Mirsad Hajro v. Uscis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIRSAD HAJRO; JAMES R. MAYOCK, No. 11-17948

Plaintiffs-Appellees,

D.C. No.

v. 5:08-cv-01350-

PSG

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES; T. DIANE

CEJKA, Director, USCIS National OPINION

Records Center; ROSEMARY

MELVILLE, USCIS District Director

of San Francisco; JEH JOHNSON,

Secretary, Department of Homeland

Security*; LORETTA E. LYNCH,

Attorney General,

Defendants-Appellants.

MIRSAD HAJRO; JAMES R. MAYOCK, No. 12-17765

Plaintiffs-Appellees,

v. D.C. No.

5:08-cv-01350-

UNITED STATES CITIZENSHIP AND PSG

IMMIGRATION SERVICES; T. DIANE

CEJKA, Director, USCIS National

Records Center; ROSEMARY

MELVILLE, USCIS District Director

of San Francisco; JEH JOHNSON,

2 HAJRO V. USCIS

Secretary, Department of Homeland

Security; LORETTA E. LYNCH,

Attorney General,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of California

Paul S. Grewal, Magistrate Judge, Presiding

Argued and Submitted

February 3, 2015–San Francisco, California

Filed October 23, 2015

Before: Richard C. Tallman and Johnnie B. Rawlinson,

Circuit Judges, and Stephen Joseph Murphy, District

Judge.**

Opinion by Judge Tallman;

Partial Concurrence and Partial Dissent by Judge

Rawlinson

*

Jeh Johnson is substituted for Michael Chertoff as Secretary,

Department of Homeland Security and Loretta E. Lynch is substituted for

Eric H. Holder, Jr., as Attorney General. Fed. R. App. P. 43(c)(2).

**

The Honorable Stephen Joseph Murphy III, United States District

Judge for the Eastern District of Michigan, sitting by designation.

HAJRO V. USCIS 3

SUMMARY***

Freedom of Information Act

The panel vacated the district court’s permanent

injunction; reversed the district court’s summary judgment

order; vacated the attorneys’ fees award; and remanded for

further proceedings in a Freedom of Information Act action

brought against the United States Citizenship and

Immigration Services (“USCIS”) by permanent resident

Misrad Hajro and his attorney James Mayock.

The district court found that USCIS engaged in a pattern

or practice of violating the Freedom of Information Act’s

time limits, and entered summary judgment in favor of the

plaintiffs. The USCIS challenged the district court’s

jurisdiction to enforce a 1992 Settlement Agreement entered

into by Mayock and USCIS’s predecessor agency, the

Immigration and Naturalization Service, concerning

processing of FOIA requests. The district court entered the

summary judgment order, USCIS filed its notice of appeal,

and then the district court entered a permanent injunction.

The panel held that this court had jurisdiction to review

the summary judgment order, but dismissed USCIS’s

challenge to the scope of the permanent injunction order for

lack of jurisdiction under Fed. R. App. P. 4(a)(2).

Reviewing the summary judgment order, the panel held

that the jurisdictional rule announced in Kokkonen v.

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 HAJRO V. USCIS

Guardian Life Ins. Co., 511 U.S. 375 (1994) (holding that if

a district court wished to retain jurisdiction to later enforce

the terms of a settlement agreement, the order dismissing a

case with prejudice must incorporate the terms of the

settlement agreement or expressly retain jurisdiction), applied

retroactively to the 1992 Settlement Agreement. The panel

held that because Kokkonen applied retroactively and the

1992 district court order did not retain jurisdiction over the

prior lawsuit’s Settlement Agreement, the district court did

not have the inherent power to enforce the terms of the

Settlement Agreement. The panel also held that while the

district court may assert supplemental jurisdiction over the

Settlement Agreement claims, plaintiffs failed to show an

“unequivocally expressed” waiver of sovereign immunity.

The panel therefore reversed summary judgment in favor of

plaintiffs as to Claims One and Two.

The panel held that the factual record was not sufficiently

developed to determine whether plaintiff Mayock had

standing to bring a FOIA pattern or practice claim. The panel

also held that plaintiff Hajro lost standing to bring a pattern

or practice claim during the pendency of this appeal when he

was granted his citizenship, because the probability that

USCIS’s delays would impair Hajro’s lawful access to

information in the future was now remote. The panel,

therefore, reversed and remanded for further fact finding as

to Mayock’s standing and dismissed Hajro’s claim as moot.

Judge Rawlinson concurred in part and dissented in part.

Judge Rawlinson agreed with the majority except as to the

issue of Mayock’s standing. Judge Rawlinson would reverse

the district court’s ruling that Mayock had standing to pursue

an action in his own right, and remand for dismissal of all

claims.

HAJRO V. USCIS 5

COUNSEL

Mark W. Pennak (argued), Appellate Staff Attorney; Leonard

Schaitman, Assistant Director; Melinda Haag, United States

Attorney; Stuart F. Delery, Assistant Attorney General,

Department of Justice, Washington, D.C.; Ila C. Deiss,

Assistant United States Attorney, San Francisco, California,

for Defendants-Appellants.

Kip Evan Steinberg (argued), San Rafael, California; Robert

H. Gibbs and Robert Pauw, Gibbs Houston Pauw, Seattle,

Washington, for Plaintiffs-Appellees.

Russell Abrutyn, Marshal E. Hyman & Associates, Troy,

Michigan; Aaron C. Hall, Joseph Law Firm, P.C., Aurora,

Colorado, for Amicus Curiae American Immigration Lawyers

Association.

OPINION

TALLMAN, Circuit Judge:

United States Citizenship and Immigration Services and

federal officer co-defendants (collectively “USCIS”)

challenge the district court’s grant of summary judgment, a

permanent injunction, and an attorneys’ fees award in favor

of Plaintiffs Mirsad Hajro and James R. Mayock. The district

court found that USCIS engaged in a pattern or practice of

violating the Freedom of Information Act’s (“FOIA”) time

limits, 5 U.S.C. § 552(a)(6)(A), (B), (C) (2012). The

statutory time limits require an agency to determine within

twenty days whether to comply with a FOIA request or, in the

alternative, notify the requester of any “unusual

6 HAJRO V. USCIS

circumstances” requiring an extension in responding to the

request. See 5 U.S.C. § 552(a)(6)(A), (B). If the agency fails

to comply with either, a FOIA requester can proceed directly

to district court where the agency must show “exceptional

circumstances” justifying its untimeliness and due diligence

in remedying the violation. See 5 U.S.C. § 552(a)(6)(C).

USCIS also challenges the district court’s jurisdiction to

enforce a 1992 Settlement Agreement entered into by

attorney James Mayock and USCIS’s predecessor agency, the

Immigration and Naturalization Service (“INS”).

We have jurisdiction under 28 U.S.C. § 1291 to review

the summary judgment order. We dismiss USCIS’s challenge

to the permanent injunction for lack of jurisdiction given its

prematurely filed notice of appeal. We hold that while the

district court may assert supplemental jurisdiction over the

Settlement Agreement claims, Plaintiffs have failed to show

an “unequivocally expressed” waiver of sovereign immunity.

We clarify the standing requirements to assert a FOIA pattern

or practice claim. As such, we vacate the injunction and

remand with instructions to conduct further proceedings on an

open record to determine in the first instance whether

Mayock has standing to bring a pattern or practice claim

under this standard. We also find Hajro’s pattern or practice

claim moot. Therefore, the summary judgment order is

reversed and remanded. We vacate and remand the attorneys’

fees award for further consideration in light of this opinion.

I

A

James Mayock has been an immigration attorney for over

thirty years. As part of Mayock’s ongoing immigration

HAJRO V. USCIS 7

caseload, he files requests under FOIA to obtain the alien

registration files for his clients. Mayock’s declaration states

that USCIS has never produced the requested records within

FOIA’s statutory twenty-day time limit. See 5 U.S.C.

§ 552(a)(6)(A). Nor has the government provided written

notice setting forth any “unusual circumstances” for an

extension of time beyond the statutory limit. See 5 U.S.C.

§ 552(a)(6)(B). In support of his pattern or practice claim,

Mayock provided a recent FOIA response addressed to

another attorney at Mayock’s law firm. USCIS responded

almost eight months after the initial request was placed.

Mayock also provided declarations from twenty-six other

immigration attorneys who have encountered similar, routine

delays. All twenty-six attorneys included copies of their own

delayed FOIA requests from recent years. USCIS did not

rebut this evidence before the district court. Hajro v. U.S.

Citizenship & Immigration Servs. (“Hajro I”), 832 F. Supp.

2d 1095, 1105 (N.D. Cal. 2011).

