46 F.3d 1135
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.Patricia A. COLLINS, Plaintiff-Appellant,v.Donna E. SHALALA, Department of Health and Human Services,Defendant-Appellee.
No. 94-2999.
United States Court of Appeals,Eighth Circuit.
Submitted:  Jan. 10, 1995.Filed:  Feb. 1, 1995.

Appeal from the United States District Court for the Eastern District of Arkansas.
Before LOKEN, Circuit Judge, GODBOLD,* Senior Circuit Judge, and ARNOLD, Circuit Judge.
PER CURIAM.

1
Patricia A. Collins applied for disability insurance benefits under Title II of the Social Security Act, alleging a disability onset date of June 8, 1990.  Following a hearing, the administrative law judge found that Ms. Collins has severe physical and mental impairments, but that she has the residual functional capacity to perform light work, including her past relevant work as assembly line worker, and therefore she is not disabled.  The Secretary's Appeals Council denied review, Ms. Collins sought judicial review, and she now appeals the decision that there is substantial evidence in the administrative record supporting the Secretary's decision.

2
After careful review of the record, we conclude for the reasons stated in the Memorandum and Order of the district court1 that substantial evidence in the administrative record as a whole supports the Secretary's ultimate determination that Ms. Collins was not disabled as of June 8, 1990.  Accordingly, the judgment of the district court is affirmed.  See 8th Cir.  Rule 47B.

*
 The Honorable John C. GODBOLD, Senior United States Circuit Judge for the Eleventh Circuit, sitting by designation

1
 The HONORABLE HENRY L. JONES, JR., United States Magistrate Judge for the Eastern District of Arkansas, who decided the case by consent of the parties.  See 28 U.S.C. Sec. 636(c)


     Case: 18-11109      Document: 00514968913         Page: 1    Date Filed: 05/23/2019

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                              FILED
                                    No. 18-11109
                                                                            May 23, 2019
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERT GRAY,

                                                 Defendant-Appellant

                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-434-1

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Robert Gray appeals the within-Guidelines sentence imposed after his
guilty plea to possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). He argues that the district court erred in
assessing a four-level sentencing enhancement. We AFFIRM.
       This court reviews the district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-11109     Document: 00514968913       Page: 2   Date Filed: 05/23/2019

                                    No. 18-11109

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). We will uphold a factual
finding on clear error review so long as it is “plausible in light of the record as
a whole.” Id. (citation omitted).
      Gray’s specific contention is that the Government failed to carry its
burden under the U.S.S.G. § 2K2.1(b)(5) enhancement to demonstrate that he
knew or had reason to believe that his sales of firearms to a confidential
informant would result in the transfer of firearms to an individual who
intended to use or dispose of them unlawfully. See § 2K2.1, cmt. n.13(A). That
contention raises a factual issue that we review for clear error. United States
v. Juarez, 626 F.3d 246, 251-52 (5th Cir. 2010). In assessing a defendant’s
mental state for purposes of sentencing, a court may draw “common-sense
inferences from the circumstantial evidence,” id. at 256 (citation omitted), and
such inferences are reviewed for clear error, id. at 251.
      Here, the factual information in the presentence report, which Gray did
not rebut, demonstrated that Gray was actually aware that the firearms he
sold to the confidential informant were bound for Mexico and would be arming
drug cartels there. Also, the district court could reasonably infer from the
circumstantial evidence in the record that Gray knew or had reason to believe
that the firearms he sold were going to be transported to Mexico for illegal
purposes. Such evidence included Gray’s knowledge that the informant made
his money from the ongoing “border war” and the informant’s statement that
he makes money by taking firearms to cartels in Mexico.               These facts,
considered in light of the record as a whole and making reasonable inferences,
support the district court’s conclusion that the Section 2K2.1(b)(5)
enhancement was not clearly erroneous. See Juarez, 626 F.3d at 251-52.
      AFFIRMED.

                                         2


                                   United States Court of Appeals,

                                             Fifth Circuit.

                                             No. 93-9169.

                        TRINITY INDUSTRIES, INC., Plaintiff-Appellant,

                                                   v.

                 MYERS & ASSOCIATES, LTD., et al., Defendants-Appellees.

                                             Jan. 4, 1995.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, GOLDBERG and DUHÉ, Circuit Judges.

       POLITZ, Chief Judge:

       Trinity Industries, Inc. appeals the dismissal for lack of personal jurisdiction of its suit against

its former attorneys. Concluding that the requisite jurisdiction exists, we reverse and remand.

                                              Background

       In ruling on a motion to dismiss without an evidentiary hearing, as was done here, the district

court must accept as true the uncontroverted allegations in the complaint and resolve in favor of the

complainant any factual conflicts posed by the affidavits.1 The following accords with that rubric for

purposes of today's disposition.

       In 1984 Trinity, a Delaware corporation with its principal place of business in Dallas, Texas,

purchased certain assets of Pullman Standard, Inc., and engaged the latter's Illinois patent attorneys,

Myers & Associates, Ltd., for representation in patent and trademark matters. From 1984 to early

1993 the Myers firm, through its name partner Richard J. Myers, and Edward D. Gilhooly, a contract

attorney, represented Trinity on an ongoing basis, including defense of a patent infringement suit in

the Northern District of Texas. Myers identified 40 matters that his firm was handling for Trinity as

of February 1993.

       In December 1992 Johnstown American Corporation, a Trinity competitor in Pennsylvania,

   1
     Wilson v. Belin, 20 F.3d 644 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 322, --- L.Ed.2d
---- (1994).
filed a patent infringement action against Trinity in district court in the Western District of

Pennsylvania. According to Trinity, Myers and Gilhooly counseled Johnstown in the preparation and

prosecution of that litigation.

          Trinity filed the instant action in Texas state court against Myers, Gilhooly, and the Myers

firm, alleging breach of fiduciary duty, civil conspiracy, and negligence. The defendants removed the

action to federal court and sought dismissal for lack o f personal jurisdiction. The district court

granted their motion and Trinity timely appealed.

                                                 Analysis

           A federal court sitting in diversity may exercise jurisdiction over a nonresident defendant to

the same extent as a forum state court. Because the Texas long-arm statute extends to the fullest

constitutional limits, defendants' amenability to suit in Texas t urns on an analysis of due process

parameters.2

          Due process permits the assertion of specific jurisdiction over an out-of-state defendant if he

has "purposefully directed his activities at residents of the forum state ... and the litigation results from

alleged injuries that arise out of or relate to those activities,"3 unless the exercise of jurisdiction would

offend traditional notions of fair play and substantial justice. When the district court rules on a

motion to dismiss without an evidentiary hearing the plaintiff need only present a prima facie case

of personal jurisdiction.4 We conclude that Trinity has done so.

