Vaz v. Neal

• Citation: 33 F.4th 1131
• Decision Date: 09 May 2022
• Docket Number: 21-15913
• Parties: Prymas Nazreth VAZ, Plaintiff-Appellant, v. David NEAL, in his official capacity, Director of Executive Office for Immigration Review; Jill L. Anderson, in her official capacity as General Counsel for the Executive Office for Immigration Review, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

33 F.4th 1131

Prymas Nazreth VAZ, Plaintiff-Appellant,

v.David NEAL,^* in his official capacity, Director of Executive Office for Immigration Review; Jill L. Anderson, in her official capacity as General Counsel for the Executive Office for Immigration Review, Defendants-Appellees.

No. 21-15913

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 2022 Las Vegas, Nevada

Filed May 9, 2022

Scott A. Emerick (argued), Bolour / Carl Immigration Group APC, Los Angeles, California; Jon E. Garde (argued), Immigration Law Office of Jon Eric Garde & Associates, Las Vegas, Nevada; for Plaintiff-Appellant.

Elizabeth O. White (argued), Appellate Chief; Brianna Smith, Assistant United States Attorney; Christopher Chiou, Acting United States Attorney; United States Attorney's Office, Reno, Nevada; for Defendants-Appellees.

Before: Andrew J. Kleinfeld, D. Michael Fisher,^** and Mark J. Bennett, Circuit Judges.

OPINION

BENNETT, Circuit Judge:

The Executive Office for Immigration Review (EOIR), an agency within the Department of Justice, maintains an Attorney Discipline Program. Under the Program, Prymas Nazreth Vaz filed a complaint against his former attorney. In this suit, Vaz seeks to compel the EOIR to complete its investigation of Vaz's complaint against his former attorney and to report its investigation results to Vaz.¹ He relies on the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act (APA), 5 U.S.C. § 706(1).

The district court granted the EOIR's motion to dismiss, finding that it lacked jurisdiction under both the Mandamus Act and the APA. It alternatively found that relief was inappropriate even if it had jurisdiction. We have jurisdiction under 28 U.S.C. § 1291 and affirm. The district court erred in determining that it lacked jurisdiction under the APA. But we affirm its denial of relief because the EOIR's delay was not unreasonable under the APA. Following Ninth Circuit precedent, we choose to conclude our analysis there, and do not reach the Mandamus Act. See R.T. Vanderbilt Co. v. Babbitt , 113 F.3d 1061, 1065 (9th Cir. 1997).

I

The EOIR's Attorney Discipline Program regulates the conduct of attorneys and other representatives who practice before the Board of Immigration Appeals and immigration courts. As part of the Program, individuals can submit complaints, which the EOIR investigates. See 8 C.F.R. § 1003.104. Although complaints are normally reviewed in the order in which they are received, investigation timelines depend on several factors, including, for example, when the EOIR receives necessary information. The EOIR may prioritize complaints, and it usually gives priority to those involving egregious conduct or practitioners who are the subject of multiple complaints.

The Program is headed by the EOIR's Disciplinary Counsel and is staffed with two attorneys (the Disciplinary Counsel and one Assistant Disciplinary Counsel), one investigator, and two individuals who provide administrative support. In 2018, the EOIR received about 579 complaints; in 2019, it received about 684 complaints; and by the end of March 2020, it had received about 417 complaints that calendar year. In June 2020, the EOIR was still processing complaints from 2017.

Vaz filed his complaint with the EOIR in May 2018. He alleged that his prior attorney, Sonjay Sobti, had engaged in professional misconduct. Vaz hired Sobti after the Ninth Circuit had upheld the denial of his asylum application. According to Vaz, from about 2006 to 2016, Vaz paid Sobti about $10,000 each year to handle his immigration case, though Sobti failed to update Vaz on the status of his case. Sobti allegedly also started immigration proceedings on Vaz's behalf without consulting Vaz and forged Vaz's signature on various documents.

The EOIR determined that Vaz's complaint warranted further review, and it sent Vaz a letter stating that it would investigate his complaint and inform him of the results. The EOIR also decided that it would address Vaz's complaint "in the order it was received and as resources permit," and that it would not give it priority.² This decision was partly based on the fact that Vaz had also filed a complaint with the State Bar of California, which dismissed it based on "insufficient evidence."