In addition to the present lawsuit, Mayock previously

filed a lawsuit against the INS, USCIS’s predecessor agency,

about twenty-five years ago. Mayock similarly alleged that

INS had a pattern or practice of violating various provisions

of FOIA. Mayock, together with other immigration

attorneys, submitted declarations to demonstrate that INS

often took months to respond to FOIA requests, far in excess

of the statutory time limit, then ten days. See 5 U.S.C.

§ 552(a)(6)(i) (1988). The district court agreed and granted

summary judgment in favor of Mayock, directing INS to

issue the appropriate notices for extension of time required by

FOIA and enjoining the San Francisco District Office of the

INS from failing to comply with the statutory timing

requirements. Mayock v. Nelson, 714 F. Supp. 1558 (N.D.

8 HAJRO V. USCIS

Cal. 1989), rev’d and remanded, 938 F.2d 1006 (9th Cir.

1991).

On appeal, we reversed and remanded. We held that the

district court had overlooked the existence of genuine issues

of material fact as to whether increasing workloads at INS

offices created “exceptional circumstances” justifying its

failure to respond within the statutory time limits, and

whether the agency had demonstrated “due diligence” in

responding to requests for information urgently needed by

aliens who faced pending deportation or exclusion

proceedings. See Mayock v. Nelson, 938 F.2d 1006, 1007–08

(9th Cir. 1991).

Upon remand, the parties entered into a settlement

agreement (“the Settlement Agreement”), in which INS

agreed to implement expedited processing of a FOIA request

where the requester demonstrates that an individual’s life or

personal safety would be jeopardized; or where the

requester’s substantial due process rights would be impaired

by the failure to process a request immediately. The district

court dismissed the case with prejudice but the parties

subsequently filed the Settlement Agreement with the court

in 1992. The district court’s dismissal order did not expressly

retain jurisdiction of the Settlement Agreement nor did it

incorporate its terms into the order.

B

Mirsad Hajro was a permanent resident of the United

States who applied for naturalization in 2003. In October

2007, USCIS notified Hajro that his naturalization application

had been denied based on evidence in his alien registration

file that allegedly revealed false testimony regarding his

HAJRO V. USCIS 9

foreign military service. As part of his appeal from the denial

of his application for citizenship, Hajro filed a FOIA request

with the USCIS National Records Center in November 2007

seeking a copy of his alien registration file. Hajro requested

expedited processing of his FOIA request under the terms of

the 1992 Settlement Agreement.

Since 2007 USCIS has used a three-track system for

processing FOIA requests: “Track 1” for simple requests,

“Track 2” for complex inquiries that require additional time,

and “Track 3” for expedited processing for individuals

subject to removal proceedings and scheduled for a hearing

before an immigration judge. Special FOIA Processing

Track, 72 Fed. Reg. 9017–01 (Feb. 28, 2007). In responding

to Hajro’s FOIA request, USCIS denied Hajro’s expedited

request and processed his request under Track 2. USCIS’s

letter did not include notice of any “unusual circumstances”

justifying an extension of the current twenty-day time limit.

See 5 U.S.C. § 552(a)(6)(A), (B).

It is undisputed that USCIS failed to issue Hajro’s FOIA

request within the twenty-day time limit. Hajro I, 832 F.

Supp. 2d at 1101. As a result of the delay, Hajro appealed the

denial of his naturalization application without the evidence

relied upon by USCIS in denying it.1 Id. at 1112.

1

On March 4, 2008, the National Records Center identified 442 pages

responsive to Hajro’s request, and forwarded 356 pages in their entirety

and 8 pages in part. USCIS withheld 78 pages. After Hajro’s FOIA

administrative appeal, on July 31, 2008, USCIS released an additional 12

pages and 1 page in part. The district court determined that “none of the

documents released [] by USCIS contain[ed] even a factual reference to

his purportedly inconsistent or misleading statements.” Hajro I, 832 F.

Supp. 2d at 1112.

10 HAJRO V. USCIS

While this appeal was pending, Hajro successfully

challenged USCIS’s denial of citizenship and he has since

been naturalized as a U.S. citizen. See Hajro v. Barrett,

849 F. Supp. 2d 945 (N.D. Cal. 2012).

C

Mayock and Hajro initiated this action in March 2008.

They sought declaratory and injunctive relief under FOIA and

the Administrative Procedures Act (“APA”), and enforcement

of the 1992 Settlement Agreement. Plaintiffs’ First Amended

Complaint (“FAC”), filed June 10, 2008, asserts nine causes

of action:

(1) “Track 3” of Defendants’ current,

multi-track policy violates the Settlement

Agreement;

(2) Defendants’ denial of Hajro’s request for

expedited processing also violates the

Settlement Agreement;

(3) The timing by which Defendants provided

Hajro with the material responsive to his

FOIA request violated FOIA Section

552(a)(6)(A) and 6 C.F.R. § 5.6(b);

(4) Defendants’ failure to notify Hajro of the

“unusual circumstances” that prevented

USCIS from processing his FOIA request

within the 20-day statutory limit violated 6

C.F.R. § 5.5(c)(1);

HAJRO V. USCIS 11

(5) Defendants have a pattern or practice of

failing to comply with the timing

requirements set forth by FOIA Sections

552(a)(6)(A), (B), (C);

(6) Defendants unlawfully withheld the

information requested by Hajro in violation of

[] [5 U.S.C.] Section 551 et seq. and 555(b),

as well as Sections 702, 704, and 706 of the

APA;

(7) Such withholding of nonexempt material

violated Hajro’s due process rights because it

interfered with his ability to adequately appeal

his naturalization denial and violated his right

to a fair hearing . . . ;

(8) Defendants’ implementation of the “Track

3” policy violates the Fifth Amendment

guarantee of Equal Protection; and

(9) Adoption of the “Track 3” policy without

notice and comment rulemaking procedure

violated Section 553 of the APA.

Hajro I, 832 F. Supp. 2d at 1102–03.

USCIS moved for summary judgment on the FAC in its

entirety. Plaintiffs opposed Defendants’ motion and

themselves moved for summary judgment.

12 HAJRO V. USCIS

On October 13, 2011, the district court filed its summary

judgment order. Hajro I, 832 F. Supp. 2d 1095. The district

court ruled in Plaintiffs’ favor as to all but Claim Eight.2

On December 12, 2011, USCIS filed a notice of appeal

(No. 11-17948) citing the summary judgment order. After

receiving input from both parties in drafting the form of an

injunction, the district court issued its final judgment order

and entered a permanent injunction on May 7, 2012. USCIS

did not amend its notice of appeal to include the permanent

injunction.

On October 15, 2012, the district court granted in part

Plaintiffs’ motion for attorneys’ fees and costs. Hajro v.

USCIS (“Hajro II”), 900 F. Supp. 2d 1034 (N.D. Cal. 2012).

Defendants filed a timely notice of appeal (No. 12-17765)

challenging that decision on December 14, 2012.

Our Appellate Commissioner, in an order dated January

4, 2014, asked both parties to address whether we have

jurisdiction over the summary judgment and permanent

injunction appeal (No. 11-17948) in light of the fact that

USCIS filed its notice of appeal after the summary judgment

order but before entry of the actual permanent injunction.

USCIS now challenges only Claims One and Two related

to the 1992 Settlement Agreement, Claim Five—the pattern

or practice claim—and the scope of the permanent injunction.

2

It granted summary judgment in favor of former Attorney General Eric

Holder with respect to all nine causes of action; and in favor of former

Homeland Security Secretary Janet Napolitano, T. Diane Cejka, and

Rosemary Melville as to the third, fourth, fifth, and sixth causes of action.

HAJRO V. USCIS 13

II

We hold that we have jurisdiction to review the summary

judgment order, but dismiss USCIS’s challenge to the

permanent injunction for lack of jurisdiction under Federal

Rule of Appellate Procedure (“FRAP”) 4(a)(2).

The requirement to file a notice of appeal is “mandatory

and jurisdictional.” Browder v. Dir., Dep’t of Corr. of Ill.,

434 U.S. 257, 264 (1978). The government must file a notice

of appeal within sixty days of the date of a final judgment or

an appealable order. FRAP 4(a)(1)(B). However, a party

may prematurely appeal under FRAP 4(a)(2):

A notice of appeal filed after the court

announces a decision or order—but before the

entry of the judgment or order—is treated as

filed on the date of and after the entry.

The issue here is whether USCIS’s December 12, 2011,

notice of appeal can be treated as filed on May 7, 2012—the

date the district court filed its final judgment and permanent

injunction—such that USCIS can challenge both the

summary judgment order and the permanent injunction.

Two cases govern this jurisdictional issue. First, the U.S.