          The Burger King Court directed us to take a "highly realistic"5 approach to deciding whether

a defendant has established the requisite minimum contacts. The bare existence of an attorney-client

relationship is not sufficient.6 Here, however, there is more. The record reflects a factual scenario

   2
       Wilson.
   3
    Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528
(1985) (internal quotations and citations omitted).
   4
       Wilson.
   5
       471 U.S. at 479, 105 S.Ct. at 2185.
   6
   Id.; Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773 (5th Cir.1986), cert. denied, 481 U.S.
1015, 107 S.Ct. 1892, 95 L.Ed.2d 499 (1987).
sufficient to support an inference that the defendants purposefully availed themselves of the privilege

of doing business in Texas.7 Myers considered Trinity a major client. His firm represented the

Texas-based company over the course of eight years, regularly handling patent matters involving the

former Pullman-Standard assets. The legal representation required regular mail and telephonic

communications with Texas and, on occasion, physical presence for meetings in Dallas. Over a

three-year period Myers appeared pro hac vice for Trinity in the Northern District of Texas. Further,

the Myers firm billed Trinity in Texas and payment was forthcoming from Texas.

          These contacts amount to a substantial connection with Texas and cannot accurately be

characterized as random, fortuitous, or incidental.8 Rather, they indicate that the defendants

deliberately availed themselves of the benefits of an ongoing relationship with a Texas client and

reasonably should have anticipated the possibility of being haled into court in Texas for claims arising

out of or related to that relationship.9 As the Court observed in Burger King, an individual who

purposefully directs his activities to forum state residents and derives benefits therefrom should be

answerable in the forum for the consequences of his activities; "the Due Process Clause may not

readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily

assumed."10 That Trinity initially solicited the services of the Myers firm does not change this result.

   7
    See Burger King, 471 U.S. at 473, 105 S.Ct. at 2182-83 (with respect to interstate
contractual obligations, personal jurisdiction exists over parties who "reach out beyond one state
and create continuing relationships and obligations with citizens of another state"); Thompson v.
Chrysler Motors Corp., 755 F.2d 1162, 1170 (5th Cir.1985) ("It is not unfair to require a
nonresident to defend itself in the courts of the forum state if the nonresident engaged in activities
that will support an inference that the nonresident defendant purposefully availed [itself] of the
benefits of conducting business in the forum.") (internal quotation and citation omitted).
   8
    Cf. Holt (specific jurisdiction was lacking where performance of the drilling contract from
which the litigation arose was centered elsewhere); Austad Co. v. Pennie & Edmonds, 823 F.2d
223 (8th Cir.1987) (personal jurisdiction over the defendant attorneys did not lie where a single
lawsuit gave rise to the litigation, the plaintiff was one of several clients brought in to share the
costs, and the principal connection to the forum was plaintiff's residence).
   9
    Cf. Bullion v. Gillespie, 895 F.2d 213 (5th Cir.1990) (specific jurisdiction over nonresident
doctor exists where forum state patient had an ongoing relationship with the doctor and treatment
in part occurred in the forum state); T.M. Hylwa, M.D., Inc. v. Palka, 823 F.2d 310 (9th
Cir.1987) (provision of ongoing accounting services to forum resident was sufficient to support
specific jurisdiction over out-of-state accountant).
   10
        471 U.S. at 474, 105 S.Ct. at 2183.
Although personal jurisdiction does not lie when the defendant cannot control vulnerability to suit,

the defendants at bar voluntarily assumed and continued the obligation of representing the Texas

client.11

            Gilhooly insists that his contacts were less substantial than Myers'. We find the differences

to be merely quantitative, not qualitative. Gilhooly represented Trinity for a shorter period of time

and on fewer mat ters than did Myers but, in consultation over a two-year period with a Trinity

executive in Texas, he completed several patent applications. He also appeared in the Northern

District of Texas litigation for eight months. Like Myers, Gilhooly had an ongoing relationship with

Trinity. The quantitative differences are not decisive.12 Nor is the fact that Gilhooly worked for the

Myers firm; he nevertheless availed himself, as an attorney, of the opportunity to represent a Texas

resident.

            The second inquiry is whether the litigation resulted from injuries arising out of or related to

the defendants' forum contacts. The district court answered this in the negative, considering the

pertinent contacts to be those with Johnstown occurring in Pennsylvania or Illinois. In this the district

court erred. The essence of Trinity's complaint is that its own lawyers counseled its competitor in

bringing adverse litigation. There would be no injury or basis for a claim but for the fact that Myers

and Gilhooly represented Trinity in Texas before and during their engagement by Johnstown.

Assuming minimum contacts exist, as they do herein, a lawyer accused of violating his or her

professional obligations to a client is answerable not only where the alleged breach occurred but also

where the professional obligations attached.13 In this instance, that attaching was within the state of

Texas.

            Finally, we turn to the reasonableness inquiry. Texas has a substantial interest in protecting

its residents from an abusive breach of the attorney-client relationship by the attorneys. The

   11
        See Hylwa.
   12
        Thompson.
   13
     See Hylwa; Waterval v. District Court in and for El Paso County, 620 P.2d 5 (Colo.1980),
cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981).
defendants have not demonstrated that other considerations outweigh this interest. We therefore

conclude that they are amenable to suit in Texas and that no due process violation is occasioned

thereby.

       REVERSED and REMANDED for further proceedings consistent herewith.


898 F.2d 481
134 L.R.R.M. (BNA) 2088, 115 Lab.Cas.  P 10,002
RAILWAY LABOR EXECUTIVES' ASSOCIATION, et al., Plaintiffs-Appellants,v.CITY OF GALVESTON, TEXAS, acting By and Through the BOARD ofTRUSTEES of the GALVESTON WHARVES, Defendants-Appellees.
No. 90-2070.
United States Court of Appeals,Fifth Circuit.
April 18, 1990.

John O.B. Clarke, Jr., Elizabeth A. Nadeau, Highsaw, Mahoney & Clarke, Washington, D.C., Marc A. Zito, Jones & Granger, Houston, Tex., for plaintiffs-appellants.
Benjamin R. Powel, McCleod, Alexander, Powel & Apffel, Galveston, Tex., Arthur L. Dent, III, Houston, Tex., for City of Galveston.
Devin J. Dowd, Frank Dengelesi, Slover & Loftus, Washington, D.C., for Galveston Ry.
Richard T. Conway, Shea & Gardner, Washington, D.C., for amicus curiae National Ry. Labor Conference.
Appeal from the United States District Court for the Southern District of Texas.
Before RUBIN, POLITZ, and DUHE, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:

1
Because the pendency of the interlocutory appeal from the district court's judgment denying the preliminary injunction did not divest the district court of jurisdiction to proceed with other aspects of the case,1 that court did not act improperly in considering the plaintiff's petition for a permanent injunction.  For the reasons given in Railway Labor Executives' Association v. City of Galveston, 897 F.2d 164 (5th Cir.1990), we affirm the district court's judgment denying that petition.

