Blajro v. Citizenship

Opinion by Judge TALLMAN; Partial Concurrence and Partial Dissent by Judge RAWLINSON.

ORDER

The panel has voted to amend its previous opinion and issues the following opinion to replace it. With this amendment, Judges Tallman and Murphy have voted to deny the Appellants’ petition for panel rehearing; Judge Rawlinson has voted to grant the Appellants’ petition for panel rehearing. The Appellants’ petition for panel rehearing is DENIED.

The panel has voted to deny the Appel-lees’ petition for panel rehearing; Judges Tallman and Rawlinson have voted to deny the petition for rehearing en banc and Judge Murphy so recommends. Appel-lees’ petition for rehearing and petition for rehearing en banc are DENIED.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

No further petitions for rehearing or petitions for rehearing en banc will be entertained.

OPINION

United States Citizenship and Immigration Services and federal officer co-defendants (collectively “USCIS”) challenge the district court’s grant of summary judgment, a. permanent injunction, and an attorneys’ fees award in favor of Plaintiffs Mirsad Hajro and James R. Mayock. The district court found that USCIS engaged in a pattern or practice of violating the Freedom of Information Act’s (“FOIA”) time limits, 5 U.S.C. § 552(a)(6)(A), (B), (C) (2012). The statutory time limits require an agency to determine within twenty days whether to comply with a FOIA request or, in the alternative, notify the requester of any “unusual circumstances” requiring an extension in responding to the request. See 5 U.S.C. § 552(a)(6)(A), (B). If the agency fails to comply with either, a FOIA requester can proceed directly to district court where the agency must show “exceptional circumstances” justifying its untimeliness and due diligence in remedying the violation. See 5 U.S.C. § 552(a)(6)(C). USCIS also challenges the district court’s jurisdiction to enforce a 1992 Settlement Agreement entered into by attorney James Mayock and USCIS’s predecessor agency, the Immigration and Naturalization Service (“INS”).

We have jurisdiction under 28 U.S.C. § 1291 to review the summary judgment order. We dismiss USCIS’s challenge to the permanent injunction for lack of jurisdiction given its prematurely filed notice of appeal. We hold that while the district court may assert supplemental jurisdiction over the Settlement Agreement claims, Plaintiffs have failed to show an “unequivocally expressed” waiver of sovereign immunity. We clarify the standing requirements to assert a FOIA pattern or practice claim. As such, we vacate the injunction and remand with instructions *1093to conduct farther proceedings on an open record to determine in the first instance whether Mayock has standing to bring a pattern or practice claim under this standard. We also find Hajro’s pattern or practice claim moot. Therefore, the summary judgment order is reversed and remanded. We vacate and remand the attorneys’ fees award for further consideration in light of this opinion.

I

A

James Mayock has been an immigration attorney for over thirty years. As part of Mayock’s ongoing immigration caseload, he files requests under FOIA to obtain the alien registration files for his clients. Mayock’s declaration states that USCIS has never produced the requested records within FOIA’s statutory twenty-day time limit. See 5 U.S.C. § 552(a)(6)(A). Nor has the government provided written notice setting forth any “unusual circumstances” for an extension of time beyond the statutory limit. See 5 U.S.C. § 552(a)(6)(B). In support of his pattern or practice claim, Mayock provided a recent FOIA response addressed to another attorney at Mayock’s law firm. USCIS responded almost eight months after the initial request was placed. Mayock also provided declarations from twenty-six other immigration attorneys who have encountered similar, routine delays. All twenty-six attorneys included copies of their own delayed FOIA requests from recent years. USCIS did not rebut this evidence before the district court. Hajro v. U.S. Citizenship & Immigration Servs. (“Hajro I”), 832 F.Supp.2d 1095, 1105 (N.D.Cal.2011).

In addition to the present lawsuit, May-ock previously filed a lawsuit against the INS, USCIS’s predecessor agency, about twenty-five years ago. Mayock similarly alleged that INS had a pattern or practice of violating various provisions of FOIA. Mayock, together with other immigration attorneys, submitted declarations to demonstrate that INS often took months to respond to FOIA requests, far in excess of the statutory time limit, then ten days. See 5 U.S.C. § 552(a)(6)® (1988). The district court agreed and granted summary judgment in favor of Mayock, directing INS to issue the appropriate notices for extension of time required by FOIA and enjoining the San Francisco District Office of the INS from failing to comply with the statutory timing requirements. Mayock v. I.N.S., 714 F.Supp. 1558 (N.D.Cal.1989), rev’d and remanded, 938 F.2d 1006 (9th Cir.1991).

On appeal, we reversed and remanded. We held that the district court had overlooked the existence of genuine issues of material fact as to whether increasing workloads at INS offices created “exceptional circumstances” justifying its failure to respond within the statutory time limits, and whether the agency had demonstrated “due diligence” in responding to requests for information urgently needed by aliens who faced pending deportation or exclusion proceedings. See Mayock v. Nelson, 938 F.2d 1006,1007-08 (9th Cir.1991).