Supreme Court in FirsTier Mortgage Co. v. Investors

Mortgage Ins. Co., held that FRAP 4(a)(2) “permits a notice

of appeal from a nonfinal decision to operate as a notice of

appeal from the final judgment only when a district court

announces a decision that would be appealable if immediately

followed by the entry of judgment.” 498 U.S. 269, 276

(1991) (emphasis in original). There, the appellant filed a

notice of appeal after the district court orally ruled from the

14 HAJRO V. USCIS

bench that it was granting respondent’s summary judgment

motion while simultaneously asking the parties for suggested

findings of fact and conclusions of law for its formal order.

Id. at 270–71. The Supreme Court concluded that FRAP

4(a)(2) rescued the premature notice of appeal, stating that

“Rule 4(a)(2) was intended to protect the unskilled litigant

who files a notice of appeal from a decision that he

reasonably but mistakenly believes to be a final judgment

. . . .” Id. at 276.

While other circuits have generously interpreted FRAP

4(a)(2) and FirsTier, the Ninth Circuit has narrowly

construed both. Compare Capitol Sprinkler Inspection, Inc.

v. Guest Servs., Inc., 630 F.3d 217, 223 (D.C. Cir. 2011)

(emphasizing objective “immediately appealable” standard

regardless of counsel’s subjective reasonableness in filing the

notice of appeal), with Kendall v. Homestead Dev. Co. (In re

Jack Raley Constr., Inc.), 17 F.3d 291, 294 (9th Cir. 1994)

(concluding appellants had no reasonable belief that notice of

appeal was effective especially where they requested

permission to brief and argue remaining issue); Kennedy v.

Applause, Inc., 90 F.3d 1477, 1482–83 (9th Cir. 1996). Cf.

Brown v. Columbia Sussex Corp., 664 F.3d 182, 188–89 (7th

Cir. 2011) (reading FirsTier “to hold that Rule 4(a)(2) will

save a premature notice if, regarding the claim being

appealed, the entry of judgment is all that is left for the court

to do” (emphasis in original)). As USCIS notes, there are

many similarities between FirsTier and this case that may

have warranted a different outcome had we decided this case

solely on FRAP 4(a)(2) and FirsTier. However, our case law

post-FirsTier is clear: “a premature notice of appeal is valid

under FRAP 4(a)(2) when ‘[a]ll that remained was the clerk’s

ministerial task of entering a Rule 58 judgment.’” Kennedy,

HAJRO V. USCIS 15

90 F.3d at 1483 (quoting In re Jack Raley Constr., Inc.,

17 F.3d at 294).

In Kennedy, we addressed the merits of the summary

judgment order but dismissed the appellant’s challenge to the

district court’s award of attorneys’ fees for want of

jurisdiction. 90 F.3d at 1479. After the district court granted

defendant Applause’s summary judgment motion, Kennedy

filed a notice of appeal. Id. at 1480. Subsequently, Applause

moved for attorneys’ fees and Rule 11 sanctions. Id. The

district court denied the Rule 11 motion for sanctions, but

granted in part Applause’s motion for attorneys’ fees without

determining the amount of fees and costs. Id. Prior to the

determination of the fees, Kennedy filed a “Notice of

Amended Appeal” from the order. Id. Because Kennedy

filed the notice of appeal before the district court calculated

the fees and costs, we addressed the merits of Kennedy’s

claim based on the summary judgment order, but dismissed

the challenge to the attorneys’ fees award as premature. Id.

at 1482.

We reasoned that, because the amount of fees had yet to

be determined and the court had requested further

submissions from both parties to finalize the fee amount, the

district court’s order was not one “that would be appealable

if immediately followed by the entry of judgment.” Id. at

1483 (quoting FirsTier, 498 U.S. at 276). In other words,

more than a ministerial task remained. Id. (citing In re Jack

Raley Constr., Inc., 17 F.3d at 294).

Here, the district court’s October 13, 2011, summary

judgment order addressed both cross-motions for summary

judgment and all of Plaintiffs’ claims. Hajro I, 832 F. Supp.

2d at 1099–1100. Because the district court disposed of all

16 HAJRO V. USCIS

claims, we find that the summary judgment order “would be”

immediately appealable if immediately followed by the entry

of judgment. However, like Kennedy, the district court

requested proposed forms of injunction from both parties in

order to craft the permanent injunction. USCIS could not

have “reasonably but mistakenly believe[d]” their notice of

appeal included the permanent injunction when the parties

continued to debate the final language and scope of the

injunction. FirsTier, 498 U.S. at 276. The claim USCIS now

appeals—the scope of the permanent injunction—would not

be immediately appealable because the scope and language of

the injunction were not yet final when the government filed

the notice of appeal. The issuance of the permanent

injunction where the parties continued to debate the language

was not merely ministerial.

To be clear, a significant amount of overlap exists

between the summary judgment order and the permanent

injunction. For example, both orders assert subject matter

jurisdiction over the Settlement Agreement and provide relief

for Plaintiffs’ pattern or practice claim.3 However, the

3

For example, compare part of the Summary Judgment Order with the

first two paragraphs of the Permanent Injunction. The Summary

Judgment Order provides, in part:

[P]artial summary judgment is GRANTED in favor of

Plaintiffs on Plaintiffs’ claims for injunctive relief

requiring USCIS to: 1) provide a copy of a requestor’s

file within the twenty-day time limit mandated by

5 U.S.C. § 552(a)(6)(A); and 2) give the written notice

mandated by 5 U.S.C. § 552(a)(6)(B) if an extension of

time is needed due to “unusual circumstances”. . .

[P]artial summary judgment is GRANTED in favor of

Plaintiffs on Plaintiffs’ claim that USCIS’s Track 3

HAJRO V. USCIS 17

nationwide scope of the permanent injunction became

FOIA processing policy and regulation violates the

Settlement Agreement and was promulgated in

violation of the APA and FOIA . . .

Hajro I, 832 F. Supp. 2d at 1099–100. The Permanent Injunction

provides, in part:

Having determined [] [USCIS] to be in violation of

certain provisions of the [FOIA] for the reasons set

forth in the court’s order of October 13, 2011 on

cross-motions for summary judgment, including

FOIA’s timing provisions as set forth in 5 U.S.C.

§ 552(a)(6), the court hereby orders that:

1) USCIS shall comply with the requirements set forth

in 5 U.S.C. § 552(a)(6)(A) and (B).

a) USCIS shall provide a copy of a requestor’s alien

registration file within the twenty–business–day time

limit mandated by 5 U.S.C. § 552(a)(6)(A)(i).

b) USCIS shall make a determination with respect to

any FOIA appeal within the twenty–business–day time

limit mandated by 5 U.S.C. § 552(a)(6)(A)(ii).

c) USCIS shall issue the written notice mandated by

5 U.S.C. § 552(a)(6)(B) to a requestor if an extension of

an additional ten business days is needed due to

“unusual circumstances.” This written notice must set

forth the unusual circumstances, as defined in 5 U.S.C.

§ 552(a)(6)(B)(iii) for such extension and setting a new

response date. The final response date shall be within

30 business days of the original request date.

2) USCIS shall follow, implement, and execute the

terms of the 1992 Mayock Settlement Agreement. . . .

Id. at 1120.

18 HAJRO V. USCIS

apparent only after the district court issued the permanent

injunction on May 7, 2012.4 While we do not exercise

jurisdiction directly over the district court’s permanent

injunction nor opine on its scope, our reversal of the summary

judgment order will inevitably undermine the justification for

the permanent injunction.5

In sum, we have jurisdiction to review the summary

judgment order, but dismiss USCIS’s challenge to the scope

of the permanent injunction for lack of jurisdiction.

Nonetheless, because we reverse and remand the summary

judgment order, we must vacate the current injunction.

III

In a FOIA case, instead of determining whether a genuine

issue of material fact exists, we employ a special two-step

standard to review the grant of summary judgment. See Ctr.

for Biological Diversity v. U.S. Dep’t of Agric., 626 F.3d

1113, 1116 (9th Cir. 2010). First, we ask whether an

adequate factual basis supports the district court’s ruling de

4

The permanent injunction’s final paragraph states: “4) USCIS shall

issue a written notice to the USCIS National Records Center describing

the terms of this permanent injunction and instructing the National

Records Center regarding compliance with the terms of this injunction.”

Hajro I, 832 F. Supp. 2d at 1120.

5

In crafting a permanent injunction of national consequence, the district

court must consider the likelihood of recurrence, the effect on the public

of disclosure or nondisclosure, the agency’s good faith intent to comply,

and the character of past violations. Long v. I.R.S., 693 F.2d 907, 909 (9th

Cir. 1982) (citing GSA v. Benson, 415 F.2d 878, 880 (9th Cir. 1969) and

United States v. W.T. Grant Co., 345 U.S. 629, 633 (1952)); see, e.g., S.

