US attorney never responded to my lawsuit against USCIS. What are my next steps?

R

RetroPoint

New Member
Hi everyone. The adjudication (decision) of my naturalization application was unlawfully delayed after the interview. The reason specified by USCIS was "security checks". I've filed PRO SE at the federal court for my district a lawsuit against USCIS et al.
After serving the complaint by certified mail as required by law when serving government officials, I have confirmed that a US attorney had been designated to my case.

However the surprising turn of events was the 60 days allocated to the defendants to respond have expired, but the US attorney had never contacted me on the phone, nor had he served on me and the court any response or motion to dismiss.
I've read quite of bit of threads on this forum, but have never seen anyone reporting that the US attorney just chose not to respond to a lawsuit filed against USCIS.

Does it mean that the clerk of the court will now AUTOMATICALLY enter a default against the defendants? (are the conventions about this different at each US federal court?)

Or do I have to formally ask the clerk to enter a default by mailing the clerk a letter or some other document? If so, do I also need to mail a copy of this letter/document to the defendants? Do I need to mail it to the US attorney for the district?
 
You have to file for a motion for default judgement. Nothing happens automatically in the court. Every motion you file to the court also needs to be mailed via regular first class mail to the us attorney’s office. You can find templates online. It’s not a difficult motion just a one pager
 
Thanks for the reply. The reason I decided to post this question is that I have read online different opinions and explanations from different lawyers which seem to be contradictory. Maybe because each federal court has its own practices.

You said that the first step is to file a motion for default judgment.

But in the online article "Defaults and Default Judgments in the Federal Courts" (it does not let me post the link here) they explain that an entry of a default and an entry of a default judgment are two different things. To quote from the article:
The Difference Between “Default” and “Default Judgment”

The entry of a default and entry of a default judgment are two different things.

Obtaining a default judgment is a two-step process that begins with asking the clerk of the court to enter the default. This is a ministerial act of the court clerk that formally establishes that a party is in default. Once in default, a party is no longer able to answer the complaint or otherwise respond to the complaint.

The second step is asking for entry of a judgment that awards the relief sought in the complaint. This can be done in one of two ways. The party seeking the default judgment can apply to the clerk of the court for entry of a default judgment. Otherwise, the request must be made by motion to the district court judge.
Click to expand...
From your explanation, you seem to suggest going straight to the step of filing for a motion for default judgment, which means skipping over the first step which is having the court clerk enter a default (it's not clear to me if this is done automatically by the clerk, or that I have to ask for it, and how to ask for it).

Can you clarify why you think that the step of asking the clerk of the court to enter the default is not necessary?
 
Default judgment is entered under Federal rule 55 (d). It is unlikely that the judge will enter a default judgement for you against the government and Grant you citizenship outright, but the motion would help set your case in process.
www.law.cornell.edu

Rule 55. Default; Default Judgment

www.law.cornell.edu www.law.cornell.edu

Since your motion for default judgement is against the government I suggest you also include how you meet requirements for citizenship under 8 USC 316.2. Address each of the points below with exhibits (if any).


(a) General. Except as otherwise provided in this chapter, to be eligible for naturalization, an alien must establish that he or she:

(1) Is at least 18 years of age;

(2) Has been lawfully admitted as a permanent resident of the United States;

(3) Has resided continuously within the United States, as defined under §316.5, for a period of at least five years after having been lawfully admitted for permanent residence;

(4) Has been physically present in the United States for at least 30 months of the five years preceding the date of filing the application;

(5) Immediately preceding the filing of an application, or immediately preceding the examination on the application if the application was filed early pursuant to section 334(a) of the Act and the three month period falls within the required period of residence under section 316(a) or 319(a) of the Act, has resided, as defined under §316.5, for at least three months in a State or Service district having jurisdiction over the applicant's actual place of residence;

(6) Has resided continuously within the United States from the date of application for naturalization up to the time of admission to citizenship;

(7) For all relevant time periods under this paragraph, has been and continues to be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and

(8) Is not a person described in Section 314 of the Act relating to deserters of the United States Armed Forces or those persons who departed from the United States to evade military service in the United States Armed Forces.” See 8 USC § 316.2, et seq.
 
Thanks for writing again. But I think you did not fully read and understand what I was actually asking (just read it again to see that you were not at all answering my question).
You were talking about step number 2, when I was asking about step number 1.

Have you done this procedure of getting a default judgment yourself?

Also, some of the details you wrote were wrong, at least according to several courts. My court does not want to explain what they expect (they don't "give legal advice"), so I take the more strict action, just to be sure that they don't have an excuse to put a spoke in this lawsuit's wheel.

For example, communication with the defendants (which are now the defaulting party) and their attorney (in this case the US attorney) should be done by Certified Mail, not just regular first class as you wrote, because the return receipt should be filed with the court (preferably with some "proof of service" paper).

Generally I think it's a bad idea to send anything not in certified mail, because you cannot prove that you sent it and that it was received.