1
 See Fed.R.Civ.P. 62(c);  Plaquemines Parish Comm'n Council v. United States, 416 F.2d 952, 954 (5th Cir.1969);  11 C. Wright & A. Miller, Federal Practice & Procedure Sec. 2962, at 631-32 (1973)


751 F.2d 962
C. Donald AINSWORTH, as Successor to William Arthur Jones,Richard J. Frederick et al., Appellee,v.GENERAL REINSURANCE CORPORATION, Appellant.
No. 83-1892-WM.
United States Court of Appeals,Eighth Circuit.
Submitted April 12, 1984.Decided Jan. 9, 1985.

James H. Horn (Argued), James Bandy, Kansas City, Mo., for appellant.
John C. Craft (Argued), William C. Jolley, Jr., Kansas City, Mo., for appellee.
Before LAY, Chief Judge, FAIRCHILD*, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
FAIRCHILD, Senior Circuit Judge.

1
This is an appeal from a judgment holding a reinsurer (General Reinsurance Corporation) liable to the receiver of an insolvent insurance company (Medallion) for the reinsured amount of insured liability, under a so-called insolvency clause of a reinsurance agreement.  Federal court jurisdiction is based on diversity, and the parties agree that the law of Missouri governs substantive questions.

2
* On January 1, 1971, General Reinsurance entered into Agreement of Reinsurance No. 4191 with Medallion and its subsidiaries, among them Consolidated Underwriters.  In late 1972, Medallion assumed all assets and liabilities of Consolidated Underwriters.

3
Medallion subsequently experienced financial difficulties.  On September 12, 1975, the companies were formally declared insolvent and ordered liquidated by the Circuit Court of Jackson County, Missouri.  In the present action Medallion's court appointed Receiver recovered for liability incurred by two companies insured by Consolidated Underwriters:  Pittsburgh and New England Trucking Company ("P & NE") and B-K Cattle Company ("B-K").  The liabilities arose out of accidents involving company trucks.  The parties agree that these accidents constitute "loss occurrences" covered under Agreement of Reinsurance No. 4191 and the insured liabilities remained unpaid at the time Medallion was declared insolvent.

4
Article IX of the Agreement of Reinsurance, the insolvency clause, provided as follows:

5
In the event of the insolvency of the Company the reinsurance afforded by this Agreement shall be payable by the Reinsurer on the basis of the liability of the Company under the policy or policies reinsured, without diminution because of such insolvency, directly to the Company or its liquidator, receiver or statutory successor.  The Reinsurer shall be given written notice of the pendency of each claim or loss which may involve the reinsurance afforded by this Agreement within a reasonable time after such claim or loss is filed in the insolvency proceedings.  The Reinsurer shall have the right to investigate each such claim or loss and interpose, at its own expense, in the proceeding where the claim or loss is to be adjudicated, any defense which it may deem available to the Company or its liquidator, receiver or statutory successor.  The expense thus incurred by the Reinsurer shall be chargeable subject to Court approval against the insolvent Company as part of the expense of liquidation to the extent of a proportionate share of the benefit which may accrue to the Company solely as a result of the defense undertaken by the Reinsurer.

6
It is clear that this clause was inserted in response to a Missouri statute, Sec. 375.246 RSMo, requiring, similarly to law in many states, that reinsurance must not be treated as an asset or deduction from liability of an insurance company unless the reinsurance is payable "without diminution because of the insolvency of the ceding company."

A. P & NE Loss

7
On December 9, 1974, plaintiffs Ernest and Alice Nemeth won a jury verdict and money judgment against P & NE in the amount of $485,000 for personal injuries and damages suffered in an accident in West Virginia.  Following notice of the insolvency, P & NE sought payment of the judgment from Medallion's receiver and General Reinsurance.  Attorneys for General Reinsurance responded in a March 12, 1976 letter that:

8
The commissioner of claims and the attorney for Medallion Insurance Company has taken the position that the reinsurance assets belong to the receiver for the benefit of general creditors and that my client, General Reinsurance Corporation, cannot legally make payments to any claimant or insuror.

9
Because of the position taken by the attorney for the receiver and the commissioner of claims and the agreement of the reinsurance treaty, we are certainly not in a position to make any payment to the plaintiff or to your client in this suit.

10
The attorneys again wrote P & NE in April 1976 that:

11
[I]t appears to General Reinsurance that the agreement does not provide any means, method, nor language which would warrant payment to you and your client of any sums claimed by your client by reason of judgment or otherwise.  The language of the reinsurance agreement seems clear.  It would appear that our obligation is solely to the representatives of Medallion Insurance Company, now in receivership.

12
The position taken in these letters is clearly consistent with Article IX, the insolvency clause, and the underlying statutory requirement.  Changing its position, however, General Reinsurance later negotiated and paid the Nemeths and P & NE $25,000.00 for a release discharging Medallion and its Receiver from all liability arising out of the accident.  The Receiver did not participate in the negotiations or settlement of the P & NE case.

13
The district court concluded that the liability of P & NE to the Nemeths, insured up to policy limits by Consolidated (and Medallion), gave rise to a right of Medallion to proceeds of reinsurance and that such right vested in the Receiver when Medallion was declared insolvent.  General Reinsurance was without authority to negotiate a settlement altering that right.  In accordance with this holding, the court awarded the Receiver $89,557.53, plus interest from the date of insolvency.1

B. B-K Loss

14
The other loss occurrence concerned a 1972 accident in Texas involving a B-K truck.  Plaintiffs in that suit agreed to a court-approved settlement of $85,000.00 on December 28, 1976.  The Texas ancillary receiver of Medallion paid $50,000.00;  B-K contributed $10,000.00;  and B-K's excess insurance carrier contributed $25,000.00.

15
General Reinsurance made a payment to the Receiver, apparently on the theory that the settlement determined $50,000 as the amount of insured liability.  General's payment represented $50,000, less the amount of retention, and other adjustments not relevant to the issue in this case.  Although the Receiver originally contended that the appropriate amount of insured liability was $100,000, the policy limit, he ultimately conceded that the settlement determined liability at $85,000, and claimed that amount less the amount of retention.  The district court entered judgment reflecting the latter theory.