Yuba River Citizens League v. Nat’l Marine Fisheries Serv., No.

CIVS-06-2845 LKK/JFM, 2008 WL 2523819 (E.D. Cal. June 20, 2008).

HAJRO V. USCIS 19

novo. Pac. Fisheries, Inc. v. United States, 539 F.3d 1143,

1149 (9th Cir. 2008). Second, “[i]f we determine that an

adequate factual basis exists to support the district court’s

decision, we review the district court’s conclusions under

either the clearly erroneous or de novo standard of review,

depending on whether the district court’s conclusions are

primarily factual or legal.” Id.

The district court’s determination whether a party has

standing, and whether there is subject matter jurisdiction, is

reviewed de novo. See San Luis & Delta-Mendota Water

Auth. v. United States, 672 F.3d 676, 699 (9th Cir. 2012);

Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir. 2002). The

district court’s factual findings on jurisdictional issues are

reviewed for clear error. See Schnabel, 302 F.3d at 1029.

IV

Reviewing the summary judgment order, we hold (1) that

the jurisdictional rule announced in Kokkonen v. Guardian

Life Ins. Co., 511 U.S. 375 (1994), applies retroactively to the

1992 Settlement Agreement; and (2) that while the district

court may assert supplemental jurisdiction over the

Settlement Agreement claims, Plaintiffs have failed to show

an “unequivocally expressed” waiver of sovereign immunity.6

As such, we must reverse the summary judgment order as to

Claims One and Two. While we recognize the harsh

6

USCIS acknowledges that it did not raise this jurisdictional issue

before the district court. However, failure to challenge the district court’s

jurisdiction below does not ordinarily constitute waiver. See Attorneys

Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594–95 (9th Cir.

1996). A jurisdictional issue may be raised for the first time on appeal

regardless of its “constitutional magnitude.” Clinton v. City of New York,

524 U.S. 417, 428 (1998).

20 HAJRO V. USCIS

consequence, especially considering the parties relied on

Ninth Circuit case law as it stood in 1992, “we simply cannot

waive sovereign immunity where Congress has not.” United

States v. Park Place Assocs., Ltd., 563 F.3d 907, 935 (9th Cir.

2009); United States ex rel. Haight v. Catholic Healthcare

W., 602 F.3d 949, 953 (9th Cir. 2010) (a rule given strict

retroactive effect by the Supreme Court must be applied to all

cases “no matter how inequitable the result”).

A

Under the Supreme Court’s decision in Kokkonen v.

Guardian Life Ins. Co., a district court does not have the

inherent power to enforce the terms of a settlement agreement

under the doctrine of ancillary jurisdiction. 511 U.S. 375. If

a district court wishes to retain jurisdiction to later enforce

the terms of a settlement agreement, the order dismissing a

case with prejudice must incorporate the terms of the

settlement agreement or expressly retain jurisdiction. Id. at

380–81. Here, the parties do not dispute that the district

court’s 1992 order did neither.

Instead, Plaintiffs argue that Kokkonen, decided in 1994,

should not be applied retroactively to the Settlement

Agreement, filed in 1992. Plaintiffs cite Chevron Oil v.

Huson, 404 U.S. 97 (1971), for the proposition that whether

a Supreme Court decision applies retroactively depends on a

three-prong test.7 Plaintiffs misunderstand the law.

7

The three-prong test considers: (1) the history of the decision in

question—i.e., whether it overrules past precedent or decides an issue of

first impression; (2) whether retroactivity would advance or hinder the

new rule’s application; and (3) the extent of any inequity that would result

HAJRO V. USCIS 21

When the Supreme Court announces a new rule and

retroactively applies it to the case before it, all courts must

apply the rule retroactively. Harper v. Va. Dep’t of Taxation,

509 U.S. 86, 90 (1993); Catholic Healthcare W., 602 F.3d at

953; Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089

(9th Cir. 2007); see also Christopher A. Goelz et al., Ninth

Circuit Civil Appellate Practice ¶8:815 (The Rutter Group

2015). Silence on the issue indicates that the decision is to be

given retroactive effect. Harper, 509 U.S. at 97–98;

Gonzales v. U.S. Dep’t of Homeland Sec., 659 F.3d 930,

938–39 (9th Cir. 2011). Otherwise, the retroactivity depends

on the three-prong test from Huson.

Furthermore, where a Supreme Court decision affects our

jurisdiction to hear certain claims, the jurisdictional ruling has

retroactive effect. Firestone Tire & Rubber Co. v. Risjord,

449 U.S. 368, 379 (1981); Austin v. City & Cnty of Honolulu,

840 F.2d 678, 682 (9th Cir. 1988) (jurisdictional rulings “may

never be made prospective only”); see Catholic Healthcare

W., 602 F.3d at 953. Here, the Supreme Court’s rule

announced in Kokkonen—that a district court does not have

the inherent power to enforce the terms of a settlement

agreement under the doctrine of ancillary jurisdiction—

explicitly deals with the jurisdiction of federal courts.

Moreover, the Kokkonen court applied this new jurisdictional

rule to the parties before it. Therefore, we hold the Kokkonen

rule applies retroactively to the 1992 Settlement Agreement.

from retroactive application. Huson, 404 U.S. at 106–07; Holt v. Shalala,

35 F.3d 376, 380 (9th Cir. 1994).

22 HAJRO V. USCIS

B

Next, Plaintiffs contend that, even if Kokkonen applies,

the district court may assert supplemental jurisdiction under

28 U.S.C. § 1367 over two contract claims because they are

part of a common nucleus of operative fact related to seven

other federal claims.8 Unlike Kokkonen, where the parties

asserted diversity jurisdiction to get into federal court, here

the jurisdictional basis is primarily a federal question under

the FOIA statute. This is persuasive, but the federal

8

Plaintiffs make two additional creative but unpersuasive arguments.

First, Plaintiffs argue that the district court had subject matter jurisdiction

under 28 U.S.C. § 1331 to review the Settlement Agreement because the

Agreement was part of “separate guidance” adopted by USCIS under a

federal regulation. See Freedom of Information Act and Privacy Act

Procedures, 68 Fed. Reg. 4056-01 (Jan. 27, 2003). To find jurisdiction on

this ground, we would have to make two inferential leaps. First, we would

have to accept that the federal regulation cited by Plaintiffs referencing

“separate guidance” adopted by the Department of Homeland Security

(“DHS”) includes the 1992 Settlement Agreement. Then, we would have

to infer that since the federal regulation incorporates the 1992 Settlement

Agreement, it arises under the FOIA statute. Besides Plaintiffs’ assertion

that the Settlement Agreement is “separate guidance” adopted by USCIS,

there is no evidence or case law presented that DHS’s reference to

“separate guidance” intended to include all settlement agreements the

agency entered into with private parties. The connection is too attenuated

to serve as a basis for jurisdiction.

Second, Plaintiffs point out that the Settlement Agreement and parties

contemplated that the district court would enforce the terms of the

Agreement. However, unlike personal jurisdiction, “no action of the

parties can confer subject-matter jurisdiction upon a federal court.” Ins.

Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 702 (1982); see also Janakes v. U.S. Postal Serv., 768 F.2d 1091,

1095 (9th Cir. 1985) (“[P]arties cannot by stipulation or waiver grant or

deny federal subject matter jurisdiction.”).

HAJRO V. USCIS 23

government is not your typical defendant—a party also needs

permission from Congress to sue the government.

Although some Ninth Circuit cases have conflated the

two, sovereign immunity and subject matter jurisdiction

present distinct issues. See Park Place Assocs., Ltd.,

563 F.3d at 923 (9th Cir. 2009) (citing cases conflating the

two issues); Arford v. United States, 934 F.2d 229, 231 (9th

Cir. 1991); see also Specific Relief v. Money Damages:

Subcontractors Caught in the Web of Sovereign Immunity,

13 No. 5 Nash & Cibinic Rep. ¶ 25. A waiver of sovereign

immunity means the United States is amenable to suit in a

court properly possessing jurisdiction; it does not guarantee

a forum. See Alvarado v. Table Mountain Rancheria,

509 F.3d 1008, 1016 (9th Cir. 2007) (“To confer subject

matter jurisdiction in an action against a sovereign, in

addition to a waiver of sovereign immunity, there must be

statutory authority vesting a district court with subject matter

jurisdiction.”).

Conversely, if the district court here wished to avail itself

of 28 U.S.C. § 1367, it would need a congressional waiver of

sovereign immunity to enforce the 1992 Agreement against

the federal government.9 Park Place Assocs., Ltd., 563 F.3d

9

USCIS’s invocation of the Tucker Act is a red herring. The Tucker

Act does not apply to contract claims primarily seeking injunctive relief.

Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999). Plaintiffs

themselves concede the Settlement Agreement primarily contemplates

injunctive relief. The Tucker Act, 28 U.S.C. § 1491 (2000), grants subject

matter jurisdiction to the Court of Federal Claims. This jurisdictional

grant is limited to monetary claims based on contracts with the United

States and money-mandating constitutional provisions, statutes,

regulations, or executive orders. United States v. Mitchell, 463 U.S. 206,

215–18 (1983). “FOIA claims are not within the subject matter

24 HAJRO V. USCIS

907; see also Dep’t of the Army v. Blue Fox, Inc., 525 U.S.

255 (1999). The issue then becomes what Congress

contemplated by inserting its waiver provision in FOIA and

whether that waiver can include a contract entered into

between a private party and a federal agency related to FOIA

litigation.

We begin our inquiry with the Supreme Court’s

instruction that “a waiver of sovereign immunity is to be

strictly construed, in terms of its scope, in favor of the

sovereign.” Blue Fox, Inc., 525 U.S. at 261 (citing Lane v.

PenÞa, 518 U.S. 187, 192 (1996), and Library of Congress v.

Shaw, 478 U.S. 310, 318 (1986)). The Supreme Court has

frequently cautioned against finding implied waivers of

sovereign immunity. Id.

Plaintiffs have the burden of meeting this high

standard—such a waiver must be “unequivocally expressed”

in the statutory text. Id. FOIA’s waiver of immunity and

jurisdictional grant provides that district courts have

“jurisdiction to enjoin the agency from withholding agency

records and to order the production of any agency records

improperly withheld from the complainant.” See 5 U.S.C.

§ 552(a)(4)(B).

Beginning with the plain language in § 552(a)(4)(B), “to

enjoin” is defined as “[t]o legally prohibit or restrain by

injunction. To prescribe, mandate, or strongly encourage.”

Enjoin, Black’s Law Dictionary (10th ed. 2014). The plain

language clearly contemplates declaratory and injunctive

jurisdiction of the Court of Federal Claims because FOIA does not

mandate money damages.” Clark v. United States, 116 F. App’x 278, 279

(Fed. Cir. 2004) (referencing 5 U.S.C. § 552(a)(4)(B) (2000)).

HAJRO V. USCIS 25

relief, which is what Plaintiffs seek. However, Plaintiffs’

cause of action (a contract claim) is not “unequivocally

expressed” in the statute. Mayock is not seeking to enforce

the statutory mandate to provide timely FOIA disclosures

itself, rather he seeks enforcement of his own private

agreement with a federal agency related to FOIA requests.

As mentioned above, supra note 8, aside from a citation to a

federal regulation that may or may not apply, Mayock

provides no support for this argument. Furthermore, a review

of the legislative history of § 552(a)(4)(B) does not support

a finding that an agency settlement agreement related to

FOIA disclosures was contemplated by Congress as an

“improper” withholding.10 Strictly construing the waiver of

immunity in favor of the sovereign, we find no waiver of

sovereign immunity to enforce the terms of the Settlement

Agreement under a theory of supplemental jurisdiction. Blue

Fox, Inc., 525 U.S. at 261.

In sum, because Kokkonen applies retroactively and the

1992 district court order did not retain jurisdiction over the

prior lawsuit’s Settlement Agreement, the district court does

not have the inherent power to enforce the terms of the

Settlement Agreement. Even asserting supplemental

jurisdiction over the contract claims, Plaintiffs’ suit to enforce

the contract still fails as they have not met their burden of

proving an “unequivocally expressed” congressional waiver

10

See H.R. Rep. No. 92-1419, at 70–73 (1972) (discussing court’s

interpretation of FOIA and amendments clarifying that courts have the

authority to review in camera documents when an agency asserts the

exemption based on national defense or foreign policy); H.R. Rep. No. 93-

876, at 5–6 (1974); S. Rep. No. 93-1200 (1974); H.R. Rep. No. 104-795,

at 7–11. (1996) (discussing the evolution of the Freedom of Information

Act; no mention of settlement agreements).

26 HAJRO V. USCIS

of sovereign immunity. Therefore, we reverse summary

judgment in favor of Plaintiffs as to Claims One and Two.

V

USCIS also challenges the district court’s finding that

Hajro and Mayock satisfied the standing elements to bring a

pattern or practice claim. Because USCIS has not appealed

the district court’s finding with respect to Hajro’s specific

FOIA request (Claims Three, Four, and Six), we limit our

review to the pattern or practice claim (Claim Five). We hold

that the factual record is not sufficiently developed to

determine whether Mayock has standing to bring a pattern or

practice claim, satisfying the personal harm and future harm

prongs under our clarified standard. Mayock’s single FOIA

request addressed to another lawyer at his firm is insufficient

to prove the personal harm he alleges—inability to effectively

represent his clients’ interests and harm to his legal practice.

Hajro, on the other hand, lost standing to bring a pattern or

practice claim during the pendency of this appeal when he

was granted his citizenship, because the probability that

USCIS’s delays “will impair [Hajro’s] lawful access to

information in the future” is now remote. Payne Enters., Inc.,

837 F.2d at 491. Therefore, we reverse and remand for

further fact finding as to Mayock’s standing and dismiss

HAJRO V. USCIS 27

Hajro’s claim as moot.11 See Pac. Fisheries, Inc., 539 F.3d at

1149.

***

We begin our inquiry with the “irreducible constitutional

minimum” elements of standing: injury in fact, causation, and

redressability. Lujan, 504 U.S. at 560. Neither party debates

causation or redressability. The contested element here is the

showing of injury in fact in the context of injunctive relief.

A plaintiff can establish injury in fact by showing that he

suffered “an invasion of a legally protected interest which is

(a) concrete and particularized; and (b) actual or imminent,

not conjectural or hypothetical.” Id. (internal quotations and

citations omitted). Where a party seeks injunctive relief, he

must allege a sufficient likelihood that he will be subjected in

the future to the allegedly illegal policy. Lyons, 461 U.S. at

105, 110. At the summary judgment stage, “the plaintiff can

no longer rest on [] ‘mere allegations’ but must ‘set forth’ by

affidavit or other evidence ‘specific facts,’ Fed. Rule Civ.

Proc. 56(e), which for purposes of the summary judgment

motion will be taken to be true.” Lujan, 504 U.S. at 561.

11

Although some issues pertaining to Plaintiffs’ standing in seeking

injunctive relief may also be relevant to the merits, we do not mean to

prejudge the merits of this pattern or practice claim. The standing

issue—whether Hajro and Mayock have alleged an injury in fact—is

separate but related to the question of whether Plaintiffs have established

that USCIS has a pattern or practice of untimely responses to FOIA

requests under 5 U.S.C. § 552(a)(6)(A), (B), (C). While we limit our

holding to the question of standing, the district court’s supplementation of

the record may well overlap with the merits of any pattern or practice

claim.

28 HAJRO V. USCIS

We clarify that the Article III requirements for a specific

FOIA request claim and a pattern or practice claim differ

from each other. We have recognized two separate claims

that complainants can bring against an agency under FOIA.

The first is a suit where a plaintiff attacks a specific agency

action for (1) “improperly” (2) “withheld” (3) “agency

records.” Kissinger v. Reporters Comm. for Freedom of the

Press, 445 U.S. 136, 150 (1980). For specific FOIA request

claims, after the agency produces all non-exempt documents

and the court confirms the agency’s proper invocation of an

exemption, the specific FOIA claim is moot because the

injury has been remedied. See, e.g., Perry v. Block, 684 F.2d

121, 125 (D.C. Cir. 1982) (“[I]f we are convinced that

appellees have, however belatedly, released all nonexempt

material, we have no further judicial function to perform

under the FOIA.”); see also Papa v. United States, 281 F.3d

1004, 1013 & n.42 (9th Cir. 2002).

A FOIA requester may also assert a FOIA pattern or

practice claim—a “claim that an agency policy or practice

will impair the party’s lawful access to information in the

future.” Payne Enters., Inc., 837 F.2d at 491 (emphasis in

original); accord Newport Aeronautical Sales v. Dep’t of the

Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012). For example,

we have recognized a pattern or practice claim for

unreasonable delay in responding to FOIA requests. See

Mayock, 938 F.2d at 1006; Long, 693 F.2d at 909–10.

We now clarify, based on Lujan and our own precedent,

that where 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

HAJRO V. USCIS 29

FOIA violation was not merely an isolated incident,

(2) 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. See Lujan, 504 U.S. at 563;

Lyons, 461 U.S. at 105; Long, 693 F.2d at 909–10. In other

words, a pattern or practice claim is not necessarily mooted

by an agency’s production of documents. Payne Enters., Inc.,

837 F.2d at 491 (holding that a pattern or practice claim is

viable “[s]o long as an agency’s refusal to supply information

evidences a policy or practice of delayed disclosure or some

other failure to abide by the terms of the FOIA, and not

merely isolated mistakes by agency officials”).

