The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
MEMORANDUM OPINION AND ORDER
Pursuant to the Mandamus Act and the Administrative Procedure Act, plaintiff Rola Hamandi seeks to compel defendants, who are the heads of various United States government agencies with responsibilities relating to citizenship and immigration, to adjudicate without further delay her pending application for naturalization. Defendants have moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. For the reasons set forth herein, the Court grants the motion with respect to defendant Robert S. Mueller III, Director of the Federal Bureau of Investigation ("FBI"), but it denies the motion as to defendants Michael Chertoff, Secretary of the Department of Homeland Security ("DHS"), and Emilio T. Gonzalez, Director of the United States Citizenship and Immigration Services ("USCIS").
Plaintiff is a citizen and a national of both France and Lebanon. (Pet. for Writ Mandamus ("Pet.") ¶¶ 6, 16.) She has lived in the United States since 1990, and has been a legal permanent resident since October 2, 2001. (Id.)
Defendants are the Secretary of DHS, the Director of USCIS, and the Director of the FBI. USCIS, which is part of DHS, has responsibility for adjudicating citizenship applications, and the FBI performs criminal background checks, including the FBI "name check," with respect to applicants for U.S. citizenship. (Id. ¶ 14.)
Plaintiff filed an application for naturalization (form N-400) with USCIS on July 31, 2006. (Id. ¶ 17.) In May and July 2007, plaintiff contacted USCIS by telephone about the status of her application, but was given no information. (Id. ¶ 18.) On August 16, 2007, upon traveling in person to USCIS's Miami District Office, plaintiff was told that her application was delayed because the required FBI name check had not yet been completed. (Id.) The Office followed up with a letter dated September 15, 2007, in which it stated that "[a] check of our records establishes that your case is not yet ready for decision, as the required investigation into your background remains open." (Id. Ex. 4.) In addition, USCIS failed to schedule plaintiff for the requisite interview and test of her language abilities and knowledge of U.S. history and culture. (Id. ¶ 7.) Accordingly, on November 29, 2007, plaintiff filed this action seeking to compel defendants to process her naturalization application.
On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court must accept as true all factual allegations in the complaint, and give plaintiff the benefit of all reasonable inferences from the facts alleged. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000). However, a court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are "unsupported by the facts set out in the complaint." Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). In considering the sufficiency of a plaintiff's allegations for this purpose, a court may consider materials outside the pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
Plaintiff contends that this Court has jurisdiction to compel defendants to adjudicate her application pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and the Mandamus Act, 28 U.S.C. § 1361. (Pet. ¶ 2.) She claims that defendants have a non-discretionary duty to adjudicate her application within a reasonable time, and since they have failed to do so, the Court should compel them to act.*fn1 Defendants, on the other hand, contend that Section 336(b) of the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1447(b), which permits an applicant for naturalization to bring an action in federal district court if USCIS fails to act on the application within 120 days of having examined the applicant,*fn2 provides a court with a specific and exclusive jurisdictional grant, and plaintiff may not circumvent the limitations of the statute by means of the APA or a mandamus action. Moreover, defendants claim that relief under the APA and the Mandamus Act is unavailable because USCIS has no clear non-discretionary duty to complete the adjudication of plaintiff's application prior to the receipt of her name check results and completion of her interview, and no statute or regulation gives USCIS a non-discretionary duty to request expedited background checks or imposes any limitations on the FBI's discretion regarding the timetable for conducting name checks.
A. Jurisdiction Under the APA
Pursuant to the APA, a person adversely affected by agency action is entitled to judicial review. 5 U.S.C. § 702. Agency action includes the failure to act. Id. § 551(13). Because the Finally, the Court notes that plaintiff filed an unauthorized surreply, which is not properly before the Court. See LCvR 7. In addition, plaintiff's surreply adds nothing that would change the Court's conclusions.
APA requires agencies to conclude matters presented to them "within a reasonable time," id. § 555(b), a court may sometimes "compel agency action unlawfully withheld or unreasonably delayed," id. § 706(1). However, "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 Alliance, 542 U.S. 55, 64 (2004) (emphasis in original). Thus, a plaintiff may invoke subject matter jurisdiction under the APA only if the defendant had a duty to perform a ministerial or non-discretionary act. See id. As the D.C. Circuit has recently explained, "when an agency is compelled by law to act, but the manner of its action is left to the agency's discretion, the 'court can compel the agency to act, [although it] has no power to specify what th[at] action must be.'" Kaufman v. Mukasey, No. 06-5259, 2008 U.S. App. LEXIS 9527, at *7 (D.C. Cir. May 2, 2008) (quoting Norton, 542 U.S. at 65) (alterations in original). While the APA does not confer subject ...