II

16
The insolvency clause appears to require that when the insurer becomes insolvent the reinsurer's obligation with respect to an outstanding liability insured by the insurer becomes an asset of the insolvency estate.  The amount of the obligation is not to be diminished because of the insolvency.  The central issue in this case is whether the reinsurer may reduce or eliminate its obligation by making a settlement directly with the insured and those to whom the insured is liable.  General Reinsurance would contend that because the direct settlement discharges the liability of the insurer, fully in a case like P & NE or partially in a case like B-K, and obviates any determination of a claim of liability in the insolvency proceeding, General's obligation is similarly discharged.  We think the result contended for is inconsistent with the insolvency clause.  It seems very clear that the payment has not been made directly to the Receiver, that the reinsurance has been diminished because of the insolvency, and the obligation of the reinsurer has ceased to be an asset of the insolvent estate.

17
Clearly the reinsurer has a right to defend against a claim on its merits, but is not given a right to reduce its obligation by taking advantage of the willingness of the insured and the insured's obligee to take less because of the insolvency.

18
We begin with the general principle that the beneficiary of the reinsurance agreement is usually the insurer (the reinsured) and not the insured under Missouri law.  "An ordinary contract of reinsurance, in the absence of provisions to the contrary, operates solely as between the reinsurer and the reinsured.  It creates no privity between the original insured and the reinsurer."   First National Bank of Kansas City v. Higgins, 357 S.W.2d 139, 142 (Mo.1962) (quoting O'Hare v. Pursell, 329 S.W.2d 614, 620 (Mo.1959)).  "[T]he liability of the reinsuring company is solely to the reinsured company, or to its receiver in the event of its insolvency."   Higgins, 357 S.W.2d at 143.  The only exception to this general rule occurs when the reinsurance contract is "drawn in such form and with such provisions so as to create a liability on the part of the reinsurer directly to the original insured."   Higgins, 357 S.W.2d at 143.  Contrary to General Reliance's assertions, this exception is inapplicable to the Agreement of Reinsurance No. 4191.  The same agreement of reinsurance has been considered by Chief Judge Oliver of the same district court, and by this court on appeal.  In General Reinsurance Corp. v. Missouri Gen. Ins., 458 F.Supp. 1 (W.D.Mo.1977), there was a claim to reinsurance proceeds upon a theory that a claimant is a third-party beneficiary of the reinsurance agreement.  Agreements in some forms have been held in Missouri to create such a right.  In rejecting the theory, Judge Oliver emphasized the clarity of the requirement of this agreement that the proceeds are to be paid to the receiver of the insolvent company.  458 F.Supp. at 4.  This court affirmed on the basis of the district court opinion, adding our own emphasis on another provision as compelling rejection of a third-party beneficiary theory.   General Reinsurance Corp. v. Mo. General Ins. Co., 596 F.2d 330 (8th Cir.1979).

19
The Missouri Supreme Court held in Homan v. Employers Reinsurance Corp., 345 Mo. 650, 136 S.W.2d 289 (1939), that "upon the insolvency of the insurer, the proceeds of the reinsurance are assets to be distributed generally amongst its creditors."    136 S.W.2d at 296.

20
The principal argument of General Reinsurance on appeal is that the Receiver has no right to reinsurance proceeds under Agreement No. 4191 until the claim is allowed by the commissioner of claims pursuant to Mo.Ann.Stat. Sec. 375.670.  (Vernon's 1968).  The P & NE claim was withdrawn after settlement, and apparently no claim was filed with respect to the B-K loss.

21
We do not think that the portion of the insolvency clause making reference to claims supports General's position.  Nor does Sec. 375.670 address the liability of a reinsurer to an insolvent insurer.  Further, General's interpretation runs counter to the holding of the Missouri Supreme Court in Clay v. Independence Mutual Insurance Co., 359 S.W.2d 679 (Mo.1962), that the appointment of the Superintendent of Insurance as receiver of an insolvent insurance company was, in effect, "an adjudication of insolvency by which the rights of the receiver became fixed."    359 S.W.2d at 683-84.  In Clay, the court considered an action by the Superintendent to recover premiums held by an agent of an insolvent insurance company at the time the company was placed in receivership.  The agent used the premiums to purchase alternative coverage for the policyholders.  The court concluded that to permit the agent to use the premiums "to purchase other insurance for these policyholders would result in refunds in full to the policyholders, thus creating a preference over other insureds and creditors."    359 S.W.2d at 684.

22
The same concerns that prompted the Clay court to fix assets due an insolvent corporation in the hands of agents dictate a limit on General's right to settle claims without the participation of Medallion's Receiver.  Indeed, without such a limit the potential exists for reinsurers not only to deny general creditors their acknowledged interest in reinsurance proceeds but also, at the same time, a reinsurer would be able to make cheap settlements with insureds facing the prospect of low dividends on their allowed claims.

23
Admittedly, where the reinsurer settles directly and obviates the determination of liability and its amount through claims procedure, there will arise questions as to proper valuation of outstanding tort claims.  But it is the reinsurer's attempt to take advantage of the insolvency which causes the difficulty.  The judgment in the P & NE case pretty solidly determined the liability of Medallion for $100,000.  Although the settlement in the B-K case, including the payment by the excess carrier, may not be an exact valuation of Medallion's liability for the B-K loss, it provides the best approximation available.

24
Accordingly, the judgment of the district court is AFFIRMED.

*
 Thomas E. Fairchild, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit, sitting by designation

1
 Medallion's policy limit on liability to P & NE was $100,000.00 plus interest.  The retention under the reinsurance agreement was $25,000.00.  The award above represents General's $75,000.00 exposure plus interest and expenses, and the amount was not disputed before the district court or on appeal


                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                              No. 10-1831

BRIAN L. DAVIS,

                  Plaintiff – Appellant,

          v.

HAMPTON PUBLIC SCHOOL DISTRICT/SPECIAL EDUCATION,

                  Defendant – Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Rebecca Beach Smith,
District Judge. (4:10-cv-00084-RBS-TEM)

Submitted:   September 28, 2010             Decided:   October 1, 2010

Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian L. Davis, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Brian   L.   Davis   appeals   the   district   court’s   order

dismissing his federal action against the Hampton Public School

District.     We have reviewed the record and find no reversible

error.   Accordingly, we affirm the district court’s judgment.