These three requirements are not novel, but do clarify our

pattern or practice jurisprudence. This standard packages our

own precedent that recognizes FOIA pattern or practice

claims and the availability of injunctive relief where the

“alleged illegal conduct will recur,” Long, 693 F.2d at 909,

and Supreme Court precedent holding that an injury in fact

“requires that the party seeking review be himself among the

injured,” Sierra Club v. Morton, 405 U.S. 727, 735 (1972).

Morever, because plaintiffs seek injunctive relief, plaintiffs

must show a likelihood of future harm caused by the policy

or practice. Lyons, 461 U.S. at 105. Thus, for the purposes

of clarifying the FOIA pattern or practice claim standing

requirements, we divide the alleged injury in fact into three

parts.

A

Both Mayock and Hajro meet the first prong of the test

for the purposes of Article III standing. Although this first

prong overlaps with the merits of a pattern or practice claim,

we comment only on the standing aspect here. For the

30 HAJRO V. USCIS

purposes of our standing inquiry, we simply review whether

the plaintiff asserted that the federal agency has a pattern or

practice of violating FOIA and if the plaintiff has provided

any type of “specific facts” beyond “mere allegations.”

Lujan, 504 U.S. at 561; see also City of Houston v. Dep’t of

Housing & Urban Dev., 24 F.3d 1421, 1429–30 (D.C. Cir.

1994). Plaintiffs have a number of ways to prove that the

agency’s FOIA violation was not an isolated event. For

example, a plaintiff can provide evidence that he has been

subjected to a FOIA violation more than once. Or a plaintiff

can provide the court with affidavits of people similarly

situated to the plaintiff who were also harmed by the pattern

or practice.

Here, Mayock and Hajro opted for the latter. First, both

Plaintiffs expressly allege in their complaint “that Defendants

have a pattern or practice of failing to comply with the time

requirement” set forth in 5 U.S.C. § 552(a)(6)(A), (B), (C).

To support their allegation, Plaintiffs then provided twenty-

six declarations by immigration attorneys detailing USCIS’s

delayed FOIA responses and attached an immigrant client’s

FOIA request as proof. Therefore—for the purposes of

standing and without opining on the merits—both plaintiffs

have met this prong.

Next, we consider each plaintiff individually to determine

whether they meet the remaining elements of the test.

B

1

Under prong two, Mayock must demonstrate he was

personally harmed by the alleged pattern. See Lujan,

HAJRO V. USCIS 31

504 U.S. at 563; Payne Enters., Inc., 837 F.2d at 491. USCIS

attacks Mayock’s standing, arguing he was not personally

harmed because Mayock, as an attorney, is not a requester

under FOIA. Additionally, USCIS argues that Mayock must

meet the third party standing requirements, which he cannot

establish because he is suing on behalf of prospective clients.

We find both arguments unavailing.

First, a practicing immigration attorney who routinely

files FOIA requests is a requester under FOIA. USCIS’s own

FOIA request form (Form G-639) lists the attorney as the

“requester” of information.12 We have previously accorded

Mayock “requester” status in his capacity as an attorney to

bring a pattern or practice claim. See Mayock, 938 F.2d at

1007 n.1.13 FOIA’s text and legislative intent also support

our categorization of Mayock as a requester. The statute’s

very first section begins with “[e]ach agency shall make

available to the public information as follows . . . .” 5 U.S.C.

§ 552(a) (emphasis added). The statute further states that if

an agency’s requesting procedures are followed, the agency

“shall make the records promptly available to any person.”

5 U.S.C. § 552(a)(3)(A) (emphasis added). “Congress clearly

intended the FOIA to give any member of the public as much

right to disclosure as one with a special interest in a particular

document . . . .” U.S. Dep’t of Defense v. Fed. Labor

Relations Auth., 510 U.S. 487, 496 (1994) (internal

12

See U.S. Citizenship and Immigration Services, G-639, Freedom of

Information Act/Privacy Act Request, http://www.uscis.gov/g-639 (last

visited October 15, 2015).

13

Although we have previously accorded Mayock standing in his

capacity as an attorney without comment, in light of Lujan and our refined

standard for a pattern or practice claim, here we need more information to

determine standing.

32 HAJRO V. USCIS

quotations and citations omitted); see also H.R. Rep. 1419 at

3 (Congress, in enacting FOIA, “adopted a policy that ‘any

person’ should have clear access to identifiable agency

records”); Nat’l Archives & Records Admin. v. Favish,

541 U.S. 157, 171–72 (2004) (Congress’s purpose was to

promote transparency across the government); Swan v. SEC,

96 F.3d 498, 499 (D.C. Cir. 1996) (“FOIA does not make

distinctions based on who is requesting the information.”).

Thus, Mayock is a requester for the purposes of FOIA.

Next, USCIS argues that Mayock cannot establish

standing because he is suing on behalf of prospective clients,

citing to Kowalski v. Tesmer, 543 U.S. 125, 134 (2004). But

Kowalski implicates third party standing, and Mayock alleges

a personal injury to his legal practice.14 Mayock claims that

delayed FOIA requests hinder his ability to effectively

represent his clients. Hajro I, 832 F. Supp. 2d at 1106. For

an immigration attorney such as Mayock, delayed FOIA

requests inhibit his ability to build a theory of the case or put

forth a defense, and may even expose Mayock to legal

malpractice claims and loss of reputation. Thus, the district

court correctly rejected USCIS’s attempt to characterize

Mayock as a third party. Id. at 1105–06 (“But Mayock is no

14

The Supreme Court has recognized the attorney-client relationship as

sufficient to confer third party standing. See Caplin & Drysdale,

Chartered v. United States, 491 U.S. 617, 623 n.3 (1989); Dep’t of Labor

v. Triplett, 494 U.S. 715, 720 (1990). But see Kowalski, 543 U.S. at

132–33 (attorneys asserting future clients’ interest insufficient where the

attorneys also sought “a federal court to short circuit the State’s

adjudication of th[e] constitutional question”). Because the facts before

us do not implicate third party standing, we decline to apply that doctrine

here.

HAJRO V. USCIS 33

mere third party to his clients; he represents them as the most

intimate of agents.”).15

Although an inability to effectively represent clients,

exposure to legal malpractice claims, and loss of reputation

may serve as a basis for individual standing, at the summary

judgment stage, we find genuine issues of material fact as to

Mayock’s personal harm. Mayock’s declaration avers that

15

The dissent argues Mayock cannot establish standing because

“Mayock has asserted exclusively harm to his clients.” This is wrong.

First, Mayock, in his own right, alleged a pattern or practice in the

complaint. See FAC ¶ 66 (“Plaintiffs allege that Defendants have a

pattern or practice of failing to comply with the time requirements . . . .”)

(emphasis added). The dissent misunderstands the record. Mayock is not

Hajro’s attorney; he is an independent plaintiff to this lawsuit alleging a

harm from USCIS’s pattern of delayed FOIA responses in addition to a

harm based on the Settlement Agreement. Despite dismissing Mayock’s

claims based on the Settlement Agreement, we are not free to ignore

Mayock’s independent cause of action alleging a pattern or practice claim

as the dissent suggests.

Second, in his answering brief before us Mayock asserts that “the

systematic delays in FOIA processing by USCIS prejudices both a client’s

ability to access potentially critical information and an immigration

lawyer’s ability to represent his or her clients.” (Emphasis added). Third,

if Mayock cannot establish standing for a pattern or practice claim against

USCIS delays upon remand, who can? Mayock is the model plaintiff to

assert a pattern or practice claim because his legal practice depends upon

the recurring delayed FOIA requests—whereas immigrants, like Hajro,

run the risk of mootness if they no longer have a need to file a FOIA

request from USCIS after the production of documents. Fourth, nowhere

does the dissent acknowledge that our court has previously accorded

Mayock—in his capacity as a lawyer—standing for this exact claim, albeit

under the law as it stood twenty-four years ago. Finally, the dissent

erroneously contends that “no prayer for relief [is] reflected [in] any claim

due to injury to Mayock separately as an attorney”—Mayock prays for

timely FOIA requests so that he can adequately represent his clients.

34 HAJRO V. USCIS

the government has never produced the records within the

statutory time period nor provided written notice setting forth

“unusual circumstances.”16 True, USCIS’s delays produce a

concrete and particularized injury for Mayock as it prejudices

Mayock’s ability to effectively represent his clients’ interests.

