Hu v. United States Department of Homeland Security et al

Filing 14

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion to dismiss is DENIED. ECF No. 8 . However, this case is STAYED pending further order of the Court. IT IS FURTHER ORDERED that, no later than 14 days after final resolution of the class claims in Nio v. U.S. Dept of Homeland Sec., 323 F.R.D. 28 (D.D.C. 2017), the parties shall confer and Defendants shall file a notice advising the Court of the status of the case, any appropriate motion as to lifting of the stay, and a jo int proposed schedule for the remainder of the litigation, if any. IT IS FURTHER ORDERED that this case shall be deemed closed administratively, for statistical purposes only, subject to reopening upon lifting of the stay or other appropriate Order. Signed by District Judge Audrey G. Fleissig on March 12, 2018. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JIAMING HU,
Plaintiff,
vs.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Defendants.

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Case No. 4:17-cv-02363-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ motion to dismiss (ECF No. 8) as a
matter of judicial economy because Plaintiff is a member of a certified class action
lawsuit in the United States District Court for the District of Columbia: Nio v. U.S. Dep’t
of Homeland Sec., 323 F.R.D. 28 (D.D.C. 2017). For the reasons set forth below,
Defendants’ motion to dismiss will be denied, but the Court will stay this case pending
resolution of the Nio class action.
BACKGROUND
Jiaming Hu, a citizen of China who is residing in Missouri, filed this request for a
writ of mandamus on September 6, 2017. The complaint names the United States
Department of Homeland Security (“DHS”), the United States Citizenship and
Immigration Services (“USCIS”), and various federal officials as Defendants. Plaintiff
seeks an order from this Court compelling Defendants to adjudicate his application for
naturalization pursuant to 8 U.S.C. § 1447(b), which states that if there is a failure to

make a determination on an applicant’s request for naturalization before the end of the
120-day period after the applicant’s examination is conducted, the applicant may apply to
the United States district court for the district in which the applicant resides for a hearing
on the matter, and that such a court has jurisdiction over the matter.
According to the complaint, at some point before September 15, 2016, Plaintiff, a
citizen of China, enlisted in the United States Army under the Military Accessions Vital
to the National Interest (“MAVNI”) program to serve as a non-citizen soldier in the
Selected Reserve. The MAVNI program is designed to allow the Department of Defense
(“DOD” or “DoD”) to recruit non-U.S. citizens with critical language and/or medical
skills that it deems to be “vital to the national interest.” ECF No. 1.
On September 15, 2016, Plaintiff applied for naturalization pursuant to 8 U.S.C.
§ 1440, which allows for the naturalization of aliens who serve honorably in the Selected
Reserve or in an active-duty status in the armed forces of the United States during any
period in which the Armed Forces of the United States are or were engaged in military
operations involving armed conflict with a hostile foreign force. Plaintiff appeared for
his biometrics (fingerprinting and photographing) at the USCIS Application Support
Center in St. Louis, MO. On April 13, 2017, the USCIS headquarters issued a guidance,
instructing field offices to hold Selected Reserve naturalization applications for MAVNI
applicants while the USCIS determined whether a MAVNI recruit drilling with the
Delayed Training Program was “serving honorably as a member of the Selected Reserve
of the Ready Reserve or in an active-duty status” within the meaning of § 1440. ECF No.
8. Shortly thereafter, on April 17, 2017, Plaintiff was interviewed by the USCIS at its
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Missouri Field Office, and his case was recommended for approval. As a member of the
Selected Reserve, however, Plaintiff’s application was included in the hold1 issued on
April 13, 2017. ECF No. 8.
On May 24, 2017, while Plaintiff’s application was on hold and before the instant
suit was filed, ten foreign national soldiers who had also enlisted in the Selected Reserve
through the MAVNI program and filed naturalization applications pursuant to 8 U.S.C. §
1440, filed a class action lawsuit in the District Court for the District of Columbia against
the USCIS and the Department of Defense. See Nio, 323 F.R.D. at 30. The Nio plaintiffs
sought to “compel and enjoin [d]efendants so that they comply with their statutory
obligations pursuant to federal law, including 8 U.S.C. § 1440, to properly and timely act
upon, and to otherwise cease interfering with, the processing of [p]laintiffs’ naturalization
applications.” ECF No. 8.
On July 7, 2017 the USCIS issued an updated guidance stating, in relevant part:
USCIS has determined that the completion of D[o]D background checks is
relevant to a MAVNI recruit’s eligibility for naturalization. As such, all
pending and future MAVNI cases may not proceed to interview, approval,
or oath until confirmation that all enhanced DoD security checks are
complete.
ECF No. 8.
The Nio plaintiffs subsequently amended their complaint on two separate
occasions, seeking to enjoin, inter alia, the July 7, 2017 guidance and to compel USCIS

