abroad pursuant to the Visa Waiver Program, to petition for visas for their spouses, children and parents, and to enjoy other privileges and rights of U.S. citizenship. Plaintiffs contend that the Defendants' policies and practices of long-term naturalization delays are unlawful under the Administrative Procedures Act and the Due Process Clause and bring this action against officials of the U.S. Department of Homeland Security; U.S. Citizenship and Immigration Services ("CIS"), the sub-unit of the Department of Homeland Security responsible for naturalization; the Federal Bureau of Investigation ("FBI"), which is responsible for the "name checks" that are causing the naturalization delays, and Attorney General Alberto Gonzales, who has ultimate responsibility for the FBI. Plaintiffs individually seek naturalization by the Court pursuant to 8 U.S.C. § 1447(b), which provides that a district court may adjudicate an application for naturalization if the immigration agency has failed to act within 120 days of the preliminary examination on an naturalization application. Plaintiffs represent a putative class of other lawful permanent residents who are similarly situated and similarly affected by systemic delays in the naturalization process. On behalf of the class, Plaintiffs seek injunctive and declaratory relief from the Defendants' policies and practices causing prolonged delays in naturalization. Plaintiffs bring their causes of action for declaratory and injunctive relief under the Administrative Procedures Act, 5 U.S.C. §§ 555 and 706 (for unreasonable delays); 5 U.S.C. § 553 (for failure to provide notice and opportunity 4
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for public comment prior to promulgating the "FBI name check"); and the Due Process Clause of the Fifth Amendment. 2. Defendants' claims and defenses

Defendants have moved to dismiss the FAC under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants contend that the Court lacks subject matter jurisdiction over Plaintiffs' individual claims for naturalization under 8 U.S.C. § 1447(b) because completion of an FBI name check is a prerequisite to USCIS's adjudication of a naturalization application. Defendants argue, in the alternative, that Plaintiffs' individual claims should be remanded to CIS for adjudication and that, should the Court not remand the individual claims, the claims are misjoined and should be severed. Defendants also contend that Plaintiffs have failed to state a claim for relief under the Administrative Procedures Act ("APA") on the grounds that there is an adequate remedy at law provided by Congress, that APA review is not available because there is no "final agency action" at issue, that the APA does not permit judicial review because Defendants are not legally required to act, and that, in the alternative, Defendants' procedures are not unreasonable, given limited agency resources and the fact that approximately 90% of all naturalization applications are adjudicated within six months of the filing date of the application, and that approximately 90% of all requests by USCIS to the FBI for name checks are completed within two months. Defendants contend that Plaintiffs have failed to state a claim under the APA for failure to comply with notice-and-comment requirements because the name check process is an interpretive rule that is not subject to those requirements. Defendants contend that the Court should dismiss the claim for injunctive relief because Plaintiffs have shown neither irreparable injury nor inadequate remedies at law. Finally, Defendants contend that Plaintiffs' claim under the Due Process Clause should be dismissed because they do not have a protected liberty or property interest. c. Summary of proceedings to date On July 2, 2007, Plaintiffs filed their original Complaint for Declaratory and 5
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Injunctive Relief and Petition for Naturalization Pursuant to 8 U.S.C. § 1447(b). Plaintiffs Ahmadi and Wang previously raised their claims in Zhang, et al. v. Still, et al., No. 07-CV-503-SBA, but voluntarily dismissed their claims in the Zhang matter pursuant to Federal Rule of Civil Procedure 41(a)(1) due to a conflict between them and the lead plaintiff, Mr. Zhang. Upon filing the complaint in this matter, Plaintiffs notified this Court of the Zhang matter through a Notice of Related Case and Amended Notice of Related Case. Plaintiffs also filed an Administrative Motion to Consider Whether Cases Should Be Related Pursuant to Local Rule 3-12 and 7-11 in the Zhang matter before Judge Armstrong. Judge Armstrong dismissed Mr. Zhang's case for failure to prosecute on September 5, 2007. On August 10, 2007, Plaintiffs filed a First Amended Complaint in this matter. On August 10, 2007, the parties filed a Stipulation of Dismissal of Claims of Plaintiffs Miao Ling Huang and Fu Zhong. The Court approved the parties' stipulation on October 2, 2007. On September 17, 2007, the parties met and conferred on this Joint Case Management Statement, ADR procedures, discovery and disclosures. The parties are currently meeting and conferring about a possible resolution of the individual 1447(b) claims of Plaintiffs Vladimir Mikulicic, Biljana Petrovic, Eiman Taky and Yan Wang. There are two pending motions in this case, as set forth in the next section. d. Pending motions Defendants filed a Motion to Dismiss on August 31, 2007, currently set for hearing on October 11, 2007. Defendants submitted evidence in the form of declarations in support of their Motion to Dismiss. Defendants contend that such evidence is in support of their motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1). Plaintiffs will object to the Court's consideration of such extrinsic evidence for purposes of Defendants' Motion to Dismiss. In the event that the Court chooses to consider such extrinsic evidence, Plaintiffs contend that the motion should be treated as a motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(b) ("If, on 6
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a motion [under Rule 12(b)(6)], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56"). In that event, Plaintiffs would request time to complete discovery and to provide additional briefing and/or evidence in opposition to Defendants' motion. Plaintiffs filed a Motion for Class Certification on September 5, 2007. Defendants filed an ex parte application for additional time to file an opposition to the Motion for Class Certification, which this Court granted in part and denied in part. The Motion for Class Certification will be heard by the Court on November 8, 2007. e. Major motions anticipated before trial In addition to the pending motion to dismiss and motion for class certification, the parties anticipate the following motions. Defendants intend to request at the Case Management Conference that the Court stay discovery and disclosures during the pendency of the motion to dismiss and/or the final decision of plaintiffs on the parameters of their complaint. In the event the Court elects to consider evidence submitted in support of Defendants' motion to dismiss, Plaintiffs will seek a continuance of the hearing on the motion to dismiss, request that the motion be treated as a motion for summary judgment, and oppose Defendants' request for a stay of discovery in order to be given an opportunity to discover and present material pertinent to a summary judgment motion. The parties anticipate that they will file motions for summary judgment. f. Additional parties Counsel do not anticipate adding parties. However, Plaintiffs would file an amended complaint to add named plaintiffs if Defendants were to naturalize all present named plaintiffs and if Defendants were to take the position that this matter therefore should be dismissed as moot. g. Anticipated hearings 7
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There are presently two hearings already scheduled in this matter on Defendants' Motion to Dismiss and Plaintiffs' Motion for Class Certification. Defendants object to discovery and disclosures during the pendency of their motion to dismiss, and the parties anticipate that a hearing on Defendants' objections may be necessary. The parties also anticipate that there will be a need for a hearing on any motions for summary judgment to be filed. h. Evidence preservation The parties have complied with the Court's direction to take affirmative steps to preserve evidence related to this action including, without limitation, interdiction of document destruction programs and any ongoing erasures of emails, voice mails, and other electronically recorded material. i. Stipulated discovery limits The parties have not stipulated to any discovery limits different from those set forth in the Federal Rules of Civil Procedure. Defendants hereby object to proceeding with Rule 26(a) disclosures and discovery prior to a decision on the Motion to Dismiss, and Defendants will raise their objection at the Case Management Conference. Defendants believe that a protective order is necessary in order to conduct discovery in compliance with Privacy Act obligations and possibly obligations under the Immigration and Nationality Act and to protect law enforcement interests. The parties intend to propose the necessary protective orders by stipulation if possible. As to claims against Defendant Robert S. Mueller III and relating to the Federal Bureau of Investigation, Defendants will take the position that discovery should be limited to the Certified Administrative Record. Plaintiffs will oppose that position. j. Proposed deadlines and court dates The parties propose the following schedule: Last day for Defendants to file Reply in support of Motion to Dismiss Hearing on Defendants' Motion to 8
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September 27, 2007 October 11, 2007

