Metropolitan News-Enterprise


Tuesday, November 27, 2018


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Reassertion of Previously Rejected Stance Is Not Apt to Find Favor—Ninth Circuit


By a MetNews Staff Writer


The Ninth Circuit Court of Appeals has affirmed a summary judgment in favor of the United States Citizenship and Immigration Services in an action alleging a pattern and practice of delaying its responses to Freedom of Information Act requests, declaring that the lawyer pursuing the action merely put forth, a second time, evidence the appeals court said in an earlier opinion was inadequate.

Friday’s memorandum opinion declares:

“Whatever salience the adage ‘if at first you don’t succeed—try, try again’ has in daily life, expecting identical arguments to yield different results is a poor strategy for success in our court.”

The panel rendering Friday’s decision was comprised of Chief Judge Sidney R. Thomas, Circuit Judge Milan D. Smith Jr., and Elaine E. Bucklo, a United States District Court judge of the Northern District of Illinois, sitting by designation.

Earlier Opinion

The majority opinion in Hajro v. U.S. Citizenship and Immigration Services, rendered in 2015 and amended Jan. 19, 2016, was authored by Circuit Judge Richard C. Tallman (now on senior status) and was joined in by District Court Judge Stephen Joseph Murphy III of the Eastern District of Michigan, sitting by designation. Circuit Judge Johnnie B. Rawlinson wrote a concurring and dissenting opinion.

There, the panel dealt with an appeal by United States Citizenship and Immigration Services (“USCIS”) from a summary judgment in favor of appellees Mirsad Hajro—the plaintiff in the case—and James R. Mayock, his lawyer. It found triable issues of fact with respect to the claimed persistent practice of USCIS to abide by its obligation under the Freedom of Information Act (“FOIA”) to either determine within 20 days whether it will provide the information that is sought or set forth the “unusual circumstances” that require it to take longer.

Mayock, a immigration law specialist, routinely made FOIA requests for his clients’ alien registration files so he could determine the bases for determinations. A request was made for such records in the case of Hajro, whose application for citizenship had been denied.

Three Requirements

Tallman’s opinion sets forth:

“[W]here a plaintiff alleges a pattern or practice of FOIA violations and seeks declaratory or injunctive relief, regardless of whether his specific FOIA requests have been mooted, the plaintiff has shown injury in fact if he demonstrates the three following prongs: (1) the agency’s FOIA violation was not merely an isolated incident, (2) the plaintiff was personally harmed by the alleged policy, and (3) the plaintiff himself has a sufficient likelihood of future harm by the policy or practice.”

Hajro could not maintain a cause of action based on the alleged pattern and practice of delaying responses, the three panelists agreed, because while the case was on appeal, he had gained citizenship and therefore could not show future harm.

Tallman wrote that “if Mayock can show that he personally filed and signed a request, he is a requester for the purposes of FOIA” and “[t]o be injured under FOIA, Mayock does not need to have a personal connection to the information he is requesting.”

Rawlinson disagreed that Mayock could establish standing, declaring:

“Mayock simply failed to allege any individual harm to him other than indirectly through harm to his clients.”

On remand, Magistrate Judge Nathanael M. Cousins of the Northern District of California held that Mayock failed to establish standing and denied a motion to substitute other clients for Hajro.

Panel Affirms

The memorandum opinion affirming Cousins says:

“Because Mayock failed to submit evidence demonstrating that he had submitted a FOIA request when Plaintiffs’ complaint or amended complaint were filed, he did not show that he was personally harmed by USCIS’s alleged FOIA violations.”

It adds:

“Appellants’ argument does more to hurt than help their cause. They contend that Mayock’s declaration, which ‘confirm[s] that Mayock has filed FOIA requests and that USCIS has never produced the records within the statutory time framework,’ demonstrates that Mayock was personally harmed. That declaration, however, is the same declaration that the prior panel rejected as ‘insufficient’ to confer standing on Mayock.”

Amendment Disallowed

On remand, Mayock and Hajro sought to file a second amended complaint (“SAC”) that would have added class allegations. Leave to file the new pleading was denied, as was the request to substitute other plaintiffs for Hajro.

On appeal, they argued that substitution of plaintiffs should have been permitted, pointing to cases recognizing such a procedure in class actions. The opinion responds:

“The operative complaint is on behalf of Hajro and Mayock. Although Appellants’ SAC sought to turn the action into a class action, that effort came too late. When Appellants filed their SAC. neither Hajro nor Mayock had standing to bring any claims. The district court could not grant any motions brought by plaintiffs who lacked a legally cognizable interest in the relief they were seeking: it was required to deny Appellants’ SAC and dismiss the claim.”

The case is Hajro v. U.S. Citizenship and Immigration Services, 17-15984.


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