Upon remand, the parties entered into a settlement agreement (“the Settlement Agreement”), in which INS agreed to implement expedited processing of a FOIA request where the requester demonstrates that an individual’s life or personal safety would be jeopardizéd; or where the requester’s substantial due process rights would be impaired by the failure to process a request immediately. The district court dismissed the case with prejudice but the parties subsequently filed the Settlement Agreement with the court in 1992. The district court’s dismissal order did not expressly retain jurisdiction of the Settle*1094ment Agreement nor did it incorporate its terms into the order.

B

Mirsad Hajro was a permanent resident of the United States who applied for naturalization in 2003. In October 2007, US-CIS notified Hajro that his naturalization application had been denied based on evidence in his alien registration file that allegedly revealed false testimony regarding his foreign military service. As part of his appeal from the denial of his application for citizenship, Hajro filed a FOIA request with the USCIS National Records Center in November 2007 seeking a copy of his alien registration file. Hajro requested expedited processing of his FOIA request under the terms of the 1992 Settlement Agreement.

Since 2007 USCIS has used a three-track system for processing FOIA requests: “Track 1” for simple requests, “Track 2” for complex inquiries that require additional time, and “Track 3” for expedited processing for individuals subject to removal proceedings and scheduled for a hearing before an immigration judge. Special FOIA Processing Track, 72 Fed. Reg. 9017-01 (Feb. 28, 2007). In responding to Hajro’s FOIA request, USCIS denied Hajro’s expedited request and processed his request under Track 2. USCIS’s letter did not include notice of any “unusual circumstances” justifying an extension of the current twenty-day time limit. See 5 U.S.C. § 552(a)(6)(A), (B).

It is undisputed that USCIS failed to issue Hajro’s FOIA request within the twenty-day time limit. Hajro I, 832 F.Supp.2d at 1101. As a result of the delay, Hajro appealed the denial of his naturalization application without the evidence relied upon by USCIS in denying it.1 Id. at 1112.

While this appeal was pending, Hajro successfully challenged USCIS’s denial of citizenship and he has since been naturalized as a U.S. citizen. See Hajro v. Barrett, 849 F.Supp.2d 945 (N.D.Cal.2012).

C

Mayock and Hajro initiated this action in March 2008. They sought declaratory and injunctive relief under FOIA and the Administrative Procedures Act (“APA”), and enforcement of the 1992 Settlement Agreement. Plaintiffs’ First Amended Complaint (“FAC”), filed June 10, 2008, asserts.nine causes of action:

(1) “Track 3” of Defendants’ current, multi-track policy violates the Settlement Agreement;

(2) Defendants’ denial of Hajro’s request for expedited processing also violates the Settlement Agreement;

(3) The timing by which Defendants provided Hajro with the material responsive to his FOIA request violated FOIA Section 552(a)(6)(A) and 6 C.F.R. § 5.6(b);

(4) Defendants’ failure to notify Hajro of the “unusual circumstances” that prevented USCIS from processing his FOIA request within the 20-day statutory limit violated 6 C.F.R. § 5.5(c)(1);

©Defendants have a pattern or practice of failing to comply with the timing requirements set forth by FOIA Sections 552(a)(6)(A), (B), (C);

*1095(6) Defendants unlawfully withheld the information requested by Hajro in violation of [ ] [5 U.S.C.] Section 551 et seq. and 555(b), as well as Sections 702, 704, and 706 of the APA;

(7) Such withholding of nonexempt material violated Hajro’s due process rights because it interfered with his ability to adequately appeal his naturalization denial and violated his right to a fair hearing ...;

(8) Defendants’ implementation of the “Track 3” policy violates the Fifth Amendment guarantee of Equal Protection; and

(9) Adoption of the “Track 3” policy without notice and comment rulemaking procedure violated Section 553 of the APA.

Hajro I, 832 F.Supp.2d at 1102-03.

USCIS moved for summary judgment on the FAC in its entirety. Plaintiffs opposed Defendants’ motion and themselves moved for summary judgment.

On October 13, 2011, the district court filed its summary judgment order. Id. at 1095. The district court ruled in Plaintiffs’ favor as to all but Claim Eight.2

On December 12, 2011, USCIS filed a notice of appeal (No. 11-17948) citing the summary judgment order. After receiving input from both parties in drafting the form of an injunction, the district court issued its final judgment order and entered a permanent injunction on May 7, 2012. USCIS did not amend its notice of appeal to include the permanent injunction.

On October 15, 2012, the district court granted in part Plaintiffs’ motion for attorneys’ fees and costs. Hajro v. USCIS (“Hajro II”), 900 F.Supp.2d 1034 (N.D.Cal.2012). Defendants filed a timely notice of appeal (No. 12-17765) challenging that decision on December 14, 2012.

