here have 2 lawsuit cases, if possible will put on more

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TERRY SOZANSKI, §
§
Plaintiff, §
§
v. § Civil Action No. 3:06-CV-0993-N
§
MICHAEL CHERTOFF, Secretary §
DEPARTMENT OF HOMELAND §
SECURITY, et al., §
§
Defendants. §
ORDER
Before the Court is Defendants Michael Chertoff, Secretary of the Department of
Homeland Security, Eduardo Aguirre, Director of the United States Citizenship and
Immigration Services of the Department of Homeland Security ("USCIS"), Angela Bowers,
District Director of the Dallas Regional Office of the United States Citizenship and
Immigration Services, and Robert S. Muller's, Director of the Federal Bureau of
Investigation ("FBI") (collectively, "Defendants") Motion to Dismiss pursuant Federal Rule
of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and Rule 12(b)(6) for
failure to state a claim upon which relief can be granted [21]. Because investigating and
adjudicating Sozanski's application for adjustment of status to lawful permanent resident ("I-
485 Application") is committed to Defendants' discretion, the Court dismisses Sozanski's
claims.
Case 3:06-cv-00993 Document 32 Filed 12/11/2006 Page 1 of 3
ORDER - PAGE 2
"Jurisdiction is, of necessity, the first issue for an Article III court," for without
jurisdiction, a Court is without legal authority to decide a case. DSMC, Inc., v. Convera
Corp., 349 F.3d 679, 682 (D.C. Cir. 2003) (quotation omitted). Whenever it appears by
suggestion of the parties or otherwise that a court lacks jurisdiction over an action's subject
matter, the court must dismiss the action. FED. R. CIV. P. 12(h)(3). The court should not
grant dismissal unless it appears certain that there is no set of circumstances that would
entitle the plaintiff to relief. Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992).
Sozanski seeks to compel the adjudication of his pending I-485 Application. Sozanski
filed his I-485 Application on May 27, 2005 and claims no action has been taken to date.
Sozanski contends the FBI has unduly delayed completing a background investigation, or
"name check," which has, in turn, resulted in a delay in the USCIS's adjudication of his
application. Pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq.,
and the Mandamus Act, 28 U.S.C. § 1361, Sozanski asks the Court to order Defendants to
perform the FBI name check and complete the adjudication of his application.
Neither the mandamus statute nor the APA bestows jurisdiction upon the Court to
adjudicate Sozanski's claim. "The extraordinary remedy of mandamus under 28 U.S.C. §
1361 will issue only to compel the performance of a clear nondiscretionary duty." Pittston
Coal Group v. Sebben, 488 U.S. 105, 121 (1988) (quotation omitted, emphasis added).
Similarly, judicial review under the APA does not extend to "agency action that is committed
to agency discretion by law." Here, the conduct of Sozanski's name check and the
adjudication of his I-485 Application "are matters solely within [the FBI's and USCIS's]
Case 3:06-cv-00993 Document 32 Filed 12/11/2006 Page 2 of 3
ORDER - PAGE 3
discretion . . . and hence are not reviewable under the Administrative Procedures Act or 28
U.S.C. § 1361." Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1182 (2d Cir. 1978); see also 8
U.S.C. § 1255(a) ("The status of an alien . . . may be adjusted by the Attorney General, in his
discretion, and under such regulations as he may prescribe . . . ."). The Immigration and
Nationality Act section 242(g) bolsters this conclusion, stating that "notwithstanding any
other provision of law, no court shall have jurisdiction to hear any cause or claim by or on
behalf of an alien arising from the decision or action of the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against any alien under this Act."
8 U.S.C. § 1252(g). Accordingly, the Court dismisses Sozanski's claim pursuant to Rule
12(b)(1) for want of jurisdiction.
Signed December 11, 2006.
_________________________________
David C. Godbey
United States District Judge
Case 3:06-cv-00993 Document 32 Filed 12/11/2006 Page 3 of 3





IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON, DIVISION

§
§
Plaintiff §
§ CIVIL ACTION NO.
§
v. §
§
Michael Chertoff, Secretary of the §
Department of Homeland Security §
§
Emilio Gonzalez, Director of the United States §
Citizenship and Immigration Services(USCIS §
§
Robert S. Mueller, Director of the Federal §
Bureau of Investigation(FBI)

Defendants


DEFENDANTS' MOTION TO DISMISS
Defendants move pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss this action for lack of subject matter jurisdiction.