About two years after Vaz filed his complaint with the EOIR, he sued the EOIR because it had failed to provide him with any updates or inform him of the results of its investigation. Vaz's complaint alleges that the EOIR has duties to investigate his complaint and notify him of the investigation results. He seeks to enforce those alleged duties under the Mandamus Act and the APA. Vaz claims that the results of the EOIR's investigation "could be beneficial" to his immigration proceedings, but he has never claimed that the EOIR's delay is preventing him from pursuing relief in his immigration proceedings.

The EOIR moved to dismiss for lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court granted the motion, finding that it lacked jurisdiction under the Mandamus Act and the APA. The district court alternatively determined that even if it had jurisdiction, relief was unwarranted because the EOIR's delay was not unreasonable, given the EOIR's limited resources. The district court considered evidence outside the complaint—a declaration from the EOIR's Disciplinary Counsel. The district court thus converted the motion to dismiss into a motion for summary judgment. See Anderson v. Angelone , 86 F.3d 932, 934 (9th Cir. 1996).³

Vaz timely appeals.

II.

We review a "dismissal for lack of subject matter jurisdiction de novo. " Alvarado v. Table Mountain Rancheria , 509 F.3d 1008, 1015 (9th Cir. 2007). We treat the district court's alternative determination on the merits as a grant of summary judgment because the district court relied on evidence outside the complaint. See Anderson , 86 F.3d at 934. "This court reviews a district court's grant of summary judgment de novo.... Therefore, when reviewing a grant of summary judgment, this court sits in the same position as the district court and applies the same summary judgment test that governs the district court's decision." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 629–30 (9th Cir. 1987). Summary judgment must be granted if there is no genuine issue as to any material fact, viewing the evidence in the nonmoving party's favor. See id. at 630–31.

III

Because "mandamus relief and relief under the APA are ‘in essence’ the same," when a complaint seeks relief under the Mandamus Act and the APA and there is an adequate remedy under the APA, we may elect to analyze the APA claim only. R.T. Vanderbilt Co. , 113 F.3d at 1065 (quoting Indep. Mining Co. v. Babbitt , 105 F.3d 502, 507 (9th Cir. 1997) ). Here, we choose to analyze Vaz's claim under the APA only, as he has an adequate remedy under the APA. We therefore do not address the district court's analysis of the Mandamus Act claim, including its jurisdictional analysis.

A

The district court found that it lacked subject matter jurisdiction over the APA claim because Vaz had failed to show that he could meet the requirements for obtaining relief under the APA. But the requirements for obtaining relief under the APA go to the merits, not to subject matter jurisdiction. See Plaskett v. Wormuth , 18 F.4th 1072, 1082 (9th Cir. 2021) ("Any deficiencies as to the APA claim go to the merits of that cause of action rather than to the subject matter jurisdiction of the court to consider it."). Thus, the district court erred in treating the requirements for obtaining relief under the APA as jurisdictional.

Subject matter jurisdiction over an APA claim rests on the federal question statute, 28 U.S.C. § 1331. Id. at 1082 n.5. So the question is whether Vaz's APA claim "aris[es] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Vaz alleges that he is entitled to relief under the APA, a federal statute, because the EOIR failed to perform its duties under federal regulations within a reasonable time. Vaz's APA claim therefore arises under the laws of the United States, and the district court had subject matter jurisdiction.

B

Under the APA, a court may "compel agency action ... unreasonably delayed." 5 U.S.C. § 706(1). But "a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. " Norton v. S. Utah Wilderness All. , 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Thus, a court may compel agency action under the APA when the agency (1) has "a clear, certain, and mandatory duty," Plaskett , 18 F.4th at 1082, and (2) has unreasonably delayed in performing such duty, see 5 U.S.C. § 706(1).

Vaz argues that, under 8 C.F.R. § 1003.104(b), the EOIR has clear, mandatory duties to investigate his complaint and to report its investigation results to him. We hold that the EOIR has a mandatory duty to investigate but has no duty to report its investigation results to complainants.

Section 1003.104(b) provides:

Preliminary inquiry. Upon receipt of a disciplinary complaint or on its own initiative, the EOIR disciplinary counsel will initiate a preliminary inquiry.... If the EOIR disciplinary counsel determines that a complaint is without merit, no further action will be taken. The EOIR disciplinary counsel may, in the disciplinary counsel's discretion, close a preliminary inquiry if the complainant fails to comply with reasonable requests for assistance, information, or documentation. The complainant and the practitioner shall be notified of any such determination in writing.

8 C.F.R. § 1003.104(b).

The regulation directs that the EOIR "will initiate a preliminary inquiry." Id. (emphasis added). "The word ‘will,’ like the word ‘shall,’ is a mandatory term, unless something about the context in which the word is used...