See Lujan, 504 U.S. at 560. But Mayock’s single FOIA

request addressed to another attorney at his firm is

insufficient to prove his harm was “actual or imminent.” Id.

at 561 (“[T]he nature and extent of facts that must be averred

(at the summary judgment stage) . . . in order to establish

standing depends considerably upon whether the plaintiff is

himself the object of the action (or foregone action) at

issue.”). We need more. Cf. Payne Enters., Inc., 837 F.2d

486 (corporation engaged in selling information and advice

about Government contracts to prospective contractors

challenged more than one FOIA request in pattern or practice

claim); Newport Aeronautical Sales, 684 F.3d 160, 163–64

(company that provided technical data to military contractors

provided two specific FOIA requests in alleging pattern or

practice claim); S. Yuba River Citizens League v. Nat’l

Marine Fisheries Serv., No. CIVS-06-2845 LKK/JFM, 2008

WL 2523819 (E.D. Cal. June 20, 2008) (non-profit

organizations provided three specific FOIA requests in

alleging pattern or practice of FOIA violation).

The twenty-six declarations from attorneys around the

country that Mayock provides as examples of delayed FOIA

16

“In my practice I have sometimes filed requests under the [FOIA] to

obtain the alien registration files for my clients who have a previous

record with the Immigration Service. In none of these cases has the

government ever produced the records I have requested within the

statutory time period of twenty days nor has the government provided

written notice setting forth any ‘unusual circumstances’ for an extension

of time beyond the statutory period of twenty days.”

HAJRO V. USCIS 35

requests go to the merits of the pattern or practice claim.

They do not help Mayock establish his personal harm. In

some instances—for example, where an immigrant himself

files a FOIA request seeking his or her alien file—a single

FOIA request may suffice to prove personal harm. There, the

personal harm would be more obvious and direct; thus,

demonstrating personal harm under prong two would be

easier. For example, in Hajro’s case, USCIS’s failure to

respond in a timely manner to Hajro’s FOIA request forced

him to file his brief addressing the denial of his naturalization

application without ever seeing the evidence against him on

which USCIS relied. Mayock’s alleged harm is distinct.

Mayock’s legal practice requires him to file FOIA requests

more than once; and the nature of his harm—potential

ineffective legal representation and loss of

reputation—requires more than one delayed FOIA request to

establish the more attenuated personal harm that may accrue

to an immigration lawyer.

The district court’s conclusion that Mayock had standing

is understandable without the benefit of this opinion. Hajro

I, 832 F. Supp. 2d at 1106. We also recognize that upon

remand Mayock may easily satisfy this element; however,

under our refined standard, where the plaintiff alleges he has

been subject to a pattern or practice of FOIA violations on

multiple occasions, he must provide sufficient evidence of

this to the court. Lujan, 504 U.S. at 561. Therefore, we

reverse and remand for the district court to conduct the

requisite fact-finding and determine, in the first instance,

whether Mayock meets prongs two and three of the pattern or

practice test (e.g., whether Mayock himself submitted more

than one FOIA request to USCIS at the time he filed this

complaint; whether Mayock himself will likely file more

FOIA requests with USCIS in the future).

36 HAJRO V. USCIS

2

Hajro’s case under prong two is simpler. His specific

FOIA request delayed by USCIS is sufficient to demonstrate

that he was personally harmed by USCIS’s pattern of delay

in contravention of FOIA’s time limits. USCIS responded to

Hajro’s November 2007 FOIA request almost four months

later, well beyond the twenty-day limit prescribed by

5 U.S.C. § 552(a)(6)(A), and it “did not include notice of any

‘unusual circumstances’ justifying an extension of the

statutory twenty-day time limit” per 5 U.S.C. § 552(a)(6)(B).

Hajro I, 832 F. Supp. 2d at 1100–01. As a result, Hajro

proceeded to his denial of citizenship appeal without the

requested information to rebut USCIS’s allegations against

him. Id. This is sufficient to show Hajro was personally

harmed by USCIS’s alleged pattern or practice of FOIA

violations.

C

The Supreme Court has held that “[p]ast exposure to

illegal conduct does not in itself show a present case or

controversy regarding injunctive relief . . . if unaccompanied

by any continuing, present adverse effects.” Lyons, 461 U.S.

at 102 (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96

(1974)). Because FOIA’s prescribed relief is injunctive or

declaratory, generally a plaintiff alleging a pattern or practice

claim under FOIA must also meet this future harm

requirement. See 5 U.S.C. § 552(a)(4)(B).

Because Mayock did not provide sufficient evidence of

his personal harm, we also remand to allow the district court

to determine prong three in the first instance after the

requisite fact finding.

HAJRO V. USCIS 37

While this case was pending before us, Hajro successfully

appealed USCIS’s denial of his application for citizenship.

Hajro v. Barrett, No. C 10–01772 MEJ, 2011 WL 2118602

(N.D. Cal. May 27, 2011); Hajro v. Barrett, 849 F. Supp. 2d

945 (N.D. Cal. 2012). Thus, based on the record before us,

the likelihood that Hajro will file another FOIA request from

USCIS seeking access to his alien file is remote.17 See Big

Lagoon Rancheria v. California, 789 F.3d 947, 955 (9th Cir.

2015) (en banc) (“A case is moot on appeal if no live

controversy remains at the time the court of appeals hears the

case. . . .”) (citation omitted).

Seeking injunctive relief on a pattern or practice claim

requires that Hajro himself will likely suffer future injury

from USCIS’s delayed FOIA requests or demonstrate his

injury would be capable of repetition, yet evading review.

See Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 170

(2000) (detailing when a defendant’s voluntary cessation of

an allegedly wrongful behavior does not moot a case if the

behavior could reasonably be expected to recur); Lyons,

461 U.S. at 105; Long, 693 F.2d at 909. Here, Hajro’s harm

was based on USCIS’s delayed response in turning over his

alien registration file to support his application for

naturalization. But with citizenship in hand, it is unlikely

USCIS “will impair [Hajro’s] lawful access to information in

the future.” Payne Enters., Inc., 837 F.2d at 491. We reverse

and remand as to Hajro’s pattern or practice claim with

instructions to dismiss his claim as moot.

17

Plaintiffs’ reference to the Controlled Application Review and

Resolution Program (“CARRP”) is not part of the district court record and

cannot be a basis to support the likelihood of future harm.

38 HAJRO V. USCIS

VI

In sum, we have jurisdiction to review the district court’s

summary judgment order under FRAP 4(a)(2), but dismiss

USCIS’s challenge to the permanent injunction for lack of

jurisdiction. We reverse the district court’s summary

judgment order with respect to Claims One and Two because

it lacked a waiver of sovereign immunity to enforce the terms

of the 1992 Settlement Agreement. Based on the clarified

pattern or practice test, we reverse and remand so that the

district court can make the requisite factual findings and

determine in the first instance whether Mayock has standing

to bring this claim. We also reverse and remand Hajro’s

pattern or practice claim with instructions to dismiss the

claim as moot. In light of our reversal, we vacate the

permanent injunction and we also vacate and remand the

attorneys’ fees award for recomputation.

REVERSED and REMANDED with instructions.

RAWLINSON, Circuit Judge, concurring in part and

dissenting in part:

I agree with the majority that we have jurisdiction to

review the summary judgment order and, although it is an

extremely close question, I ultimately agree that the

government’s premature appeal did not preserve its challenge

to entry of the permanent injunction.

I also have no quarrel with the majority’s conclusion that

the jurisdictional rule announced in Kokkonen v. Guardian

Life Ins. Co., 511 U.S. 375 (1994) applies retroactively to the

HAJRO V. USCIS 39

1992 Settlement Agreement. Because the district court did

not retain jurisdiction over the Settlement Agreement or

incorporate the agreement into the final judgment, the district

court lacked jurisdiction to enforce the agreement under the

doctrine of ancillary jurisdiction. See id. at 380–81. Having

determined the lack of jurisdiction on that basis, I see no need

to wade into the sovereign immunity issue. Finally, I agree

that Mirsad Hajro lost standing to bring a pattern or practice

claim once he was granted citizenship.

The only issue on which I part company with the majority

is the issue of James Mayock’s standing to bring a claim

under the Freedom of Information Act in his own right.

Mayock simply failed to allege any individual harm to him

other than indirectly through harm to his clients.

We all agree that Mayock, Hajro’s attorney, failed to

establish standing to bring an action under the Freedom of

Information Act under the operative complaint. In addition,

there is no indication in this record that on remand he will be

able to plausibly allege an injury in fact, one of the

“irreducible constitutional” elements of standing. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992).

The Supreme Court has described the injury requirement

as suffering “an injury in fact—an invasion of a legally

protected interest which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or hypothetical.”