Our Appellate Commissioner, in an order dated January 4, 2014, asked both parties to address whether we have jurisdiction over the summary judgment and permanent injunction appeal (No. 11-17948) in light of the fact that USCIS filed its notice of appeal after the summary judgment order but before entry of the actual permanent injunction.

USCIS now challenges only Claims One and Two related to the 1992 Settlement Agreement, Claim Five — the pattern or practice claim — and the scope of the permanent injunction.

II

We hold that we have jurisdiction to review the summary judgment order, but dismiss USCIS’s challenge to the permanent injunction for lack of jurisdiction under Federal Rule of Appellate Procedure (“FRAP”) 4(a)(2).

The requirement to file a notice of appeal is “mandatory and jurisdictional.” Browder v. Dir., Dep’t of Corr. of III., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). The government must file a notice of appeal within sixty days of the date of a final judgment or an appealable order. FRAP 4(a)(1)(B). However, a party may prematurely appeal under FRAP 4(a)(2):

A notice of appeal filed after the court announces a decision or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry.

The issue here is whether USCIS’s December 12, 2011, notice of appeal can be *1096treated as filed on May 7, 2012 — the date the district court filed its final judgment and permanent injunction — such that US-CIS can challenge both the summary judgment order and the permanent injunction.

Two cases govern this jurisdictional issue. First, the U.S. Supreme Court in FirsTier Mortgage Insurance Co. v. Investors Mortgage Ins. Co., held that FRAP 4(a)(2) “permits a notice of appeal from a nonfinal decision to operate as a notice of appeal from the final judgment only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment.” 498 U.S. 269, 276, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991) (emphasis in original). There, the appellant filed a notice of appeal after the district court orally ruled from the bench that it was granting respondent’s summary judgment motion while simultaneously asking the parties for suggested findings of fact and conclusions of law for its formal order. Id. at 270-71, 111 S.Ct. 648. The Supreme Court concluded that FRAP 4(a)(2) rescued the premature notice of appeal, stating that “Rule 4(a)(2) was intended to protect the unskilled litigant, who files a notice of appeal from a decision that he reasonably but mistakenly believes to be a final judgment....” Id. at 276, 111 S.Ct. 648.

While other circuits have generously interpreted FRAP 4(a)(2) and FirsTier, the Ninth Circuit has narrowly construed both. Compare Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 223 (D.C.Cir.2011) (emphasizing objective “immediately appealable” standard regardless of counsel’s subjective reasonableness in filing the notice of appeal), with Kendall v. Homestead Dev. Co. {In re Jack Raley Constr., Inc.), 17 F.3d 291, 294 (9th Cir.1994) (concluding appellants had no reasonable belief that notice of appeal was effective especially where they requested permission to brief and argue remaining issue); Kennedy v. Applause, Inc., 90 F.3d 1477, 1482-83 (9th Cir.1996). See also Brown v. Columbia Sussex Corp., 664 F.3d 182, 188-89 (7th Cir.2011) (reading FirsTier “to hold that Rule 4(a)(2) will save a premature notice if, regarding the claim being appealed, the entry of judgment is all that is left for the court to do” (emphasis in original)). As USCIS notes, there are many similarities between FirsTier and this case that may have warranted a different outcome had we decided this case solely on FRAP 4(a)(2) and FirsTier. However, our case law post-FirsTier is clear: “a premature notice of appeal is valid under FRAP 4(a)(2) when ‘[a]ll that remained was the clerk’s ministerial task of entering a Rule 58 judgment.’ ” Kennedy, 90 F.3d at 1483 (quoting In re Jack Raley Constr., Inc., 17 F.3d at 294).

In Kennedy, we addressed the merits of the summary judgment order but dismissed the appellant’s challenge to the district court’s award of attorneys’ fees for want of jurisdiction. 90 F.3d at 1479. After the district court granted defendant Applause’s summary judgment motion, Kennedy filed a notice of appeal. Id. at 1480. Subsequently, Applause moved for attorneys’ fees and Rule 11 sanctions. Id. The district court denied the Rule 11 motion for sanctions, but granted in part Applause’s motion for attorneys’ fees without determining the amount of fees and costs. Id. Prior to the determination of the fees, Kennedy filed a “Notice of Amended Appeal” from the order. Id. Because Kennedy filed the notice of appeal before the district court calculated the fees and costs, we addressed the merits of Kennedy’s claim based on the summary judgment order, but dismissed the challenge to the attorneys’ fees award as premature. Id. at 1482.

We reasoned that, because the amount of fees had yet to be determined and the *1097court had requested further submissions from both parties to finalize the fee amount, the district court’s order was not one “that would be appealable if immediately followed by the entry of judgment.” Id. at 1483 (quoting FirsTier, 498 U.S. at 276, 111 S.Ct. 648). In other words, more than a ministerial task remained. Id. (citing In re Jack Raley Constr., Inc., 17 F.3d at 294)..

