Opinion
Civil Action No. 3:04-CV-2691-D.
August 11, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference, filed July 26, 2005, Plaintiff's Motion for New Trial, filed July 25, 2005, was referred to this Court for hearing, if necessary, and for determination or recommendation. Also before the Court is Federal Defendants' Response in Opposition to Plaintiff's Motion for New Trial, filed August 3, 2005. For the following reasons, the Court is of the opinion that Plaintiff's motion should be DENIED.
I. BACKGROUND
On May 24, 2002, Lilia Petrenko-Gunter ("Plaintiff"), a citizen of Russia, entered the United States under a K-1 visa as the fiancée of Harold Glenn Gunter ("Gunter"), a United States citizen. (Compl. at ¶ 1.) Plaintiff and Gunter were married and, on February 26, 2003, Plaintiff filed an application for adjustment of status to that of lawful permanent resident. Id. at ¶ 3. During an interview held on July 1, 2003, Gunter, as Plaintiff's sponsor, was asked to provide either federal income tax returns for the previous three years or evidence establishing his exemption from filing federal income tax returns. (Compl. at ¶ 4; MTD Mem. at 2-3.) Such evidence was required to prove that Plaintiff would not become a public charge. (Compl. at ¶ 5.) In response, Gunter provided an affidavit stating that he was a "Non-taxpayer," had no revenue taxable as income, and was not required to file tax returns. Id. at ¶ 32. Additional proof of financial responsibility was mailed to Defendants by Plaintiff's attorney on February 5, 2004. Id. at ¶ 34.On February 24, 2004, Plaintiff's application for adjustment of status was denied on the ground that Plaintiff had not provided the requested documentation. Id. at ¶ 35. Plaintiff then filed a motion to reopen, alleging that the requested documents had been provided and including an affidavit of support by a joint sponsor, which attached the joint sponsor's federal income tax returns for the previous three years, and an affidavit showing Gunter's income. Id. at ¶ 36. Plaintiff's motion to reopen consideration of her application for adjustment of status was granted on May 17, 2004. Id. at ¶ 38. On November 1, 2004, Plaintiff's application was again denied. Id. at ¶ 44. The ground for the denial was Plaintiff's failure to provide evidence of Gunter's exemption from filing federal income tax reports. Id.
Plaintiff filed the instant lawsuit on December 21, 2004, seeking injunctive relief and an award of damages. (Compl. at ¶¶ 52, 56, 57.) Plaintiff asserted jurisdiction under 5 U.S.C. §§ 7027-06 and 28 U.S.C. §§ 1331, 1361, 2201, and 2202. Id. at ¶ 9. On June 17, 2005, this Court recommended that the District Court grant Defendants' motion to dismiss the claims against them in their official capacities for lack of jurisdiction. Plaintiff filed no objections to the recommendation and, on July 18, 2005, the District Court adopted the findings, conclusions, and recommendation, and granted Defendant's motion to dismiss. On July 25, 2005, Plaintiff filed the instant Motion for New Trial. The District Court construed the motion as a motion to reconsider the District Court's July 18, 2005 order adopting this Court's findings, conclusions, and recommendation and referred the matter for recommendation or determination.
II. ANALYSIS
A. Rule 54(b) Standard for Reconsideration of Interlocutory Orders
A court "has the inherent power to modify, vacate, or set aside interlocutory orders when the interests of justice require and will `often accept such motions in the interest of substantial justice.'" Group Dealer Serv., Inc. v. Southwestern Bell Mobile Sys., 2001 WL 1910565, *3 (W.D. Tex. Sept. 19, 2001) (citing FED. R. CIV. P. 54(b) and Baustian v. Louisiana, 929 F. Supp. 980, 981 (E.D. La. 1996) (noting that courts often accept motions for reconsideration of judgments "as being in the interest of substantial justice"). Motions for reconsideration have a narrow purpose and are only appropriate to allow a party to correct manifest errors of law or fact or to present newly discovered evidence. Texas Instruments, Inc. v. Hyundai Elec. Indus., Co., 50 F. Supp. 2d 619, 621 (E.D. Tex. 1999) (citations omitted); cf. California v. Summer Del Caribe, Inc., 821 F. Supp. 574, 577 (N.D. Cal. 1993) (finding that reconsideration of an interlocutory order may be justified "on the basis of an intervening change in the law, or the need to correct a clear error or prevent manifest injustice"). Reconsideration has been permitted in cases where new evidence was discovered or where there was a change in the law. See Acme Printing Ink Co. v. Menard, Inc., 891 F. Supp. 1289, 1295 (E.D. Wis. 1995) (granting reconsideration where case had remained pending before court for several years, and in the interim, new evidence was discovered and case law changed); Summer Del Caribe, Inc., 821 F. Supp. at 574, 578 (granting reconsideration where the court's ruling on an issue was inconsistent with decisions of other courts addressing same issue as well as with Congressional intent); Gridley v. Cleveland Pneumatic Co., 127 F.R.D. 102, 103-104 (M.D. Pa. 1989) (granting reconsideration on basis of newly discovered evidence). A ruling should only be reconsidered where the moving party presents substantial reasons for requesting reconsideration. Baustian, 929 F. Supp. at 981; Louisiana v. Sprint Communications Co., 899 F. Supp. 282, 284 (M.D. La. 1995).