Id. (citations and internal quotations marks omitted). In

addition, the party asserting an injury in fact must plausibly

allege “a causal connection between the injury and the

conduct complained of—the injury has to be fairly traceable

to the challenged action of the defendant . . . Id. (citation,

alterations, and internal quotation marks omitted).

40 HAJRO V. USCIS

In the First Amended Complaint, the allegations focused

exclusively on harm to Plaintiff Hajro and violation of the

Settlement Agreement.

The First Cause of Action alleged that the multi-track

policy violated the Settlement Agreement by allowing

expedited processing only for cases scheduled for a hearing

before an immigration judge. The First Cause of Action

specifically asserted a violation of “essential due process

protections for aliens.”

The Second Cause of Action asserted that denial of

expedited processing of Hajro’s Freedom of Information Act

request impaired Hajro’s “substantial due process rights . . .

to a fair hearing” under the immigration statutes.

The Third Cause of Action alleged that the failure to

provide Hajro the requested material within 20 days violated

the Freedom of Information Act and its implementing

regulation.

The Fourth Cause of Action alleged a violation of the

notification requirement of “the unusual circumstances which

prevented the agency from processing [Hajro’s] request

within the 20 day statutory limit.” (internal quotation marks

omitted).

The Fifth Cause of Action alleged a pattern or practice of

noncompliance.

The Sixth Cause of Action characterized the agency’s

action as arbitrary, capricious, willful and unreasonable.

HAJRO V. USCIS 41

The Seventh Cause of Action alleged a violation of

Hajro’s “due process rights because [withholding the

requested documents] prevented [Hajro’s] attorney from

adequately preparing his brief on appeal,” in violation of

Hajro’s “right to a fair hearing and fundamental fairness.”

The Eighth Cause of Action alleged a violation of the

“Fifth Amendment guarantee of Equal Protection” by use of

a policy that “creates two classes of aliens.”

The Ninth and final Cause of Action alleged that

implementation of a new policy for processing document

requests without notice and an opportunity for comment

violated the Administrative Procedure Act.

The Prayer For Relief generally tracked the Causes of

Action. Notably, no prayer for relief reflected any claim due

to injury to Mayock separately as an attorney.

Similarly, Mayock’s declaration, submitted as part of the

summary judgment proceedings, focused on Freedom of

Information requests made on behalf of his clients. Not one

hint of injury to Mayock or to his practice was contained in

his declaration.1

Contrary to the majority opinion’s recharacterization of

his claims, Mayock has asserted exclusively harm to his

clients, primarily from failure to adhere to the Settlement

1

The majority espouses the view that Mayock alleged a pattern or

practice claim in his own right. See Majority Opinion, p. 33 n.15.

However, as noted above, no such claim is asserted in the First Amended

Complaint or Mayock’s declaration. Tellingly, the majority resorts to

reliance on the Answering Brief for support for this proposition. See id.

42 HAJRO V. USCIS

Agreement. Curiously, the majority opinion acknowledges

that “Mayock is not seeking to enforce the statutory mandate

to provide timely [Freedom of Information Act] disclosures

itself . . .” Majority Opinion, p. 25. Rather, the majority

recognizes, Mayock “seeks enforcement of his own private

agreement with a federal agency related to [Freedom of

Information Act] requests. . . .” Id. But the majority has

concluded, and I agree, that the district court cannot enforce

the Settlement Agreement. See Majority Opinion, p. 20. If

the claims Mayock seeks to enforce are unenforceable, how

does he have standing?

In any event, the record in the district court does not

reflect any alleged harm to Mayock other than indirectly

through his clients. The majority theorizes that “delayed

[Freedom of Information Act] requests inhibit [Mayock’s]

ability to build a theory of the case or put forth a defense . . .”

Majority Opinion, p. 32. But any resulting harm would be to

Mayock’s clients, not to Mayock. The majority also

hypothesizes that Mayock could be “expose[d] to legal

malpractice claims and loss of reputation. . . .” Id. Besides

the fact that these assertions appear nowhere in the district

court record, the notion that Mayock may encounter such

harm is the type of “conjectural or hypothetical” interest the

Supreme Court has held to be insufficient to support standing.

Lujan, 504 U.S. at 560.

Speculation that Mayock may eventually establish first-

party standing based on unsubstantiated harm to his ability to

represent his clients is entirely contrary to the position

Mayock advocated before the district court. In his opposition

to the government’s motion to dismiss, Mayock maintained

that he had standing as a party to the Settlement Agreement,

“a member of the public,” and “as a lawyer on behalf of his

HAJRO V. USCIS 43

injured clients.” Opposition To Motion To Dismiss, January

19, 2009, p. 9. Mayock further asserted that “a lawyer has

standing to sue on behalf of his injured clients” and that he

had “standing to bring a pattern and practice lawsuit alleging

that Defendants routinely exceed the twenty day legal

response period in [the Freedom of Information Act] on

behalf of his injured clients.” Id. at 10 (emphases added).

Significantly, Mayock countered the government’s reliance

on Gilmore v. U.S. Dept. of Energy, 33 F. Supp. 2d 1184

(N.D. Cal. 1998), a case involving first-party standing, by

asserting that he had third-party standing:

Defendants are correct that Gilmore was not

asserting any third party rights. He was

asserting his own. However . . . the courts

have allowed lawyers to assert the third party

rights of their clients in pattern and practice

cases. Therefore, the third party argument is

a red herring.

Id. at 10–11 (emphasis added). Additionally, Mayock

emphasized that:

The Complaint states that Plaintiff Mayock

has filed several [Freedom of Information

Act] requests on behalf of his clients seeking

copies of their alien registration files and it

has taken more than twenty days for

Defendants to produce the records in those

cases. . . . As Plaintiff Mayock’s clients’

[Freedom of Information Act] requests are

processed in an untimely manner, they suffer

an injury which can be redressed by an

injunction. Because Plaintiff Mayock is an

44 HAJRO V. USCIS

attorney, he has standing to seek this redress

by means of a pattern and practice lawsuit.

Id. at 11 (emphases added). Because Mayock relied on the

First Amended Complaint in asserting third-party standing to

file a pattern and practice claim on behalf of his clients, it is

inappropriate to suggest reinvention of his claim to establish

standing on remand. See Yamada v. Snipes, 786 F.3d 1182,

1203–04 (9th Cir. 2015) (“As with all questions of subject

matter jurisdiction except mootness, standing is determined

as of the date of the filing of the complaint. . . .”) (citation

omitted).

Contrary to the majority’s approach, Mayock’s

inadequate assertion of third-party standing requires dismissal

of his asserted claim, and precludes any further development

based on newly minted and speculative theories premised on

first-party standing. See La Asociacion de Trabajadores de

Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th

Cir. 2010) (holding that a party “may not effectively amend

its Complaint by raising a new theory of standing” at the

summary judgment stage) (citation omitted). As the majority

concedes, Mayock failed to present any evidence of the

requisite personal harm for standing, which is unsurprising

because he totally relied on third-party standing in the district

court proceedings. See Majority Opinion, pp. 34–35; see also

Opposition To Motion To Dismiss, pp. 9–10. A remand for

re-pleading purposes is particularly inappropriate given the

majority’s recognition that the articulated standing

“requirements are not novel” and that “[t]his standard

packages our own precedent” and that of the Supreme Court.

Majority Opinion, p. 29. See La Asociacion de Trabajadores

HAJRO V. USCIS 45

de Lake Forest, 624 F.3d at 1089 (disapproving the delayed

pleading of a new theory of standing).2

I would reverse the district court’s ruling that Mayock had

standing to pursue an action in his own right, and remand for

dismissal.

In conclusion, I agree that we have jurisdiction over this

appeal, that the government’s premature appeal did not

preserve its challenge to entry of the permanent injunction,

that the district court did not retain jurisdiction to enforce the

settlement agreement, and that Hajro’s claims are moot. I

respectfully disagree that Mayock has standing. I would

reverse and remand for dismissal of all claims.

2

The majority seeks acknowledgment that we granted Mayock standing

in a FOIA case twenty-four years ago. See Majority Opinion, p. 33, n. 15.

It is notable that the majority concedes that Mayock’s claims were made

in his capacity as a lawyer. See id. More importantly, perhaps twenty-

four years ago, Mayock’s complaint was adequate. Today it is not. See

Bell Atlantic v. Twombly, 550 U.S. 544, 556–57 (2007) (setting forth

pleading standards under Rule 8); see also Ashcroft v. Iqbal, 556 U.S. 662

(2009) (explaining that a complaint must allege plausible claims and not

conclusory statements). As the majority recognizes, Mayock’s prayer for

relief was on behalf of his clients, not himself. See Majority Opinion,

p. 33, n.15 (“Mayock prays for timely FOIA requests so that he can

adequately represent his clients.”).