Davis v. Hampton Pub. Sch. Dist./Special Educ., No. 4:10-cv-

00084-RBS-TEM (E.D. Va. July 19, 2010).           We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                 AFFIRMED

                                     2


959 A.2d 979 (2008)
IN RE J.J.S.
No. 1263 WDA 2007.
Superior Court of Pennsylvania.
July 11, 2008.
Affirmed.


143 Pa. Commonwealth Ct. 450 (1991)
599 A.2d 276
Hugo V. ODHNER and Eudora Odhner, his wife, Appellants,
v.
The TOWNSHIP OF WOODWARD, Appellee.
Commonwealth Court of Pennsylvania.
Argued September 13, 1991.
Decided November 14, 1991.
*451 Craig P. Miller, for appellants.
Paul J. Ryan, for appellee.
Before CRAIG, President Judge, and KELLEY, J., and BARBIERI, Senior Judge.
CRAIG, President Judge.
Hugo and Eudora Odhner appeal an order by President Judge Brown of the Court of Common Pleas of Clinton County sustaining the preliminary objections of Woodward Township and dismissing the suit for lack of subject matter jurisdiction. We affirm.
*452 The Odhners presently own a mobilehome park located in Woodward Township. The township had enacted a flood control ordinance that requires, in relevant part, that mobilehomes be anchored and elevated at least one-and-one-half feet above the 100-year flood plain, and that no mobilehomes be placed in a designated floodway district or area. Woodward Township Ordinance, chapter 8, §§ 404(3)(A), (B) and (E). Section 404(5) of the ordinance further provides that a builder or landowner may request a variance if compliance with the requirements "would result in an exceptional hardship." The Odhners applied for a variance, which the Woodward Township Zoning Hearing Board denied.
On March 30, 1988, the Odhners filed a petition for appointment of viewers, which they amended after preliminary objections, alleging an inverse condemnation and requesting damages. The township filed preliminary objections to the amended petition, which the trial court sustained because the Odhners failed to allege a taking. Additionally, the trial court, finding that the Odhners alleged a variety of activities by the township for which other relief may be available, granted leave to amend the petition again.
On March 23, 1989, the Odhners filed a second amended petition for appointment of viewers, alleging that the township's conduct constitutes a de facto taking of property, and that the ordinance deprives them of the total use of their land or, alternatively, the total use of a portion of the land and the eventual total loss of use for the entire property. The township responded by filing preliminary objections, asserting that the ordinance and its enforcement does not constitute a taking.
President Judge Brown conducted an evidentiary hearing on the preliminary objections on January 25, 1990, and issued his opinion and order on January 17, 1991. The trial court held that it does not have jurisdiction to hear this matter under the Eminent Domain Code[1] because, pursuant *453 to the exclusive statutory remedies provided by the Pennsylvania Municipalities Planning Code (MPC),[2] the Odhners can seek to invalidate the ordinance, which they did not do.
The Odhners contend that the effect of the ordinance is a taking of their property; therefore, citing the U.S. Supreme Court case of First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), they claim entitlement to compensation.
The township asserts that the trial court properly dismissed the case for lack of subject matter jurisdiction because the Odhners sought a variance but did not challenge the validity of the ordinance, and because they also failed to pursue the exclusive statutory remedy of appealing the denial of their requested variance to the court of common pleas within thirty days, as required by MPC § 1002-A,[3] 53 P.S. § 11002-A.
Initially, we note that Pennsylvania courts have long adhered to the principle of § 13 of the Act of March 21, 1806, P.L. 558, 4 Sm.L. 326, 46 P.S. § 156, since repealed but re-codified at 1 Pa.C.S. § 1504, that
[i]n all cases where a remedy is provided or a duty is enjoined or anything is directed to be done by any statute, the directions of the statute shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the common law, in such cases, further than shall be necessary for carrying such statute into effect.
Section 1001-A of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11001-A, specifies that "[t]he procedures set forth in this article shall constitute the exclusive mode for securing review of any decision rendered pursuant to Article IX or deemed to have been made under this act." (Emphasis added.) Because a municipality's authority to enact its local zoning ordinances is vested by the MPC, any challenge as to the effect of an ordinance *454 must be raised initially in accordance with the provisions of the MPC.
In Jacobs v. Fetzer, 381 Pa. 262, 112 A.2d 356 (1955), a landowner sought a zoning reclassification of his property for the purpose of building two-family houses. The local borough council denied the request, and the landowner filed a complaint in equity alleging zoning discrimination. The trial court granted the relief sought, but the Pennsylvania Supreme Court, applying § 13 of the Act, reversed and dismissed the suit for lack of jurisdiction because the landowner failed to appeal the council's denial to the board of adjustment, as mandated by the borough's zoning ordinance.
In the case of Gaebel v. Thornbury Township, 8 Pa.Commonwealth Ct. 399, 303 A.2d 57 (1973), this court resolved a factual situation where a township rezoned a landowners' property from commercial to flood plain. The landowners petitioned under the Eminent Domain Code for an appointment of viewers to ascertain an award of just compensation. The township filed preliminary objections, which the trial court sustained.
On appeal, this court held that there was no cause of action under the Eminent Domain Code because the owners' exclusive recourse was to challenge the validity of the ordinance under the provisions of review established by the MPC. This court further held that remedies under the Eminent Domain Code would be available only when the township, "clothed with a power of condemnation given to it by statute, substantially deprived the [landowners] of the beneficial use and enjoyment of their property by the statutorily provided condemnation procedure, or otherwise." Id., 8 Pa.Commonwealth Ct. at 404, 303 A.2d at 60.
Likewise, in Kraiser v. Horsham Township, 72 Pa.Commonwealth Ct. 16, 455 A.2d 782 (1983), this court followed Gaebel in affirming a trial court's dismissal of a petition for appointment of viewers, filed under the Eminent Domain Code by a landowner who alleged that the township's flood plain ordinance resulted in a de facto taking of his property.
*455 The Odhners argue that the trial court has jurisdiction to grant their petition because the U.S. Supreme Court ruled in First English that the Fifth and Fourteenth Amendments of the United States Constitution require "that a landowner who claims that his property has been `taken' by a land-use regulation may ... recover damages for the time before it is finally determined that the regulation constitutes a `taking' of his property." Id., 482 U.S. at 306-07, 107 S.Ct. at 2381.
However, the U.S. Supreme Court has also held that a landowner must obtain a final decision regarding the application and validity of the zoning ordinance before a claim for compensation is ripe for review. Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). The Court, which reversed the Court of Appeals' award of damages resulting from a temporary taking and remanded the case for further proceedings, stated that the landowner must first attempt to obtain relief against the application of the regulation because "the Commission's denial of [subdivision] approval does not conclusively determine whether respondent will be denied all reasonable beneficial use of its property, and therefore is not a final, reviewable decision." Id., 473 U.S. at 194, 105 S.Ct. at 3120.
The Odhners rely upon McClimans v. Board of Supervisors of Shenango Township, 107 Pa.Commonwealth Ct. 542, 529 A.2d 562 (1987), to support their proposition that this court has recognized the applicability of First English in cases such as the present. In McClimans, the court stated that "[i]f the effect of the zoning law or regulation is to deprive a property owner of the lawful use of his property, it amounts to a `taking,' for which he must be justly compensated." Id., 107 Pa.Commonwealth Ct. at 555, 529 A.2d at 568 (quoting Cleaver v. Board of Adjustment, 414 Pa. 367, 372, 200 A.2d 408, 412 (1964) (emphasis omitted)). However, this court did not reach its conclusion until the case was ripe for such disposition, i.e., the landowners exhausted their statutory remedy of filing a request for a *456 curative amendment (which a board of supervisors denied), and then appealing the adverse decision to the common pleas court.
We recognize that a landowner, subjected to a temporary taking, can be entitled to compensation for the deprivation of the use of the property during the time period which precedes a decision invalidating the regulation, McClimans. However, until the landowner has pursued the remedies provided within the MPC to invalidate the ordinance, a compensation claim for the temporary taking is not ripe.
Accordingly, we affirm the decision of the common pleas court.

