igor_ch said:
I was reading some cases and posts here, but could not find a clear observation on what is considered an "unreasonable delay", where an agency has the duty to act. It's kind of clear to me that while FBI namecheck is pending, USCIS has no duty to act, as doing so would be against the law.
However, FBI has a duty to act as well. Do you have any observations regarding the following:
1. Whether 1.5 years of waiting for FBI is likely to support a claim of unreasonable delay? Or it has to be over 2 years? Or what's the gudeline?
2. Are there any issues with having FBI as a defendant, given that there is no direct contact between the plaintiff and FBI? In other words, why not everybody includes FBI as a defendant?
3. Are you aware of any cases where a plaintiff would sue FBI for negligence as well? In some regard, we could say that FBI has neglected their duty of care if they did not process a namecheck request in 1 year... It's not clear what we would claim as the damages here, though.
4. Did anyone bring to the court's attention that similar numbers of the same FBI namechecks are performed for the Department Of State, and those checks are *never* delayed... See
http://www.fbi.gov/congress/congress04/garrity022504.htm ,
http://www.fbi.gov/congress/congress03/garrity071003.htm
Any insights are greatly appreciated...
Check the cases mentioned in the following part from an Opposition to a Motion to Dismiss in a lawsuit based on 1447(b) [Naturalization]:
A. If The Court Finds That It Lacks Subject Matter Jurisdiction, Plaintiff Requests Leave To Amend The Complaint To State Claims Under The Mandamus Act And The Administrative Procedures Act.
The Mandamus Act gives federal District Courts original jurisdiction "over any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff" 28 U.S.C. § 1361. Likewise, the Administrative Procedures Act ("APA"), at 5 U.S.C. § 701, et seq., in combination with 28 U.S.C. § 1331, provides federal district courts with the jurisdiction to "compel agency action unlawfully withheld or unreasonably delayed". Hu v. Reno, Case No. 3-99-CV-1136-BD, 2000 WL 425174 (N.D. Tex. Apr. 8, 2000). As discussed above USCIS has a non-discretionary duty to adjudicate Plaintiff’s N-400 naturalization application within a reasonable time. See Alkenani v. Barrows, 356 F. Supp. 2d at 656, 657 (N.D. Tex. 2005). This reasonable time for the instant case is clearly defined in 8 U.S.C. § 1447(b) as being 120 days. More than two years passed since Plaintiff was examined by USCIS. This is 6 times more than the statute-prescribed 120 days. Other courts have held that, when USCIS fails to make a determination of a timely filed petition within a reasonable period of time, subject matter jurisdiction exists under the Mandamus Act or the APA. See Elkhatib v. Bulter, No. 04-22407, 2005 US Dist. Lexis 22858 (S.D. Fla. June 6, 2005); Paunescu v. INS, 76 F. Supp.2d at 901 (N.D. Ill, 1999); Yu v. Brown, 36 F. Supp. 2d 922, 925 (D.N.M. 1999); Agbemaple v. INS, No. 97-8547, 1998 WL 292441 (N .D. Ill. May 18, 1998) (“a contrary position would permit INS to delay indefinitely”), Iddir v. INS, 301 F 3d, 492, 500 (7th Cir., 2002) (“the relevant statues and regulations confirm that the INS did have the duty to adjudicate the appellants’ applications in a reasonable period of time”); Abdel Razik v. Perryman, No 2-CV-05189 (N.D. Ill. Aug. 6, 2003).
Furthermore, 8 U.S.C. § 1571(b) clearly lays down the parameters of reasonableness in immigration adjudications, stating:
“…It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.”
USCIS, a Government agency and one of the Defendants, is attempting to justify its inaction in connection with Plaintiff’s N-400 applications by reference to the inaction of another Government agency, FBI, the other Defendant in this case. This circular reasoning fails to acknowledge the Government’s statutory obligations to timely adjudicate timely filed applications. 8 U.S.C. § 1447(b) (120 days after naturalization interviews).
“When Congress by organic statute sets a specific deadline for agency action, neither the agency nor any court has discretion. The agency must act by the deadline. If it withholds such timely action, a reviewing court must compel the action unlawfully withheld. To hold otherwise would be an affront to our tradition of legislative supremacy and constitutionally separated powers.” Forest Guardians v. Babbitt, 164 F.3d 1261, 1272 (10th Cir. 1998).
In Alkenani v. Barrows, 356 F. Supp. 2d at 656, 657 (N.D. Tex. 2005), the judge said:
" However, the court is not convinced that the 15-month delay in deciding petitioner's appeal is unreasonable under the unique circumstances of this case. "
In a footnote the judge added:
Without deciding how long of a delay may be "too long" the court notes that decisions from other jurisdictions suggest that delays approximating two years may be unreasonable. See, e.g., Paunescu v. INS, 76 F. Supp.2d at 901 (N.D. Ill, 1999) (2 year delay); Yu v. Brown, 36 F. Supp. 2d 922, 925 (D.N.M. 1999) (2.5 year delay); Agbemaple v. INS, No. 97-8547, 1998 WL 292441 (N .D. Ill. May 18, 1998) (20 month delay).
To answer punctually your questions:
1. 1.5 year delay may be borderline. Two years in view what the judge in the above mentioned decision wrote, would have a higher chance to be considered unreasonable. To the best of my knowledge, there is no guideline defined in statutes or regulations what can be considered unreasoonable delay, in general.
2. I don't know, why not anybody is including FBI as defendant. In my opinion, they should be the main defendants (of course, there is no such thing that "main" and "secondary" defendant), because these cases are stalled due to FBI's inaction on the name check. People who didn't include them, reasoned like you did in the first part of your question 2. I saw a case when the judge basically said: you didn't include FBI in your list of defendants, sorry, but I can't compel them to process your name check.
3. I think that you should be happy if due to your complaint, you manage to get your name check done. I would not try to sue them for negligence and claim damages and try to get some award due to this. But to answer the question, I'm not aware of any case where Plaintiff tried this. And I personally think that it is really easy to defend this claim. There is no statue prescribed time limit to perform the name check. They will pull the necessity of careful checking everybody because 9/11 and no judge would accept that they were negligent by looking long and well to your background. Let's be realistic...
4. I have no knowledge about this.