Here, the district court’s October 13, 2011, summary judgment order addressed both cross-motions for summary judgment and all of Plaintiffs’ claims. Hajro I, 832 F.Supp.2d at 1099-1100. Because the district court disposed of all claims, we find that the summary judgment order “would be” immediately appealable if immediately followed by the entry of judgment. However, like Kennedy, the district court requested proposed forms of injunction from both parties in order to craft the permanent injunction. USCIS could not have “reasonably but mistakenly believe[d]” their notice of appeal included the permanent injunction when the parties continued to debate the final language and scope of the injunction. FirsTier, 498 U.S. at 276, 111 S.Ct. 648. The claim USCIS now appeals — the scope of the permanent injunction — would not be immediately ap-pealable because the scope and language of the injunction were not yet final when the government filed the notice of appeal. The issuance of the permanent injunction where the parties continued to debate the language was not merely ministerial.

To be clear, a significant amount of overlap exists between the summary judgment order and the permanent injunction. For example, both orders assert subject matter jurisdiction over the Settlement Agreement and provide relief for Plaintiffs’ pattern or practice claim.3 However, the nationwide scope of the permanent injunction became apparent only after the district court issued the permanent injunction on May 7, 2012.4 While we do not *1098exercise jurisdiction directly over the district court’s permanent injunction nor opine on its scope, our reversal of the summary judgment order will inevitably undermine the justification for the permanent injunction.5

In sum, we have jurisdiction to review the summary judgment order, but dismiss USCIS’s challenge to the scope of the permanent injunction for lack of jurisdiction. Nonetheless, because we reverse and remand the summary judgment order, we must vacate the current injunction.

Ill

In a FOIA case, instead of determining whether a genuine issue of material fact exists, we employ a special two-step standard to review the grant of summary judgment. See Ctr. for Biological Diversity v. U.S. Dep’t of Agrie., 626 F.3d 1113, 1116 (9th Cir.2010). First, we ask whether an adequate factual basis supports the district court’s ruling de novo. Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1149 (9th Cir.2008). Second, “[i]f we determine that an adequate factual basis exists to support the district court’s decision, we review the district court’s conclusions under either the clearly erroneous or de novo standard of review, depending on whether the district court’s conclusions are primarily factual or legal.” Id.

The district court’s determination whether a party has standing, and whether there is subject matter jurisdiction, is reviewed de novo. See San Luis & Deltar-Mendota Water Auth. v. United States, 672 F.3d 676, 699 (9th Cir.2012); Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir.2002). The district court’s factual findings on jurisdictional issues are reviewed for clear error. See Schnabel, 302 F.3d at 1029.

IY

Reviewing the summary judgment order, we hold (1) that the jurisdictional rule announced in Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 5.Ct. 1673, 128 L.Ed.2d 391 (1994), applies retroactively to the 1992 Settlement Agreement; and (2) that while the district court may assert supplemental jurisdiction over the Settlement Agreement claims, Plaintiffs have failed to show an “unequivocally expressed” waiver of sovereign immunity.6 As such, we must reverse the summary judgment order as to Claims One and Two. While we recognize the harsh consequence, especially considering the parties relied on Ninth Circuit ease *1099law as it stood in 1992, “we simply cannot waive sovereign immunity where Congress has not.” United States v. Park Place Assocs., Ltd., 563 F.3d 907, 935 (9th Cir. 2009); United States ex rel. Haight v. Catholic Healthcare W., 602 F.3d 949, 953 (9th Cir.2010) (a rule given strict retroactive effect by the Supreme Court must be applied to all cases “no matter how inequitable the result”).

A

Under the Supreme Court’s decision in Kokkonen, a district court does not have the inherent power to enforce the terms of a settlement agreement under the doctrine of ancillary jurisdiction. Kokkonen, 511 U.S. at 381-82, 114 S.Ct. 1673. If a district court wishes to retain jurisdiction to later enforce the terms of a settlement agreement, the order dismissing a case with prejudice must incorporate the terms of the settlement agreement or expressly retain jurisdiction. Id. at 380-81, 114 S.Ct. 1673. Here, the parties do not dispute that the district court’s 1992 order did neither.

Instead, Plaintiffs argue that Kok-konen, decided in 1994, should not be applied retroactively to the Settlement Agreement, filed in 1992. Plaintiffs cite Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), for the proposition that whether a Supreme Court decision applies retroactively depends on a three-prong test.7 Plaintiffs misunderstand the law.

When the Supreme Court announces a new rule and retroactively applies it to the case before it, all courts must apply the rule retroactively. Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 90, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993); Catholic Healthcare W., 602 F.3d at 953; Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir.2007); see also Christopher A. Goelz et al., Ninth Circuit Civil Appellate Practice ¶ 8:185 (The Rut-ter Group 2015). Silence on the issue indicates that the decision is to be given retroactive effect. Harper, 509 U.S. at 97-OS, 113 S.Ct. 2510; Gonzales v. U.S. Dep’t of Homeland Sec., 659 F.3d 930, 938-39 (9th Cir.2011). Otherwise, the retroactivity depends on the three-prong test from Huson.