ORDER
NOW, November 14, 1991, the order of the Court of Common Pleas of Clinton County, dated January 17, 1991, at 39-88 Misc., is affirmed.
NOTES
[1]  Act of June 22, 1964, Special Sess.P.L. 84, as amended, 26 P.S. §§ 1-101 through 1-903.
[2]  Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 through 11202.
[3]  Added by the Act of December 21, 1988, P.L. 1329.


520 F.Supp.2d 1048 (2007)
Mohammed M. SALEEM, A# XX XXX XXX, Plaintiff,
v.
Peter D. KEISLER,[1] Michael Chertoff, Kay Leopold, Ruth Dorochoff, Emilio Gonzales, Defendants.
No. 06-C-712-C.
United States District Court, W.D. Wisconsin.
October 26, 2007.
*1049 Erik Peterson, U.S. Attorney, W.D. of Wisconsin, Madison, WI, for Defendants.

OPINION AND ORDER
BARBARA B. CRABB, District Judge.
The question in this case is whether a remedy in federal district court exists for the failure of immigration officials to decide a noncitizen's application for adjustment of status from nonimmigrant to permanent resident. Plaintiff Mohammed Saleem, an Indian citizen seeking permanent residence in the United States, contends that jurisdiction for his claim is present under 28 U.S.C. § 1331 and that the government can be compelled to act under either the Mandamus Act, 28 U.S.C. § 1361, or the Administrative Procedures Act, 5 U.S.C. §§ 701-706. Defendants, who are immigration officials, say that under 8 U.S.C. 1252(a)(2)(B), this court lacks jurisdiction to hear the case and that plaintiff has no right to receive a decision "within any particular time frame."
The case is before the court on plaintiff's motion for summary judgment. Because I conclude that subject matter jurisdiction exists and that defendants have violated the APA by failing to adjudicate plaintiff's application after almost five years have passed, I will grant plaintiff's motion.
From the parties' proposed findings of fact, I find the following facts to be undisputed.

UNDISPUTED FACTS

A. Plaintiff's Application

Plaintiff Mohammed Saleem is a citizen of India. Defendant Peter Keisler is Acting Attorney General of the United States; defendant Michael Chertoff is Secretary of the Department of Homeland Security; defendant Emilio Gonzales is Director of the United States Citizenship and Immigration Services; defendant Ruth Dorochoff is the district director for Immigration Services in Chicago; defendant Kay Leopold is the officer-in-charge for Immigration Services in Milwaukee.
In 1999, plaintiff applied for and received an "H 1-B" visa, which is a nonimmigrant visa that authorizes a temporary stay in the United States "to perform services . . . in a specialty occupation." 8 U.S.C. 1101(15)(h)(i)(B). In November 2002, after plaintiff received approval for his I-140 petition ("Immigrant Petition for Alien Worker"), he applied for status as a permanent resident under 8 U.S.C. § 1255, using Form I-485.
Plaintiff has not received a decision on his application. In June 2006, December 2006 and April 2007, plaintiff made inquiries at the United States Citizenship and Immigration Services regarding the status of his application. (Authority to grant applications is shared by the Attorney General, 8 U.S.C. 1255(a), and the Department of Homeland Security, 6 U.S.C. § 271(b)(5), which includes the United States Citizenship and Immigration and Services.) Each time plaintiff made an inquiry, he was told either nothing at all or that his application had not yet been decided.

B. Application Approval Process

When the United States Citizenship and Immigration Services receives an alien's *1050 application for an adjustment of status, the agency conducts mandatory security background checks. The checks include an FBI name check, an FBI fingerprint check and a check of the Interagency Border Inspection System, which contains information collected from various federal law enforcement and intelligence agencies. Under the policy of the immigration agency, all of these checks must be completed before the agency decides whether to grant or deny an application for adjustment of status.

