Blajro v. Citizenship

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 , 114 S.Ct. 1673 , 128 L.Ed.2d 391 (1994) applies retroactively to the 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 , 114 S.Ct. 1673 . Having determined the lack of jurisdiction on that basis, I see no need to wade into the sovereign immunity issue. Finally, I agree that Mir-sad 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 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (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).

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 Haj-ro’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 prevent *1109 ed 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.

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 re-characterization of his claims, Mayock has asserted exclusively harm to his clients, primarily from failure to adhere to the Settlement Agreement. Curiously, the majority opinion acknowledges that “May-ock is not seeking to enforce the statutory mandate to provide timely [Freedom of Information Act] disclosures itself ...” Majority Opinion, p. 1101. Rather, the majority recognizes, Mayock “seeks enforcement of his awn 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, pp. 1098-99. If the claims May-ock 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. 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 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 *1110 (emphases added). Significantly, Mayock countered the government’s reliance on Gilmore v. United States 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 May-ock 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 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 Traba-jadores 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, p. 1106; 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. 1103. See La Asociacion de Trabajadores 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 *1111 its challenge to entry of the permanent injunction, that the district court did not retain jurisdiction to enforce the settlement agreement, and that Hajró’s claims are moot. I respectfully disagree that Mayock has standing. I would reverse and remand for dismissal of all claims.

. The majority espouses the view that Mayock alleged a pattern or practice claim in his own right. See Majority Opinion, p. 1105 n. 15. However, as noted above, no such claim is asserted in the First Amended Complaint or Mayock’s declaration. The majority's reference to Paragraph 66 of the First Amended Complaint, see id., is unavailing. That paragraph contains the single conclusory statement quoted by the majority, with absolutely no reference to individual injury to Mayock. See Ashcroft v. Iqbal, 556 U.S. 662, 678 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009) (explaining that a complaint containing only conclu-sory statements does not assert a plausible claim for relief).

. The majority seeks acknowledgment that we granted Mayock standing in a FOIA case twenty-four years ago. See Majority Opinion, p. 1105, 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 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007) (setting forth pleading standards under Rule 8); see also Iqbal, 556 U.S. at 678 , 129 S.Ct. 1937 (explaining that a complaint must assert plausible claims and not conclusory statements).