Also, you did not mention at all the requirement that in step number 2 (which I did not ask about, but anyway) — at least 7 days before mailing the motion for default judgment to the court, the motion (with a note explaining what it is) should be delivered to the defendant's attorney, to let them know that the motion is about to be presented to the court. If you can't prove you have done this, the court will most probably reject the motion.

For example, you can search a webpage titled "Default Judgments" that includes the following line (this site doesn't let me include links):
"Skarpinski v. Veterans of Foreign Wars, 98 N.E.2d 858, 859 (Ill. App. Ct. 1951)"
 
@RetroPoint i understood your point and I stated and linked to Federal rule 55 which you obviously didn’t read. Read section b(1) and b(2) and then section d. and you shall clearly know that the clerk can only enter judgement for a sum certain amount. You are not suing for money but asking the court to naturalize you. The clerk cannot enter this judgement. You are suing the United States (section d).
You can send the motion by certified mail as well but that’s not a requirement, it’s up to you. Check certificate of service for motions filed after the initial complaint and they all tend to say served electronically or by first class mail.
And please do not blame me for not mentioning this or that, I’m not your attorney. I’m just trying to help you. If you are not comfortable with DIY, you need to get an attorney. And yes, I sued the government myself for my citizenship
 
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Thank you for writing again. You still have not answered (is fair disclosure still in fashion in the US?) if you had ever actually done yourself this specific procedure of FORCING A DEFAULT JUDGMENT on the US government. All the signs are out there for everyone to see, that you are not at all familiar with the actual fine details of the subject matter. So if you go ghost or do not explicitly deny my assumption, I will take it as NO.

And I think you did understand very well that when I asked if you had done it yourself, I meant the specific step of FORCING A DEFAULT JUDGMENT on the government, not just suing the government and getting the process completed without having to force a default judgment (which is overwhelmingly the most common scenario).

In my understanding of the whole procedure of FORCING A DEFAULT JUDGMENT done correctly, it's about 5 (!!!) DIFFERENT letters mailed by the plaintiff, each one mailed several days apart (because delivery of each letter needs to be confirmed, before the next letter can be mailed). Some of these letters are mailed to the court, and some are mailed to the defendants' attorney (the US attorney). And those that are mailed to the US attorney MUST be mailed by certified mail, otherwise you cannot provide the court with the mandatory a proof of service.

Also, a confirmation letter from the court that confirms that the request for "Entry of Default" was executed, needs to be delivered to the plaintiff (and the US attorney), and its copy should be attached to the letter of "Motion for Default Judgment" mailed to the court (this time, to the judge), to show to the judge that an "Entry of Default" was indeed entered by the clerk for this case.

So that makes a 6-letter saga. Before the default judgment (and possibly default hearings) could eventually happen.

I think that 9 out of 10 people who would read your 2nd message on this thread, would figure that all what that is required to be done in terms of mailing documents is mailing one letter to the court. If you still think I should consider it as help, and not follow up with an attempt to correct you, then it's your right to think so. But it's pointless to argue about it. You can always get around everything with "Hey, don't blame me, I'm not your attorney" or some other temper tantrum, or just ghosting.

The devil is in the details. I don't know, and maybe you don't know either, if, in the case that a motion for default judgment is denied due to some technicality (e.g. the defendant's attorney did not get a note at least 7 days prior to the court accepting the motion) — is the plaintiff given another chance to redo "only" the 6-letter round of "forcing a default judgment" process, or is it required to file a new lawsuit? Either way, that would be quite an expensive mistake to make due to an advice from some anonymous "not an attorney", who will not even make it crystal clear how familiar they are with the process. Would you be happy to get this quality of presumptuous advice for your own legal process?

...

I have been asking since my very first message on this thread specific questions about the first step of the process, which is described in Fed. R. Civ. P. 55(a), and is called "Entering a Default".

However, you were talking about the second step of the process (that can be done only AFTER the first step is completed), which is described in Fed. R. Civ. P. 55(b) and Fed. R. Civ. P. 55(d), and is called "Entering a Default Judgment".

...

"Read section b(1) and b(2) and then section d. and you shall clearly know that the clerk can only enter judgement for a sum certain amount. "

I think that 9 out of 10 people who read this quote from you in its context, would conclude that you still seem to think that when I want the clerk to enter "something", I obviously mean that I want the clerk to enter a default judgment.

Well, no. Again (the fourth time?): I first want the clerk to enter a default. Which is not a synonym of or shorthand for "the clerk to enter a default judgment".
 
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Answer: I have no intention to ghost. No I didn’t have to file for a default judgment in my 1447b case as the US attorney responded to my case on time and I had a hearing before him and the judge where I was able to force him to compromise on some aspects. I have been a part of other lawsuits where I have forced a default judgment on the defendant. This specific defendant wasn’t the government
You can either wait for someone else to answer or do your own research on Westlaw like I did. Other option is to get an attorney.

I was just trying to help you in whichever way I can but you are going on a trip.Good luck.
 
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