1

There is some debate as to whether this is, in fact, a “hold,” although it “appears to
have the same effect [as a hold].” See Nio v. U.S. Dep’t of Homeland Sec., 270 F. Supp.
3d 49, 56-57 (D.D.C. 2017).
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to adjudicate the applications. They also sought to certify a class of individuals who
have:
(i)
(ii)
(iii)

(iv)
(v)

Enlisted in the Selected Reserve through the MAVNI program;
Have served honorably in the U.S. military through participation in
at least one Selected Reserve drill period or in an active-duty status;
Have received from the U.S. military executed Form N-426s
certifying their honorable service as members of the Selected
Reserve or in active-duty status;
Have submitted N-400 Applications for Naturalization to USCIS;
and
Have had the processing or final adjudication of their naturalization
applications (including naturalization itself) withheld or delayed
because of (a) a final USCIS processing hold for MAVNIs, (b) a
United States Department of Defense N-426 policy review, (c) a
DoD N-426 recall/decertification policy2, (d) enhanced DoD security
screenings . . . (f) a so-called national security determination, and/or
(g) a so-called military service suitability vetting or determination.

ECF No. 10.
While the Nio amended complaint was under review, Plaintiff filed his complaint
in this Court. In Count One, Plaintiff argues that Defendants, by failing to finally
adjudicate his application for naturalization within the 120 days from the date of his
examination3 as required by 8 U.S.C. § 1447(b), are in violation of the statute. Plaintiff

2

While not mentioned in either party’s motions, the DOD issued a guidance on
October 13, 2017, which stated that the DOD would recall and decertify the Form N-426
for any service member whose accession was prior to that date, and had submitted a
complete application for naturalization to the USCIS that included the Form N-426 and
N-400 but either had not had the application adjudicated or, if so, had not yet been
naturalized, and had not completed the DHS/USCIS Security Screening Requirement.
See Nio, 323 F.R.D. at 31. Based on the record before the Court, this presumably would
have affected Plaintiff.
3

Some federal courts have held that the date of examination is the date of the
applicant’s interview by USCIS. See Shalabi v. Gonzales, No. 4:06CV866 RWS, 2006
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argues that if an applicant has complied with all requirements for naturalization, the
USCIS “shall grant the application” pursuant to 8 C.F.R. § 335.3(a). ECF No. 1.
Count Two alleges that Defendants’ refusal to adjudicate his naturalization
application violates the Administrative Procedure Act, 5 U.S.C. § 706. Plaintiff asserts
that Defendants have unlawfully withheld and/or unreasonably delayed the completion of
his naturalization application, contrary to the plain language of applicable law, including
8 U.S.C. § 1440.
Count Three alleges that the refusal to adjudicate Plaintiff’s application violates
his procedural due process rights. Plaintiff alleges that his compliance with the statutory
and regulatory requirements established in 8 U.S.C. § 1427 and 8 C.F.R. § 316.2 (for
naturalization applicants), and in 8 U.S.C. § 1159 and 8 C.F.R. § 335.3 (for adjustment of
status applicants), vests in Plaintiff a constitutionally protected property and liberty
interest, and that this triggers procedural due process protection, which was violated
when Defendants failed to schedule him for naturalization.
As relief, Plaintiff seeks that this Court assume jurisdiction over this case; order
Defendants to adjudicate Plaintiff’s case immediately or remand the case to Defendants
with an order to do so within a time certain; conduct a hearing pursuant to 8 U.S.C. §
1447(b); and award reasonable attorneys’ fees and costs to Plaintiff.
On October 27, 2017, after Plaintiff filed this complaint, the District Court for the
District of Columbia granted the Nio plaintiffs’ motion for class certification, with the

