FINDINGS AND RECOMMENDATIONS
This matter came before the court on June 27, 2008, for hearing of defendants' motion to dismiss this case pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Audrey B. Hemesath, Esq. appeared for the moving parties. No appearance was made at the hearing by or on behalf of the plaintiffs, who are proceeding pro se.
Although plaintiffs filed timely written opposition to defendants' motion, defendants did not file a reply. At the hearing, the undersigned requested clarification of defendants' argument concerning visa priority dates. On the basis of counsel's response in open court, the undersigned ordered further briefing. Supplemental briefs were filed by both sides, and defendants' motion was taken under submission at that time. Having now considered all written materials submitted in connection with defendants' motion and the entire file, the undersigned recommends that defendants' motion to dismiss be denied.
Plaintiffs Sarathy S. Amanjee, Sucheta S. Amanjee, Kritika S. Amanjee, and Nivedita S. Amanjee commenced this civil action by filing a complaint on March 5, 2008.
Plaintiff Sarathy Amanjee is the primary applicant on an I-485 Application to Adjust to Permanent Resident Status, while his wife Sucheta and daughters Kritika and Nivedita filed applications as derivative beneficiaries. Compl. at 2 & 4. Receipt notices dated July 26, 2005 reflect that plaintiffs' applications and fees were received by United States Citizenship and Immigration Services (USCIS) on July 20, 2005. Id., Ex. A. Plaintiffs completed fingerprinting processes on March 22, 2006 and again on June 12, 2007. Id. at 4, Exs. B & C.
Since the filing of their applications, plaintiffs have used two employment authorization cards and two travel parole applications granted by USCIS. Id. at 4. Starting on June 9, 2006, plaintiffs have contacted USCIS at least once a month regarding the status of their case and the reason for the delay in ruling on their applications. Id. In response to inquiries made on July 5, 2006 and October 5, 2006, plaintiffs received replies indicating that their case is pending due to FBI security checks. Id. at 4, Exs. F & G. On February 21, 2007, plaintiffs were informed by the California office of USCIS that their case was transferred to the Nebraska USCIS "in order to speed up processing." Id. at 4, Ex. D. In response to an inquiry made on April 23, 2007, plaintiffs received yet another reply indicating that the case was still pending due to FBI security checks. Id. at 4, Ex. E. Plaintiff Sarathy Amanjee sought assistance from a congressional representative by electronic mail on February 4, 2008, but was still awaiting a response on March 5, 2008, when the complaint in this action was filed. Id. at 4 & Ex. H.
Plaintiffs contend that defendants have improperly handled and delayed the processing of their applications, to plaintiffs' detriment. Plaintiffs allege that they have been unable to obtain legal permanent residence, travel and work without restrictions, and accrue time toward eligibility for naturalization as citizens of the United States. Plaintiffs have attempted to contact USCIS in order to assist in expediting name check clearances, but defendants have not set up an interview with plaintiffs at any time since the filing of the I-485 applications in 2005. Defendants' delay in adjudicating plaintiffs' applications has far exceeded the 120-day to one-year processing time contemplated by defendants' own regulations. Plaintiffs seek an order requiring defendants to properly adjudicate their applications.
Plaintiffs assert jurisdiction predicated on 28 U.S.C. §§ 1391 and 1361,*fn1 5 U.S.C. §§ 701, et seq.,*fn2 and 28 U.S.C. §§ 2201, et seq.*fn3
STANDARDS APPLICABLE TO MOTIONS UNDER RULES 12(b)(1) AND 12(b)(6)
Rule 12(b)(1) allows a party to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of a claim. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. General Tel. & Electronics, 594 F.2d 730, 733 (9th Cir. 1979). When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiff's allegations. Id. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a "speaking motion" is brought, the burden of proof is on the party asserting jurisdiction. Thornhill Publ'g Co., 594 F.2d at 733.
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a complaint. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). To state a claim upon which relief may be granted, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,, 127 S.Ct. 1955, 1974 (2007). Dismissal of a complaint, or any claim within it, pursuant to Rule 12(b)(6) "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In ruling on a Rule 12(b)(6) motion, the court accepts as true the material allegations in the complaint and construes those allegations, as well as the reasonable inferences that can be drawn from them, in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
The standards applicable to Rule 12(b)(1) and Rule 12(b)(6) motions demonstrate that the two types of motions serve different purposes and require different approaches to the pleading at issue. Although defendants request dismissal of plaintiffs' complaint pursuant to both provisions, the motion to dismiss fails to set forth or discuss the applicable standards and fails to present a separate analysis with respect to each ground for dismissal.
Defendants argue first that plaintiffs are not entitled to mandamus relief under 28 U.S.C. § 1361 because they cannot show a clear right to immediate adjudication or a clear, ministerial duty for defendants to act within any particular time frame. Defendants argue next that plaintiffs are not entitled to relief under the APA because actions committed to agency discretion are exempt from judicial review under the APA. Both of these arguments, as presented, concern ...