I. MOTION TO DISMISS STANDARD

Rule 12(b)(1) militates the dismissal of an action over which the court lacks subject matter jurisdiction. A motion under Rule 12(b)(1) may be decided on any of three bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996); Fleischer v. United States Department of Veterans Affairs, 955 F. Supp. 731, 733-34 (S.D. Tex. 1997).
A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case. Krim v. pcOrder.Com,Inc., 402 F.3d 489,494(5th Cir.2005). Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss.,143 F.3d 1006 (5th Cir.1998). The burden of establishing subject matter jurisdiction rests with the plaintiff. See F.R.Civ.Proc, Rule 8(a). Metropolitan Life Ins. Co. v.. Taylor,481 U.S. 58,63(1987) St. Paul Reinsurance Co., Ltd., v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); Rodriguez v. Texas Comm'n on the Arts, 199 F.3d 279 (5th Cir. 2000).

II. STATEMENT OF FACTS

For the purposes of this motion, the non-argumentative factual statements made in the plaintiff in her complaint are accepted as true. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).However , her legal statements purportedly establishing subject matter jurisdiction are matters of law which are for the Court to decide.
Williamson v. Tucker, 645 F.2d 404,413(5th Cir. 1981). At item 6 of her complaint, plaintiff contends that this Court has jurisdiction pursuant to 28 U.S.C. Sections 1361(Mandamus Act),2201(Declaratory Judgment Act) as well as 5 U.S.C. Section 701, et.seq.(Adminisrative Procedure Act)(APA). This motion will examine these three purported bases seriatim.


III. LEGAL ANALYSIS
A. Plaintiff's Claims under 28 USC Section 1361(Mandamus)


Mandamus is an extraordinary remedy which will not be entertained absent extraordinary circumstances. Allied Chemical v Daiflan , 449 U.S. 33, 101 S.Ct. 188(1980) . A party must demonstrate that he lacks an adequate alternative means to obtain relief and that his right to the issuance of the writ (of mandamus) is clear and indisputable. Ozec v.. American Council , Inc. 110 F. 3d 1082(5th Cir 1997). Furthermore , by its very terms, the mandamus statute cannot be used to compel a "discretionary" action. Einhorn v. DeWitt, 618 F.2d 347(5th Cir. 1980) Blaney v. U.S. 34 F.3d 509(7th Cir. 1994).
The adjustment of status of persons seeking admission to the United States is governed by Section 1255 of Title 8, U.S.C.That section by its terms is discretionary , allowing for the adjustment of status "in his discretion and under such regulations as he may prescribe..." The exhibits attached to plaintiff's complaint demonstrate that this Court is not presented with a situation in which DHS has failed to act, but rather one in which it is proceeding in a manner with which the plaintiff is dissatisfied. The plaintiff's complaint( see items 9 through 19 pages 3 and 4 of her complaint) evinces close attention to the progress of her pending application. It is being handled like all the many others which are pending before the DHS. The FBI works diligently to complete its required work on backgound checks of the many applicants on a first-in first-out basis, just as it does in FOIA cases. See Eastern Carpet, 430 F.Supp. 2d at p.676. Plaintiff cannot cite any cases in which a court has held that mandamus will lie against the government in such a circumstance. When the FBI completes its investigation , the DHS will adjudicate plaintiff's I-485 application.