Furthermore, where a Supreme Court decision affects our jurisdiction to hear certain claims, the jurisdictional ruling has retroactive effect. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981); Austin v. City & Cty. of Honolulu, 840 F.2d 678, 682 (9th Cir.1988) (jurisdictional rulings “may never be made prospective only”); see Catholic Healthcare W., 602 F.3d at 953. Here, the Supreme Court’s rule announced in Kokkonen—that a district court does not have the inherent power to enforce the terms of a settlement agreement under the doctrine of ancillary jurisdiction—explicitly deals with the jurisdiction of federal courts. Moreover, the Kokkonen court applied this new jurisdictional rule to the parties before it. Therefore, we hold the Kokkonen rule applies retroactively to the 1992 Settlement Agreement.

B

Next, Plaintiffs contend that, even if Kokkonen applies, the district court may assert supplemental jurisdiction under 28 U.S.C. § 1367 over two contract *1100claims because they are part of a common nucleus of operative fact related to seven other federal claims.8 Unlike Kokkonen, where the parties asserted diversity jurisdiction to get into federal court, here the jurisdictional basis is primarily a federal question under the FOIA statute. This is persuasive, but the federal government is not your typical defendant — a party also needs permission from Congress to sue the government.

Although some Ninth Circuit eases have conflated the two, sovereign immunity and subject matter jurisdiction present distinct issues. See Park Place Assocs., Ltd., 563 F.3d at 923 (citing eases conflating the two issues); Arford v. United States, 934 F.2d 229, 231 (9th Cir.1991); see also Ralph C. Nash & John Cibinic, Specific Relief v. Money Damages: Subcontractors Caught in the Web of Sovereign Immunity, in 13 No. 5 Nash & Cibinic Rep. ¶ 25 (1999). A waiver of sovereign immunity means the United States is amenable to suit in a court properly possessing jurisdiction; it does not guarantee a forum. See Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007) (“To confer subject matter jurisdiction in an action against a sovereign, in addition to a waiver of sovereign immunity, there must be statutory authority vesting a district court with subject matter jurisdiction.”).

Conversely, if the district court here wished to avail itself of 28 U.S.C. § 1367, it would need a congressional waiver of sovereign immunity to enforce the 1992 Agreement against the federal government.9 See Park Place Assocs., *1101Ltd., 563 F.3d at 924; see also Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999). The issue then becomes what Congress contemplated by inserting its waiver provision in FOIA and whether that waiver can include a contract entered into between a private party and a federal agency related to FOIA litigation.

We begin our inquiry with the Supreme Court’s instruction that “a waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign.” Blue Fox, Inc., 525 U.S. at 261, 119 S.Ct. 687 (citing Lane v. Peña, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996), and Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986)). The Supreme Court has frequently cautioned against finding implied waivers of sovereign immunity. Id.

Plaintiffs have the burden of meeting this high standard — such a waiver must be “unequivocally expressed” in the statutory text. Id. FOIA’s waiver of immunity and jurisdictional grant provides that district courts have “jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” See 5 U.S.C. § 552(a)(4)(B).

Beginning with the plain language in § 552(a)(4)(B), “to enjoin” is defined as “[t]o legally prohibit or restrain by injunction. To prescribe, mandate, or strongly encourage.” Enjoin, Black’s Law Dictionary (10th ed.2014). The plain language clearly contemplates declaratory and in-junctive relief, which is what Plaintiffs seek. However, Plaintiffs’ cause of action (a contract claim) is not “unequivocally expressed” in the statute. Mayock is not seeking to enforce the statutory mandate to provide timely FOIA disclosures itself, rather he seeks enforcement of his own private agreement with a federal agency related to FOIA requests. As mentioned above, supra note 8, aside from a citation to a federal regulation that may or may not apply; Mayock provides no support for this argument. Furthermore, a review of the legislative history of § 552(a)(4)(B) does not support a finding that an agency settlement agreement related to FOIA disclosures was contemplated by Congress as an “improper” withholding.10 Strictly construing the waiver of immunity in favor of the sovereign, we find no waiver of sovereign' immunity to enforce the terms of the Settlement Agreement under a theory of supplemental jurisdiction. Blue Fox, Inc., 525 U.S. at 261,119 S.Ct. 687.

In sum, because Kokkonen applies retroactively and the 1992 district court order did not retain jurisdiction over the prior *1102lawsuit’s Settlement Agreement, the district court does not have the inherent power to enforce the terms of the Settlement Agreement. Even asserting supplemental jurisdiction over the contract claims, Plaintiffs’ suit to enforce the contract still fails as they have not met their burden of proving an “unequivocally expressed” congressional waiver of sovereign immunity. Therefore, we reverse summary judgment in favor of Plaintiffs as to Claims One and Two.