OPINION

A. Subject Matter Jurisdiction

Plaintiff's motion for summary judgment raises several questions, but each is related to defendants' discretion in deciding applications for an adjustment of status. The threshold question is jurisdictional. Defendants concede that plaintiff's claim raises a federal question under 28 U.S.C. § 1331, but they argue that 8 U.S.C. § 1252(a)(2)(B) strips courts of jurisdiction with respect to any matter relating to an adjustment of status under 8 U.S.C. § 1255.
The relevant portion of 8 U.S.C. § 1252(a)(2)(B) reads as follows: "Notwithstanding any other provision of law . . . no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." (emphasis added). Thus, before I may dismiss this case for lack of jurisdiction under § 1252, I must conclude that: (1) plaintiff is challenging a "decision or action" of defendants; and (2) such an action has been "specified under this subchapter to be in the discretion" of defendants.
Before resolving these questions, I acknowledge that I am not writing on a blank slate. Although it appears that no appellate court has yet considered a claim like plaintiff's, numerous district courts have done so over the last few years. Defendants leave the impression in their brief that the great weight of authority favors their position, Dfts.' Br., dkt. # 12, at 13, but this is a little disingenuous. Although it is true that a significant number of courts have concluded that jurisdiction does not exist to consider a claim involving a failure to adjudicate an application for an adjustment of status, at least as many courts have come to the opposite conclusion. Compare Chehab v. Chertoff, No. 07-11068, 2007 WL 2372356 (E.D.Mich. Aug. 17, 2007) (concluding that court lacked jurisdiction to hear case to compel immigration officers to decide application for adjustment in status); Qiu v. Chertoff, 486 F.Supp.2d 412 (D.N.J.2007) (same); Sharif v. Chertoff, 497 F.Supp.2d 928 (N.D.Ill.2007); Li v. Chertoff, 482 F.Supp.2d 1172 (S.D.Cal.2007); Rogatch v. Chertoff, No. CA 06-541ML, 2007 WL 1160358 (D.R.I. Apr. 17, 2007) (same); Mustafa v. Pasquerell, No. Civ.SA05CA-658-XR, 2006 WL 488399 (W.D.Tex. Jan. 10, 2006) (same); Zhang v. United States Citizenship & Immigration Service, No. 05 Civ. 4086(RJH)(AJP), 2005 WL 3046440 (S.D.N.Y. Nov. 8, 2005) (same); Zheng v. Reno, 166 F.Supp.2d 875 (S.D.N.Y.2001) (same) with Linville v. Barrows, 489 F.Supp.2d 1278 (W.D.Okla.2007) (concluding that § 1252 does not bar judicial review of a failure to adjudicate application for adjustment of status); Xu v. Chertoff, No. 07-366(DMC), 2007 WL 2033834 (D.N.J. July 11, 2007) (same); Yon Yang v. Gonzales, No. 2:07-cv-050, 2007 WL 1726501 (S.D.Ohio June 11, 2007) (same); Song v. Klapakas, No. 06-05589, 2007 WL 1101283 (E.D.Pa. Apr. 12, 2007) (same); Elmalky v. Upchurch, Civil Action No. *1051 3:06-CV-2359-B, 2007 WL 944330 (N.D.Tex. Mar. 28, 2007) (same); Haidari v. Frazier, Civil No. 06-3215 (DWF/AJB), 2006 WL 3544922 (D.Minn. Dec. 8, 2006) (same); Kim v. Ashcroft, 340 F.Supp.2d 384 (S.D.N.Y.2004) (same); Batista v. INS, No. 99 Civ. 2847 MBM, 2000 WL 204535 (S.D.N.Y. Feb. 22, 2000) (same). See also Zeng v. Upchurch, Civil No. 2:06-cv-112, 2007 WL 2694253, *2 (D.N.D. Sep. 11, 2007) (noting that "[d]istrict courts are more or less divided on this matter").
These cases represent only a small sampling of the total. In fact, barely a day has gone by in recent weeks without a new decision weighing in on what has become a national judicial debate. Having reviewed a great many of these decisions, I conclude that those favoring jurisdiction have the better of the argument.
1. Decision or action
I begin with the question whether plaintiff is challenging a "decision or action" of defendants. Of course, a "decision" means that something must be decided. Although an "action" has a broader meaning, it too suggests that some conclusion has been made about the appropriate course to take. Dong v. Chertoff, No. C 07-0266 SBA, 513 F.Supp.2d 1158 (N.D.Cal.2007) ("The phrase `decision or action' connotes some affirmative conduct by the Attorney General."). Because plaintiff's claim is premised on defendants' refusal to make a "decision" or to take "action" on his application, I must conclude that § 1252(a)(2)(B) is not implicated in this case.
Defendants' view that plaintiff is challenging an "action" contradicts not only common sense, but also the court of appeals' interpretation of § 1252(a)(2)(B), which makes it clear that the statute does not bar review of a refusal to adjudicate. In Iddir v. INS, 301 F.3d 492 (7th Cir. 2002), a case that defendants do not acknowledge, the plaintiffs sought a writ of mandamus to compel the INS to adjudicate an application for an adjustment of status under the Diversity Visa Lottery Program. In that case the Solicitor General conceded that the court had jurisdiction "to hear immigration cases in which the INS wholly fails to adjudicate an applicant's status and either grant or deny relief." Id. at 496. The court agreed, holding that § 1252(a)(2)(B) "only bars review of actual discretionary decisions to grant or deny relief under the enumerated sections, including section 1255." Id. at 497.
In coming to this conclusion the court noted the important difference "between discretionary action or decision, such as a denial of relief or decision to defer, and complete inaction and failure to make any decision." Id. In addition, it cited Nyaga v. Ashcroft, 186 F.Supp.2d 1244, 1250-53 (N.D.Ga.2002), for the proposition that "seeking remediation of lack of action . . . is not barred" by § 1252(a)(2)(B). See also Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir.1997) ("when the suit challenges the authority of the consul to take or fail to take an action as opposed to a decision taken within the consul's discretion, jurisdiction exists").
A conclusion that district courts have jurisdiction to remedy a refusal to adjudicate is not contrary to cases cited by defendants and other district courts, in which the Supreme Court has stated, as defendants put it, "that judicial review in immigration matters is narrowly circumscribed." E.g., Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ("Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character *1052 more appropriate to either the Legislature or the Executive than to the Judiciary."), cited in Dfts.' Br., dkt. # 12, at 13 n. 3; Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) ("The power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications."), cited in Zhanq v. Secretary of Homeland Security, No. 1:07CV224, 2007 WL 2572179, *3 (N.D.Ohio Aug. 31, 2007). These are cases about judicial deference to policy judgments made by the executive branch. In this case, defendants have made no decision to which I can defer.
Most courts concluding that § 1252 bars review of a failure to adjudicate an application simply have ignored the question whether the plaintiff is challenging a "decision or action" of the defendants, but instead jump ahead to the question whether a refusal to act is "discretionary." However, defendants cite one case, Safadi v. Howard, 466 F.Supp.2d 696, 699 (E.D.Va. 2006), in which the court concluded that an "action" under § 1252(a)(2)(B) encompasses not just final decisions but "any act or series of acts that are discretionary within the adjustment of status process."