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Dismiss; Initial Case Management Conference Last day for Defendants to file Opposition to Plaintiffs' Motion for Class Certification Last day for Plaintiffs to file Reply in support of Motion for Class Certification Hearing on Plaintiffs' Motion for Class Certification Non-expert discovery cut-off1 Deadline for expert witness disclosures Expert discovery cut-off Last day to file motions for summary judgment Last day to file oppositions to motions for summary judgment Last day to file reply memoranda re motions for summary judgment Hearing on motions for summary judgment Last day to serve motions in limine Last day to serve oppositions to motions in limine Last day to file motions in limine; last day to file joint proposed final pretrial order Pretrial conference Trial date k. Jury demand There is no jury demand in this case. l. Relief sought

October 18, 2007 October 25, 2007 November 8, 2007 March 17, 2008 April 18, 2008 June 2, 2008 July 17, 2008 July 31, 2008 August 7, 2008 August 21, 2008 August 26, 2008 September 5, 2008 September 9, 2008 September 15, 2008 September 22, 2008

Each of the named Plaintiffs seeks naturalization by the Court pursuant to 8 U.S.C. § 1447(b). The named Plaintiffs also request that the Court certify a class and grant declaratory and injunctive relief from Defendants' violations of the APA and Due Process Clause as follows: (1) Order Defendants to promptly adjudicate, in a time period not to exceed 90 days,