WL 3032413, at *3 (E.D. Mo. Oct. 23, 2006); Patel v. Gonzales, No. CIV.A.07-83-CVW-NKL, 2007 WL 2811470, at *3 (W.D. Mo. Sept. 24, 2007).
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modification that the class consists of persons who have enlisted in the Selected Reserve
through the MAVNI program prior to October 13, 2017. The Nio class is a nationwide
class certified under Federal Rules of Civil Procedure 23(a), (b)(1)(A), and (b)(2).
Defendants filed this motion to dismiss, without prejudice, on December 12, 2017.
ARGUMENTS OF THE PARTIES
Defendants base their motion to dismiss on preserving judicial economy and
preventing conflicting decisions on relevant issues due to the pending Nio class action
lawsuit, of which they claim Plaintiff is a member. Defendants contend that the primary
purposes of Federal Rule of Civil Procedure 23 are to avoid duplicative litigation and
inconsistent standards. ECF No. 8. Defendants argue that because Plaintiff’s claims will
ultimately seek to challenge USCIS’s policy of withholding adjudication until all DOD
background checks have been completed, Plaintiff’s claims fall squarely within the Nio
class definition, a class from which Plaintiff is unable to opt out.
In response, Plaintiff does not dispute that he is a member of the Nio class.
However, Plaintiff argues that his individual lawsuit should not be dismissed because
doing so would deny him proper jurisdiction under this Court, which he alleges has
jurisdiction under 8 U.S.C. § 1447(b). Plaintiff argues that the statute should be
interpreted according to its plain language, which grants jurisdiction over an applicant’s
naturalization application to the “district court for the district in which the applicant
resides.” ECF No. 10. (citing 8 U.S.C. § 1447(b)).
In reply, Defendants do not dispute that this Court is a proper venue for Plaintiff’s
claims. However, Defendants argue that they are not seeking for Plaintiff’s case to be
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transferred to the District Court for the District of Columbia, but are instead simply
requesting that it be dismissed, without prejudice, pending a decision from the Nio court,
at which time Plaintiff may refile his claim if the Nio decision does not dispose of it.
Defendants also state that they “are not opposed to the Court holding the case in
abeyance or administratively closing it to await a ruling from the Nio court.” ECF No. 12
at 2 n.3.
DISCUSSION
Multiple courts of appeal, including the Eighth Circuit, have held it is not an abuse
of discretion to dismiss a case on the ground that the plaintiff is a member of a parallel
class action. See e.g., Goff v. Menke, 672 F.2d 702, 704 (8th Cir. 1982); Horns v.
Whalen, 922 F.2d 835, 835 & n.2 (4th Cir. 1991); McNeil v. Guthrie, 945 F.2d 1163,
1165-66 (10th Cir. 1991) (finding that individual suits for injunctive and declaratory
relief cannot be brought where a class action with the same claims exists); Bennett v.
Blanchard, 802 F.2d 456, 456 (6th Cir. 1986) (holding that the lower court was correct in
dismissing a case when the plaintiff was also a member in a parallel class action). Since
class members generally “cannot relitigate issues raised in a class action after it has been
resolved, a class member should not be able to prosecute a separate equitable action once
his or her class has been certified.” Goff, 672 F.2d at 704.
This Court also notes that the Nio class was certified under Federal Rules of Civil
Procedure 23(b)(1)(A), because “prosecuting separate actions by or against individual
class members would create a risk of inconsistent or varying adjudications with respect to
individual class members that would establish incompatible standards of conduct for the
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party opposing the class,” and 23(b)(2), because “the party opposing the class has acted
or refused to act on grounds that apply generally to the class, so that final injunctive relief
or corresponding declaratory relief is appropriate respecting the class as a whole.” Nio,
323 F.R.D. at 34. Staying or dismissing Plaintiff’s claim without prejudice, would serve
the purpose of Rule 23 by avoiding this risk, because if the Court were to rule on
Plaintiff’s claims with the Nio case pending, there would be a definite risk of creating
incompatible standards as against the Defendants.