In a non DHS/INS context , the recent case of Newsome v. EEOC, 301 F.3d 227,231(5thCir.2002) cert. denied 537 U.S. 1049,123 S.Ct. 660 (2003),underlines that mandamus is not available to review discretionary acts of agency officials(as has earlier been established is the case here). The court held that the nature and extent of the EEOC's investigation into a claim " is a matter within the discretion of that agency". 301 F.3d at 231.
As the action complained of by the plaintiff(the denial of the visa) is by its nature "discretionary" , mandamus will not lie against the government in this case.
This Court has recently so ruled in Ayanbadejo v. Chertoff, ___F.Supp.2d _______, (S.D.Tx. Sept. 21, 2006)(2006 U.S. Dist. LEXIS 67940) (Fed Supp. 2d publication pending). (No subject matter juridsdiction in case where DHS denied visa after sham marriage by petitioner)See also, Mustafa v. Pasquerell, No. Civ. 05-658, 2006 WL 488399, (W.D.Tx. Jan. 10,2006).( The district court acquired no subject matter jurisdiction to order the DHS to adjudicate applicant's case where he was complaining about the duration of time involved).
The Northern District Court has just ruled consistently with this position in Sozanski v. Chertoff, (decision attached as Exhibit 1, issued 12-1-06).


B. Plaintiff's Claims under 28 USC Sections 2201 and 2202(declaratory judgment)

The Declaratory Judgment Act does not serve as an independent basis for the establishment of subject matter jurisdiction . Skelly Oil Co. v. Phillips Petroleum Co. , 339 U.S. 667,671-72(1950). As the other basis for subject matter jurisdiction which plaintiff has asserted as establishing it has been shown to be unavailing in this case, the referenced sections are likewise unavailing pursuant to Skelly.

C. Plaintiff's Claims under 5 USC Section 701 et.seq. (APA)
The APA, like the Declaratory Judgment Act, does not provide an independent basis for subject matter jurisdiction. Califano v. Sanders , 430 U.S. 99, 105,107(1977). Your Home Visiting Nurses v. Shalala, 525 U.S. 449,458,119 S.Ct. 930,935(1999), Saavedra-Bruno v. Albright, 197 F.3d 1153,1157(1999). It bars judicial review if review is "precluded by law", or if the "agency action is committed to agency discretion by law."Id. See 5 U.S.C. Section 701(a)(1) and (2). As before stated, DHS is processing plaintiff's I-485 application as expiditiously as possible. The fact that it is not operating on a schedule to the liking of the plaintiff is unfortunate and even understandable, but it does not establish her right to relief under this section . The DHS will continue to work on plaintiff's application and will adjudicate it once the FBI's background investigation is done. DHS is, in fact precluded by law from operating in any other way.


In Saavedra-Bruno,supra, an alien unsatisfied with agency action sought judicial review of an INS denial of a visa, citing the APA along with the statutory bases cited by the plaintiff in this case. The Court affirmed a District Court which had dismissed for lack of subject matter jurisdiction . The Saavedra Bruno decision also contains an explicative histiory of immigration law which places lawsuits of this type in context. 197 F.3d at pp .1155-57.
Finally, in Your Home Visiting Nurses, supra, dissatisfied home health care providers sought judicial review of HHS denials of their claims. The Court affirmed the lower Courts in ruling that there was no subject matter jurisdiction because plaintiffs had not demonstrated a "clear non-discretionary duty" on the part of the agency which would vest the Court with jurisdiction whether under the mandamus statute or the APA. Norton v. South Utah Wilderness Alliance , 542 U.S. 55, 61,64(2004)






IV. CONCLUSION

The cases cited herein uniformly support the contention that in a case as plaintiff presents here, in which her complaint establishes that DHS's processing of her application to adjust status is a "discretionary" act which, though she be dissatisfied with the pace at which DHS is operating , that this court can have no subject matter jurisdiction. Plaintiffs' complaint should be dismi