V

USCIS also challenges the district court’s finding that Hajro and Mayock satisfied the standing elements to bring a pattern or practice claim. Because USCIS has not appealed the district court’s finding with respect to Hajro’s specific FOIA request (Claims Three, Four, and Six), we limit our review to the pattern or practice claim (Claim Five)-. We hold that the factual record is not sufficiently developed to determine whether Mayock has standing to bring a pattern or practice claim, satisfying the personal harm and future harm prongs under our clarified standard. Mayoek’s single FOIA response addressed to another lawyer at his firm is insufficient to prove personal harm. Hajro, on the other hand, lost standing to bring a pattern or practice claim during the pendency of this appeal when he was granted his citizenship, because the probability that USCIS’s delays “will impair [Hajro’s] lawful access to information in the future” is now remote. Payne Enters., Inc. v. U.S., 837 F.2d 486, 491 (D.C.Cir.1988). Therefore, we reverse and remand for further fact finding as to Mayock’s standing and dismiss Hajro’s claim as moot.11 See Pac. Fisheries, Inc., 539 F.3d at 1149.

* * *

We begin our inquiry with the “irreducible constitutional minimum” elements of standing: injury in fact, causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Neither party debates causation or redressability. The contested element here is the showing of injury in fact in the. context of injunctive relief.

A plaintiff can establish injury in fact by showing that he suffered “an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotations and citations omitted). Where a party seeks injunctive relief, he must allege a sufficient likelihood that he will be subjected in the future to the allegedly illegal policy. City of Los Angeles v. Lyons, 461 U.S. 95, 105, 110, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). At the summary judgment stage, “the plaintiff can no longer rest on [ ] ‘mere allegations’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of the summary judgment motion will be taken to be true.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal citations omitted).

We clarify that the Article III requirements for a specific FOIA request claim and a pattern or practice claim differ from each other. We have recognized two *1103separate claims that complainants can bring against an agency under FOIA. The first is a suit where a plaintiff attacks a specific agency action for (1) “improperly” (2) “withheld” (3) “agency records.” Kissinger v. Reporters Comm, for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). For specific FOIA request claims, after the agency produces all non-exempt documents and the court confirms the agency’s proper invocation of an exemption, the specific FOIA claim is moot because the injury has been remedied. See, e.g., Perry v. Block, 684 F.2d 121, 125 (D.C.Cir.1982) (“[I]f we are convinced that appellees have, however belatedly, released all nonexempt material, we have no further judicial function to perform under the FOIA.”); see also Papa v. United States, 281 F.3d 1004, 1013 & n. 42 (9th Cir.2002).

A FOIA requester may also assert a FOIA pattern or practice claim—a “claim that an agency policy or practice will impair the party’s lawful access to information in the future.” Payne Enters., Inc., 837 F.2d at 491 (emphasis in original); accord Newport Aeronautical Sales v. Dep’t of the Air Force, 684 F.3d 160, 164 (D.C.Cir.2012). For example, we have recognized a pattern or practice claim for unreasonable delay in responding to FOIA requests. See Mayock, 938 F.2d at 1006; Long, 693 F.2d at 909-10.

We now clarify, based on Lujan and our own precedent, that where a plaintiff alleges a pattern or practice of FOIA violations and seeks declaratory or injunc-tive relief, regardless of whether his specific FOIA requests have been mooted, the plaintiff has shown injury in fact if he demonstrates the three following prongs: (1) the agency’s FOIA violation was not merely an isolated incident, (2) the plaintiff was personally harmed by the alleged policy, and (3) the 'plaintiff himself has a sufficient likelihood of future harm by the policy or practice. See Lujan, 504 U.S. at 563, 112 S.Ct. 2130; Lyons, 461 U.S. at 105, 103 S.Ct. 1660; Long, 693 F.2d at 909-10. In other words, a pattern or practice claim is not necessarily mooted by an agency’s production of documents. Payne Enters., Inc., 837 F.2d at 491 (holding that a pattern or practice claim is viable “[s]o long as an agency’s refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials”).

These three requirements are not novel, but do clarify our pattern or practice jurisprudence. This standard packages our own precedent that recognizes FOIA pattern or practice claims and the availability of injunctive relief where the “alleged illegal conduct will recur,” Long, 693 F.2d at 909, and Supreme Court precedent holding that an injury in fact “requires that the party seeking review be himself among the injured,” Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Moreover, because Plaintiffs seek injunctive relief, Plaintiffs must show a likelihood of future harm caused by the policy or practice. Lyons, 461 U.S. at 105, 103 S.Ct. 1660. Thus, for the purposes of clarifying the FOIA pattern or practice claim standing requirements, we divide the alleged injury in fact into three parts.

