The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0026p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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SANKET HASMUKHBAI PATEL; NEHABEN SANKET
│
PATEL,
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Plaintiffs-Appellants, > No. 23-5867
│
│
v. │
│
UR M. JADDOU, Director, U.S. Citizenship and │
Immigration Services, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 1:22-cv-00163—Gregory N. Stivers, District Judge.
Decided and Filed: February 9, 2024
Before: SUTTON, Chief Judge; SUHRHEINRICH and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Bradley B. Banias, BANIAS LAW, LLC, Charleston, South Carolina, for
Appellants. Fizza Batool, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
_________________
OPINION
_________________
SUTTON, Chief Judge. Sanket and Nehaben Patel applied for visas to stay in the United
States on a temporary basis. After fourteen months with no news, they sued the Director of U.S.
Citizenship and Immigration Services for failing to process their applications. When the agency
granted their visas, the Director filed a motion to dismiss the case for mootness and attached an
No. 23-5867 Patel, et al. v. Jaddou Page 2
exhibit showing that the applications had been granted. Realizing that she had not filed the
exhibit under seal, the Director moved to seal the exhibit shortly thereafter. The Patels accepted
one victory (the granting of their temporary visas) and sought another (statutory penalties for the
Director’s disclosure of their personal information). The district court granted the Director’s
motion to dismiss the case and denied the Patels’ motion for civil penalties. We affirm.
I.
Mr. and Mrs. Patel are Indian citizens who applied to stay in the United States on a
temporary basis through the “U visa” program. Congress reserves these visas for victims of
crimes in the United States who have suffered substantial physical or mental abuse. 8 U.S.C.
§ 1101(a)(15)(U)(i). Mr. Patel qualified for a U visa after two men in Arizona assaulted him and
after he assisted in the investigation. See id. As his spouse, Mrs. Patel was eligible for the visa
as well. See id. § 1101(a)(15)(U)(ii)(II); 8 C.F.R. § 214.14(f)(1).
On December 12, 2022, after waiting fourteen months to obtain the visas, the couple sued
Ur Jaddou, the Director of U.S. Citizenship and Immigration Services. They alleged that the
agency violated the Administrative Procedure Act by unreasonably delaying the U visa
determinations. Their unsealed complaint revealed that they sought the U visas due to
Mr. Patel’s assault, disclosed their personal identifying information, and explained why they
qualified for the visas.
Two months later, the agency granted visas to the Patels, prompting the Director to file a
motion to dismiss the Patels’ lawsuit as moot. In doing so, she attached an exhibit that verified
that the agency had granted the Patels’ visa applications.
There was just one problem. A federal law prohibits the disclosure of information
relating to noncitizens who are U visa applicants and recipients. 8 U.S.C. § 1367(a)(2).
Even though the electronic filing permitted remote access only to the parties to the case, the
Director immediately contacted the district court and asked the case administrator to seal
the exhibit the next day. See W.D. Ky., Gen. Order 16-03 § 15.1(a)–(b); Fed. R. Civ. P. 5.2(c).
She formally moved to seal the exhibit that same day. The Patels responded to the motion to seal
by seeking $20,000 in penalties for the Director’s failure to seal the exhibit at the outset.
No. 23-5867 Patel, et al. v. Jaddou Page 3
See 8 U.S.C. § 1367(c).
The district court granted the Director’s motions to dismiss for mootness and to file the
motion under seal. But it denied the Patels’ motion for civil penalties on the ground that any
disclosure was not willful.
II.
At stake in this appeal is one question: Did the Director “willfully” violate § 1367 when
she filed the unsealed exhibit?
The Immigration and Nationality Act of 1952 controls the immigration, naturalization,
and exclusion of aliens. 8 U.S.C. § 1101 et. seq. Congress amended the Act in 1996 to add a
provision that limits the disclosure of noncitizens’ sensitive data. Id. § 1367. Among other
things, § 1367 prohibits “disclosure” of identifying “information” about the victims of crimes,
including the release of information about “an alien who is the beneficiary of an application” for
a U visa. Id. § 1367(a)(2). To deter violations, the statute has a penalty provision for willful
disclosures of this information:
Anyone who willfully uses, publishes, or permits information to be disclosed in
violation of this section or who knowingly makes a false certification under
section 239(e) of the Immigration and Nationality Act shall be subject to
appropriate disciplinary action and subject to a civil money penalty of not more
than $5,000 for each such violation. Id. § 1367(c).
The prohibition has eight exceptions. See id. § 1367(b). One of them says that
§ 1367(a)(2) “shall not be construed as preventing disclosure of information in connection with
judicial review of a determination in a manner that protects the confidentiality of such
information.” Id. § 1367(b)(3).