The parties agree to this discovery cut-off date assuming that discovery commences immediately and is not stayed. In the event that discovery is stayed, the parties believe that a 9
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the currently pending applications for naturalization of all members of the proposed class; Order Defendants to adjudicate, within a reasonable time period not to exceed 180 days from the date of the application date, all applications for naturalization that shall be submitted in the future; Order that any name checks Defendants choose to conduct shall be completed in a manner that does not delay adjudication of naturalization applications beyond 180 days from the date the application is received by CIS; Order Defendants to adopt a procedure for identifying naturalization cases awaiting final adjudication based solely on FBI name checks, and for identifying naturalization cases awaiting final adjudication for more than 120 days after successful completion of the naturalization examination, or 180 days from the date CIS receives the naturalization application; Issue a declaratory judgment holding unlawful: (a) the failure of Defendants Still, Emilio Gonzalez and Chertoff to adjudicate applications for naturalization within 180 days of the date of the naturalization application is received by CIS; (b) The failure of Defendants Alberto Gonzales and Mueller to complete FBI name checks within a reasonable time; and (c) Defendants' failures to take all necessary steps to adjudicate applications for naturalization within 180 days of receipt by CIS. Award reasonable attorney fees and costs pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412; and Grant any and all further relief this Court deems just and proper.

m. Alternative Dispute Resolution The parties have filed an ADR Certification and Notice of Need for ADR Phone Conference and are considering ADR options. n. Assignment to magistrate judge later discovery cut-off date would be appropriate. 10
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The parties do not consent to assignment of this matter to a magistrate judge. o. Service list for all counsel Following is a service list and contact information for all counsel: Plaintiffs' counsel: Cecillia D. Wang ([email protected]) Lucas Guttentag ([email protected]) ACLU Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 Julia Harumi Mass ([email protected]) Alan L. Schlosser ([email protected]) 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 Sin Yen Ling ([email protected]) Joren Lyons ([email protected]) 939 Market Street, Suite 201 San Francisco, CA 94103 Telephone: (415) 896-1701 Facsimile: (415) 896-1702 Todd Gallinger ([email protected]) c/o Coalition on American-Islamic Relations of the San Francisco Bay Area 3000 Scott Boulevard, Suite 212 Santa Clara, CA 95054 Telephone: (408) 986-9874 Facsimile: (408) 986-9875 Defendants' counsel: Scott N. Schools Joann M. Swanson Edward A. Olsen ([email protected]) United States Attorney's Office 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102 Telephone: (415) 436-6915 Facsimile: (415) 436-6927 Peter D. Keisler Elizabeth J. Stevens ([email protected]) Jeffrey S. Robins ([email protected]) U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 11
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Telephone: (202) 616-1246 Facsimile: (202) 307-8801

Dated: October 4, 2007

Respectfully submitted, CECILLIA D. WANG LUCAS GUTTENTAG AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 JULIA HARUMI MASS ALAN L. SCHLOSSER AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 SIN YEN LING JOREN LYONS ASIAN LAW CAUCUS 939 Market Street, Suite 201 San Francisco, CA 94103 TODD GALLINGER Of Counsel COUNCIL ON AMERICAN-ISLAMIC RELATIONS (CAIR) ­ SAN FRANCISCO BAY AREA 3000 Scott Boulevard, Suite 212 Santa Clara, CA 95054 By: _______/s/_________________________ CECILLIA D. WANG Attorneys for Plaintiffs

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Dated: October 4, 2007

SCOTT N. SCHOOLS United States Attorney JOANN W. SWANSON Chief, Civil Division EDWARD A. OLSEN Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102 PETER D. KEISLER United States Department of Justice Acting Attorney General ELIZABETH J. STEVENS Senior Litigation Counsel, Office of Immigration Litigation JEFFREY S. ROBINS Trial Attorney, Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 By: _______/s/_________________________ JEFFREY S. ROBINS Attorneys for Defendants

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ORDER The Joint Case Management Statement is hereby adopted by the Court as a Case Management Order for this matter. The parties are ordered to comply with this Order. SO ORDERED. Dated: October ____, 2007 _______________________________________ HON. WILLIAM H. ALSUP UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE I, Cecillia D. Wang, declare as follows: I hereby certify that today I electronically filed the foregoing JOINT CASE MANAGEMENT STATEMENT with the Clerk of the Court using the ECF system, which will send notification of such filing to the following email addresses: Alan Lawrence Schlosser American Civil Liberties Union Foundation of Northern California Joren Lyons Asian Law Caucus Lucas Guttentag American Civil Liberties Union Immigrants' Rights Project Julia Harumi Mass American Civil Liberties Union Foundation of Northern California Edward A. Olsen United States Attorney's Office Elizabeth J. Stevens United States Department of Justice Jeffrey S. Robins United States Department of Justice Via ECF at [email protected] Via ECF at [email protected] Via ECF at [email protected] Via ECF at [email protected] Via ECF at [email protected] Via ECF at [email protected] Via ECF at [email protected]

In addition, I hereby certify that on this 4th day of October 2007, true and correct copies of the JOINT CASE MANAGEMENT STATEMENT were served by U.S. Mail on the following non-ECF filers: Sin Yen Ling Todd Gallinger Asian Law Caucus Council on American-Islamic Relations 939 Market Street, Suite 201 3000 Scott Boulevard, Suite 212 San Francisco, CA 94103 Santa Clara, CA 95054 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. /// ///

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Dated: October 4, 2007 San Francisco, California _________/s/______________ CECILLIA D. WANG

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