A

Both Mayock and Hajro meet the first prong of the test for the purposes of Article III standing. Although this first prong overlaps with the merits of a pattern or practice claim, we comment only on the standing aspect here. For the purposes of our standing inquiry, we simply review whether the plaintiff asserted that the federal agency has á pattern or prac*1104tice of violating FOIA and if the plaintiff has provided any type of “specific facts” beyond “mere allegations.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130; see also City of Houston v. Dep’t of Housing & Urban Dev., 24 F.3d 1421, 1429-30 (D.C.Cir.1994). Plaintiffs have a number of ways to prove that the agency’s FOIA violation was not an isolated event. For example, a plaintiff can provide evidence that he has been subjected to a FOIA violation more than once. Or a plaintiff can provide the court with affidavits of people similarly situated to the plaintiff who were also harmed by the pattern or practice.

Here, Mayock and Hajro opted for the latter. First, both Plaintiffs expressly allege in their complaint “that Defendants have a pattern or practice of failing to comply with the time requirement” set forth in 5 U.S.C. § 552(a)(6)(A), (B), (C). To support their allegation, Plaintiffs then provided twenty-six declarations by immigration attorneys detailing USCIS’s delayed FOIA responses and attached a delayed FOIA request as proof. Therefore — for the purposes of standing and without opining on the merits — both Plaintiffs have met this prong.

Next, we consider each Plaintiff individually to determine whether they meet the remaining elements of the test.

B

1

Under prong two, Mayock must demonstrate he was personally harmed by the alleged pattern or practice. See Lujan, 504 U.S. at 563, 112 S.Ct. 2130; Payne Enters., Inc., 837 F.2d at 491. USCIS attacks Mayock’s standing, arguing he was not personally harmed because Mayock, as an attorney, is not a requester under FOIA. Additionally, USCIS argues that Mayock must meet the third party standing requirements, which he cannot establish because he is suing on behalf of prospective clients. We find both arguments unavailing.

First, a practicing immigration attorney who files and signs FOIA requests is a requester under FOIA. USCIS’s own FOIA request form (Form G-639) lists the attorney as the “requestor” of information.12 We have previously accorded Mayock “requestor” status in his capacity as an attorney to bring a pattern or practice claim. See Mayock, 938 F.2d at 1007 n. I.13 FOIA’s text and legislative intent also support our categorization of Mayock as a requester. The statute’s very first section begins with “[e]ach agency shall make available to the public information as follows .... ” 5 U.S.C. § 552(a) (emphasis added). The statute further states that if an agency’s requesting procedures are followed, the agency “shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A) (emphasis added). Based on this broad statutory language, courts have held that whoever is named on a FOIA request is generally a requester. See, e.g., McDonnell v. United States, 4 F.3d 1227,1236 (3d Cir.1993). Here, Mayock produced one FOIA response addressed to an attorney at his firm, rather than the client who was the subject of the request. This shows that attorneys can be requesters under FOIA. See also Unigard Ins. Co. v. Dep’t of Treasury, 997 F.Supp. 1339, 1342 (S.D.Cal.1997) (holding attorney named on FOIA request had standing but *1105client did not because client’s name was not on the request). Thus, if Mayock can show that he personally filed and signed a request, he is a requester for the purposes of FOIA.

Next, USCIS argues that Mayock cannot establish standing because he is suing on behalf of prospective clients, citing to Kowalski v. Tesmer, 543 U.S. 125, 134, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). But Kowalski implicates third party standing, and Mayock alleges a personal injury in his capacity as a requester under FOIA.14 Mayock claims that as a requester, he has not received timely FOIA responses in violation of the statute. This is sufficient injury under FOIA.

To be injured under FOIA, Mayock does not need to have a personal connection to the information he is requesting. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (“[T]he Act clearly intended to give any member of the public as much right to disclosure as one with a special interest therein.... ”). In the context of the Federal Election Campaign Act, the Supreme Court has held that a failure to get information is in itself a concrete injury. Fed. Election Comm’n v. Akins, 524 U.S. 11, 21, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). Even the dissenting justices in Akins suggested that a failure to get information is a concrete injury under statutes like FOIA, explaining “[a] person demanding provision of information that the law requires the agency to furnish — one demanding compliance with the Freedom of Information Act ... for example — can reasonably be described as being ‘aggrieved’ by the agency’s refusal to provide it.” See id. at 30-31, 118 S.Ct. 1777 (Scalia, J., dissenting). This is so even if the requester’s injury may be shared with the public at large because “where a harm is .concrete, though widely shared, the Court has found ‘injury in fact.’ ” Id. at 34-35, 118 S.Ct. 1777.15

*1106Although a delayed FOIA request may serve as a basis for individual standing, at the summary judgment stage, we find genuine issues of material fact as to whether Mayock himself filed such a request. Mayock’s declaration avers that the government has never produced the records within the statutory time period nor provided written notice setting forth “unusual circumstances.”16 True, US-CIS’s delays produce a concrete and particularized injury for Mayock if he can prove he is a requester. But one FOIA response addressed to another attorney at his firm is insufficient to prove his harm was “actual or imminent.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (“[T]he nature and extent of facts that must be averred (at the summary judgment stage) ... in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or foregone action) at issue.”). We need more.