Finally, staying or dismissing this case without prejudice would also be consistent
with the doctrine of comity. The doctrine of comity generally “permits a district court to
decline jurisdiction over an action when a complaint involving the same parties and
issues has already been filed in another district.” Orthmann v. Apple River Campground,
Inc., 765 F.2d 119, 121 (8th Cir. 1985) (citing Pacesetter Systems, Inc. v. Medtronic, Inc.,
678 F.2d 93, 94-95 (9th Cir. 1982)). Although no precise rule has evolved for when there
is a parallel action before another federal district court, “the general principle is to avoid
duplicative litigation.” Brewer v. Swinson, 837 F.2d 802, 804 (8th Cir. 1988) (citing
Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 817 (1976)); see also
Missouri ex rel. Nixon v. Prudential Health Care Plan, Inc., 259 F.3d 949, 953 (8th Cir.
2001) (stating that “the Supreme Court has identified a general policy that duplicative
litigation in federal courts should be avoided) (emphasis removed).
Cases are considered duplicative when the issues in one case “substantially
duplicate those raised by a case pending in another court.” Ritchie Capital Mgmt., L.L.C.
v. BMO Harris Bank, N.A., 868 F.3d 661, 664 (8th Cir. 2017) (quoting Ritchie Capital
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Mgmt., L.L.C. v. Jeffries, 653 F.3d 755, 763 n.3 (8th Cir. 2011)). The standard in such
circumstances does not require that the parties be identical, only that that there be
overlapping issues and parties. Id.
Applying this standard, this Court will stay this case pending a resolution of the
Nio class action. The class certification analysis from the Nio court is especially
instructive. In certifying the Nio class of plaintiffs, the court found that there was
commonality between the members of the class because there are “questions of law or
fact common to the class.” See Fed. R. Civ. P. 23(a)(2). The court noted that the plaintiff
class members “are members enlisted in the Selected Reserve through the MAVNI
program, are serving honorably, have a valid N–426, have an outstanding application for
naturalization being delayed by the DHS/USCIS Security Screening Requirement, and
are subject to some or all of DOD's October 13th Guidance. . . [whose] legal claims
involve the validity of the DHS/USCIS Security Screening Requirement and the October
13th Guidance.” Nio, 323 F.R.D. at 32. The court noted that while there may be some
factual variations among the class members, they do not impact the overarching questions
that are common to the class as a whole, such as: “Do defendants have the legal authority
to implement these policies and practices,” and “[d]o these policies and practices
otherwise violate the Constitution . . . or other applicable law?” Id.
In the present case, although Plaintiff is correct that this Court has jurisdiction
over his claim pursuant to 8 U.S.C. § 1447(b), the Court also has discretion to dismiss
claims that are duplicative of those pending in another jurisdiction. Plaintiff does not
dispute that he is a member of the Nio class, or that his lawsuit is duplicative of the Nio
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class action. However, rather than dismiss Plaintiff’s complaint, the Court will stay this
case pending a resolution of the Nio class action. See, e.g., Ritchie Capital Mgmt., 868
F.3d at 666 (expressing a preference for stays over dismissals “to preserve any claims
that might not be resolved by the parallel proceedings”).
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants’ motion to dismiss is DENIED.
ECF No. 8. However, this case is STAYED pending further order of the Court.
IT IS FURTHER ORDERED that, no later than 14 days after final resolution of
the class claims in Nio v. U.S. Dep’t of Homeland Sec., 323 F.R.D. 28 (D.D.C. 2017), the
parties shall confer and Defendants shall file a notice advising the Court of the status of
the case, any appropriate motion as to lifting of the stay, and a joint proposed schedule
for the remainder of the litigation, if any.
IT IS FURTHER ORDERED that this case shall be deemed closed
administratively, for statistical purposes only, subject to reopening upon lifting of the stay
or other appropriate Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 12th day of March, 2018.

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