In the instant case, Plaintiff's motion for reconsideration sets forth no newly discovered evidence, alleges no intervening change in the law, and does not truly claim clear error or manifest injustice. As discussed more fully below, Plaintiff merely attempts to distinguish the cases cited by this Court in its recommendation in a second attempt to argue the same points it argued in response to the original motion to dismiss.
B. Applicability of Cited Precedent to Assertion of Jurisdiction under the APA
Plaintiff contends that the Court erred in declining to exercise jurisdiction pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 702, et seq., over her claims against Defendants in their official capacities. In particular, she states that Cardoso v. Reno, 216 F.3d 512 (5th Cir. 2000), is inapplicable to her assertion of jurisdiction under the APA because she does not seek to enjoin removal and because Cardoso was not decided under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 702- 706.
First, the fact that Plaintiff does not seek to enjoin removal is irrelevant. Although Plaintiff has attempted to artfully plead her case, a reading of the complaint clearly shows that Plaintiff seeks court review of the denial of her application for adjustment of status despite her protestations to the contrary.
The Court notes Plaintiff's contention in footnote 2 that "the Magistrate observed in a footnote that if the BCIS adjudicated [Plaintiff's] application for adjustment in accordance with the laws of the United States as requested by Plaintiff, it would be obliged to grant it!" (Mot. at 3, n. 2.) The Court has thoroughly reviewed its recommendation, including the footnotes contained therein. Despite meticulous review, the Court has been unable to find any statement which even remotely implies an opinion as to the outcome of any future adjudication of Plaintiff's application for adjustment of status.
Second, the APA provides that only "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704. In Cardoso, the Fifth Circuit found that the denial of a request for adjustment of status is not a final agency action for which there are no other adequate remedies available. 216 F.3d at 518. Although the plaintiff in Cardoso did not assert jurisdiction under the APA, the general rule is applicable here because both the APA and the statute considered in Cardoso, 8 U.S.C. 1252(d), require a final agency action in order for a court to assert jurisdiction. Because the Fifth Circuit has held that the action complained of in this case is not a final agency action, the APA does not provide this Court with jurisdiction over Plaintiff's claims.
Further, in Afsharzadehyadzi v. Perryman, 214 F. Supp.2d 884, 888 (N.D. Ill. 2002), the court directly addressed jurisdiction over a similar claim brought under the APA. In that case, the court noted that a denial of adjustment of status is not a final agency action and held that the plaintiff, who alleged she was denied due process in the review of her application, was required to first exhaust her administrative remedies and then seek review of the denial in the Court of Appeals. Id.
Plaintiff has shown no newly discovered evidence, intervening change in the law, or manifest injustice justifying reconsideration of this issue. Accordingly, the Court RECOMMENDS that Plaintiff's request for reconsideration of the District Court's adoption of the finding that the APA does not afford jurisdiction in this case be DENIED. C. Mandamus Jurisdiction
Plaintiff also asserts that the Court erred in recommending that the District Court find no jurisdiction under the federal mandamus statute, 28 U.S.C. § 1361. (Mot. at 3-4.) Mandamus jurisdiction may be invoked when: (1) the plaintiff has a clear right to the relief sought; (2) the defendants have a clear nondiscretionary duty to perform; and (3) no other adequate remedy is available. See Allied Chemical, 449 U.S. at 35; In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997). Plaintiff states that the finding that another adequate remedy was available to her was plain error. (Mot. at 3.)
In its recommendation, the Court noted that Plaintiff could raise her claims again before an immigration judge when the agency initiates removal proceedings against her and held that this was an adequate remedy. Although Plaintiff disagrees with the adequacy of the remedy because the timing of the commencement of removal proceedings is entirely within the discretion of the agency, the fact remains that she has an avenue of appeal open to her. The Court thoroughly considered Plaintiff's arguments, as presented in her briefing in response to the motion to dismiss, and fully explained its reasoning. Plaintiff does not now provide evidence or argument to establish manifest errors of law or fact upon which the recommendation was based, new evidence, the need to prevent manifest injustice, nor an intervening change in controlling law.
In the context of 8 U.S.C. 1252(d), the Fifth Circuit in Cardoso found that the remedy described was an administrative remedy which must be exhausted prior to an exercise of jurisdiction by the courts. 216 F.3d at 518. Mandamus may only be invoked in extraordinary situations. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, (1980). Because Plaintiff has an adequate remedy available to her, this is not an extraordinary situation permitting an exercise of mandamus jurisdiction.
Accordingly, the Court RECOMMENDS that Plaintiff's request for reconsideration of the District Court's adoption of the finding that mandamus jurisdiction does not exist in this case be DENIED.