This statutory context reveals at least three ways to think about the Patels’ claim. One
possibility is that the claim fails because the Director’s litigation filing fits within the “judicial
review” exception. See id. The Patels filed an action under the APA to obtain prompt review of
their visa applications. The Director’s exhibit proved that the agency had completed its review,
showed that the agency had granted the application, and demonstrated that the Patels’ action no
longer presented a live controversy. It is difficult to see how the Director could have
No. 23-5867 Patel, et al. v. Jaddou Page 4
demonstrated this jurisdictional defect without these documents. Adding force to this approach
is a 2007 amendment to the Federal Rules of Civil Procedure. Under Civil Rule 5.2, “access to
an electronic file” is limited in immigration cases. Fed. R. Civ. P. 5.2(c). Only “the parties and
their attorneys may have remote electronic access to any part of the case file, including the
administrative record.” Id. 5.2(c)(1).
But two realities cloud this approach. One is that Civil Rule 5.2 limits only remote
access to the pleadings. It says that any non-party (“any other person”) “may have electronic
access to the full record at the courthouse.” Id. 5.2(c)(2). While it may be doubtful that
assailants from Arizona will make their way to a Kentucky federal courthouse (and perhaps more
doubtful that criminals or their comrades will enter courthouses to facilitate new crimes), the fact
remains that Civil Rule 5.2 does not clearly prohibit access to non-parties. The second issue is
the language of the statutory exception itself. It permits “judicial review” disclosures “in a
manner that protects the confidentiality of such information.” 8 U.S.C. § 1367(b)(3). That
language suggests, though we need not resolve the point, that eligibility for the exemption
requires the Director and other parties to file such pleadings under seal. Given this uncertainty
and other more-straightforward grounds for resolving this appeal, we see no need to resolve the
appeal on this basis.
What of the possibility that the Director’s filing of the exhibit does not rise to the level of
a cognizable “disclosure”? Long before the Director filed the exhibit, the Patels filed their
complaint. In this unsealed document, the Patels revealed their personal information, their
application status, and every other piece of material information in the Director’s filing that they
now target. How on this record could the Director be responsible for a public disclosure that the
Patels had already made? There is force to the point. But because the parties have not fully
joined the issue, we will turn to the ground on which the district court relied.
Even assuming the penalty provision applies to restricted access filings and even
assuming the Patels are not responsible for the initial disclosure of this information, any
disclosure was not “willful[].” Id. § 1367(c). The parties agree that whatever willful means in
this setting, it does not extend to negligence. We agree as well. The word “willful” usually
refers to action that is “intentional, or knowing, or voluntary, as distinguished from accidental.”
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Willful, Black’s Law Dictionary (6th ed. 1990); see Negligence, Black’s Law Dictionary, supra
(“[Negligence] is characterized chiefly by inadvertence, thoughtlessness, inattention, and the
like,” as opposed to “willfulness”).
This was not a willful disclosure and at worst amounted to negligence, if even that.
Recall that the ostensibly covered information had already been revealed in the Patels’ unsealed
complaint. Recall that the complaint and exhibit were filed on a restricted access filing system.
See W.D. Ky., Gen. Order 16-03 § 15.1(a)–(b); Fed. R. Civ. P. 5.2(c). Recall that the Director
soon realized that the exhibit was not filed under seal. Recall that her attorney promptly called
the court, and the court immediately sealed the exhibit. Recall that the Director promptly filed a
motion to place this exhibit under seal. On this record, this was not a willful disclosure. “A
simple mistake does not on its own constitute willfulness.” Garner v. Lambert, 345 F. App’x 66,
73 (6th Cir. 2009). While debates linger over whether willfulness includes “recklessness,” the
courts tend to be of one mind that it does not include negligence. See Armalite, Inc. v. Lambert,
544 F.3d 644, 647–48 (6th Cir. 2008) (noting that our circuit and five others have declined to
find negligence sufficient to establish a “willful” violation of a statute); Calderone v. United
States, 799 F.2d 254, 260 (6th Cir. 1986) (acknowledging that “conduct amounting to no more
than negligence is not willful” for the purposes of violating a statutory duty); cf. Safeco Ins. Co.
of Am. v. Burr, 551 U.S. 47, 57 (2007).
Before concluding, it is worth pointing out two arguments that the Director does not
make. She does not argue that there is no private right of action to enforce the penalty provision,
as is generally required under federal law. See Alexander v. Sandoval, 532 U.S. 275, 286–87
(2001). And she does not argue that, to the extent that the Patels’ complaint should be read as an
action brought under the Administrative Procedure Act, the penalty provision likely applies to
the responsible federal employee alleged to have willfully disclosed the information, not the
government itself.
We affirm.