The twenty-six declarations from attorneys around the country that Mayock provides as examples of delayed FOIA requests go to prong one of the standing inquiry as well as the merits of the pattern or practice claim. They do not help May-ock establish his personal harm. Mayock must prove that he was a requester subject to delayed FOIA requests at the time he filed his complaint. See Nat’l Sec. Counselors v. C.I.A., 931 F.Supp.2d 77, 92 (D.D.C.2013).

The district court’s conclusion that May-ock had standing is understandable without the benefit of this opinion. We also recognize that upon remand Mayock may easily satisfy this element; however, under our refined standard, where the plaintiff alleges that an agency engages in a pattern or practice of FOIA violations, he must provide sufficient evidence that he has been a victim of this pattern or practice. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Before he can credibly show that he will file more delayed requests in the future under step three, he must show that he personally filed a request, and that request was delayed. Therefore, we reverse and remand for the district court to conduct the requisite fact-finding and determine, in the first instance, whether Mayock meets prongs two and three of the pattern or practice test (e.g., whether Mayock himself submitted a FOIA request to USCIS at the time he filed this complaint; whether Mayock himself will likely file more FOIA requests with USCIS in the future).

2

Hajro’s case under prong two is simpler. His specific FOIA request delayed by USCIS is sufficient to demonstrate that he was personally harmed by USCIS’s pattern of delay in contravention of FOIA’s time limits. USCIS responded to Hajro’s November 2007 FOIA request almost four months later, well beyond the twenty-day limit prescribed by 5 U.S.C. § 552(a)(6)(A), and it “did not include notice of any ‘unusual circumstances’ justifying an extension of the statutory twenty-day time limit” per 5 U.S.C. § 552(a)(6)(B). Hajro I, 832 F.Supp.2d at 1100-01. As a result, Hajro proceeded to his denial of citizenship appeal without the requested information to rebut USCIS’s allegations against him. Id. This is sufficient to show Hajro was personally harmed by USCIS’s *1107alleged pattern or practice of FOIA violations.

C

The Supreme Court has held that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” Lyons, 461 U.S. at 102, 103 S.Ct. 1660 (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). Because FOIA’s prescribed relief is injunctive or declaratory, generally a plaintiff alleging a pattern or practice claim under FOIA must also meet this future harm requirement. See 5 U.S.C. § 552(a)(4)(B).

Because Mayock did not provide sufficient evidence of his personal harm, we also remand to allow the district court to determine prong three in the first instance after the requisite fact finding.

While this case was pending before us, Hajro successfully appealed US-CIS’s denial of his application for citizenship. Hajro v. Barrett, No. C 10-01772 MEJ, 2011 WL 2118602 (N.D.Cal. May 27, 2011); Hajro v. Barrett, 849 F.Supp.2d 945 (N.D.Cal.2012). Thus, based on the record before us, the likelihood that Hajro will file another FOIA request from USCIS seeking access to his alien file is remote.17 See Big Lagoon Ranchería v. California, 789 F.3d 947, 955 (9th Cir.2015) (en banc) (“A case is moot on appeal if no live controversy remains at the time the court of appeals hears the case....”) (citation omitted).

Seeking injunctive relief on a pattern or practice claim requires that Hajro himself will likely suffer future injury from US-CIS’s delayed FOIA requests or demonstrate his injury would be capable of repetition, yet evading review. See Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 170, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (detailing when a defendant’s voluntary cessation of an allegedly wrongful behavior does not moot a case if the behavior could reasonably be expected to recur); Lyons, 461 U.S. at 105, 103 S.Ct. 1660; Long, 693 F.2d at 909. Here, Hajro’s harm was based on USCIS’s delayed response in turning over his alien registration file to support his application for naturalization. But with citizenship in hand, it is unlikely USCIS “will impair [Hajro’s] lawful access to information in the future.” Payne Enters., Inc., 837 F.2d at 491. We reverse and remand as to Hajro’s pattern or practice claim with instructions to dismiss his claim as moot.

VI

In sum, we have jurisdiction to review the district court’s summary judgment order under FRAP 4(a)(2), but dismiss US-CIS’s challenge to the permanent injunction for lack of jurisdiction. We reverse the district court’s summary judgment order with respect to Claims One and Two because it lacked a waiver • of sovereign immunity to enforce the terms of the 1992 Settlement Agreement. Based on the clarified pattern or practice test, we reverse and remand so that the district court can make the requisite factual findings and determine in the first instance whether Mayock has standing to bring this claim. We also reverse and remand Hajro’s pattern or practice claim with instructions to dismiss the claim as moot. In light of our reversal, we vacate the permanent injunction and we also vacate and remand the attorneys’ fees award for recomputation.

*1108The parties shall bear their own costs on appeal.

DISMISSED in part, REVERSED and REMANDED in part with instructions.