This argument in Safadi is a red herring because an exercise of jurisdiction over plaintiff's claim is not contingent on whether an "action" is a final decision or includes interim actions taken along the way. The logic of Safadi would have force if plaintiff were challenging defendants' decision to conduct certain background checks or the actions taken in furtherance of that decision. E.g., Ali v. Gonzales, Nos. 06-3240, 06-3879, 502 F.3d 659, 661 (7th Cir.2007) (concluding that § 1252(a)(2)(B) bars review of "interim orders entered along the road to an unreviewable final order"). But plaintiff is not challenging any interim action of defendants, only their failure to act. Thus, no matter how narrowly a court defines "action," it would require an Orwellian twisting of the word to conclude that it means a failure to adjudicate. Liu v. Novak, Civil Action No. 07-263(EGS), 509 F.Supp.2d 1, 4-8 (D.D.C.2007) ("the argument in Safad[i] essentially finds that inaction is within the `plain meaning' of action"). A second case on which defendants rely is Grinberg v. Swacina, 478 F.Supp.2d 1350 (S.D.Fla.2007), which in turn relied heavily on Safadi. However, in Grinberg the court relied on a different rationale that "if Congress intended to confer jurisdiction on a federal court to review the pace of adjudication for adjustment of status applications, it would have expressly provided for a time limitation in 8 U.S.C. § 1255(a)." Id. at 1352. See also Li v. Gonzales, Civil Action No. 06-5911(SRC), 2007 WL 1303000, *4 (D.N.J. May 3, 2007) (adopting same reasoning).
In addition to conflating the jurisdiction question with the merits of the case, the reasoning in Grinberg reverses the ordinary presumption regarding review of administrative decisions. The question is not whether evidence exists to show that Congress intended to allow review; rather the question is whether there is "clear and convincing" evidence that Congress intended to preclude review. Iddir, 301 F.3d at 496. In other words, the strong presumption is that jurisdiction exists under § 1331 unless Congress has made it clear that it has carved out an exception.
When this presumption is considered along with the "general presumption in favor of judicial review of administrative acts," id., and the requirement to "resolve ambiguities in favor of the aliens and find *1053 jurisdiction to hear the grievance," id. at 497, it becomes clear that it is inappropriate to infer a congressional intent to remove jurisdiction simply from the absence of a statutory deadline for making a decision. Although congressional silence on this point may inform the resolution of the merits of this case (whether defendants have waited too long to decide plaintiff's application), the court in Grinberg cited no other situations in which Congress's failure to impose a deadline was construed as a withdrawal of jurisdiction that would otherwise be present. Liu, at 5-6 (concluding that presumptions in favor of jurisdiction required court to consider merits of plaintiff's claim that defendants failed to adjudicate application for change in status).
Most of the courts concluding that they lacked jurisdiction to hear cases like plaintiff s relied solely on the reasoning of Safadi or Grinberg, including Bugulu v. Gonzalez, 490 F.Supp.2d 965 (W.D.Wis.2007) (Shabaz, J.). Because I do not find the reasoning of Safadi or Grinberg persuasive, I must respectfully disagree with the decision reached by the court in Bugulu as well.
2. Specified under this subchapter to be discretionary
My conclusion that a failure to adjudicate an application is not a "decision or action" within the meaning of § 1252(a)(2)(B)(ii) is sufficient to reject defendants' argument that this court lacks jurisdiction to hear this case. However, even if I were to conclude that plaintiff is seeking review of a "decision or action," I could not dismiss this case under § 1252(a)(2)(B) unless I concluded as well that the "action" challenged by plaintiff has been "specified under this subchapter to be in the discretion" of defendants.
The parties agree that "this subchapter" includes 8 U.S.C. § 1255, which makes adjustment of status determinations discretionary. 8 U.S.C.A. § 1255(a) ("The status of an alien . . . may be adjusted by the Attorney General, in his discretion . . ."). See also Iddir, 301 F.3d at 497 (§ 1252(a)(2)(B) "bars review of actual discretionary decisions to grant or deny relief under the enumerated sections, including section 1255"). But, as discussed above, the question raised by plaintiff is not whether defendants have made an appropriate decision regarding his application for an adjustment of status but rather whether they are required to make a decision at all. Because § 1255(a) is silent on this question, that statute does not provide a basis for removing jurisdiction under § 1252(a)(2)(B). Singh v. Still, 470 F.Supp.2d 1064, 1067 (N.D.Cal.2007) ("there is a difference between the . . . discretion over how to resolve an application and the . . . discretion over whether [the agency] resolves an application"); Haidari, 2006 WL 3544922, at *4 (distinguishing the discretionary decision of whether to grant or deny an adjustment application from the mandatory duty to make any decision).
Somewhat surprisingly, a number of courts have concluded that defendants do have discretion whether to adjudicate an application for an adjustment in status. Li, 2007 WL 1303000, at*5; Elzerw v. Mueller, Civil Action No. 07-00166, 2007 WL 1221195, *2 (E.D.Pa. Apr. 23, 2007); Safadi, 466 F.Supp.2d at 699. In coming to this conclusion, they observe correctly that neither a statute nor a federal regulation contains an express command to do so. I conclude that this is another red herring. For the purpose of determining whether § 1252 bars judicial review, the question is not whether a statute expressly imposes a duty on defendants to make a decision but whether a statute expressly *1054 "specifie[s]" defendants' authority to exercise their discretion on a particular matter. Cao v. Upchurch, 496 F.Supp.2d 569, 573 (E.D.Pa.2007) ("While 8 U.S.C. 1255(a) specifically places the decision of whether to adjust status in the discretion of the Attorney General, it says nothing about the pace of such a decision, and certainly does not confer on the Attorney General discretion to let such a petition languish indefinitely.").
In any event, I agree with those courts that have concluded that a nondiscretionary duty may exist even in the absence of precise language directing defendants to adjudicate an application for an adjustment of status within a particular time period. E.g., Hu v. Reno, No. 3-99-CV-1136-BD, 2000 WL 425174, *3 (N.D.Tex. Apr. 18, 2000); Yu v. Brown, 36 F.Supp.2d 922, 931 (D.N.M.1999). For one thing, although the statutes do not contain an explicit command, the regulations are drafted on the assumption that defendants will decide each application. 8 C.F.R. § 245.6 ("Each applicant for adjustment of status under this part shall be interviewed by an immigration officer."); 8 C.F.R. § 245.2 ("the applicant shall be notified of the decision of the director, and, if the application is denied, the reasons for the denial"); id. ("the director shall record the alien's admission for lawful permanent residence"). See also 8 U.S.C. § 1103 ("The Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens.") In similar contexts, the court of appeals has inferred a nondiscretionary duty to adjudicate an application despite the absence of statutory language including a specific command to do so. Iddir, 301 F.3d at 499-500.
More generally, and more important, the duty of defendants to decide applications for a change in status may be inferred from Congress's statutory authorization to noncitizens to submit an application. As the court of appeals recognized in Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004), it is "unlikely that Congress, intending, as it clearly did, to entitle . . . aliens to seek an adjustment of status . . . at the same time also intended section 1252(a)(2)(B)(ii) to place beyond judicial review decisions by the immigration authorities that nullified the statute." In other words, a right to request relief inherently implies a corresponding obligation to respond. To say otherwise not only encourages irresponsible governance, but allows one branch of government simply to ignore the law, calling into question the rule of law itself. Duan v. Zamberry, Civil Action No. 06-1351, 2007 WL 626116, *3 (W.D.Pa. Feb. 23, 2007) (noting "potential for abuse" and "purposeful disregard" for law on immigration matters if § 1255(a) were interpreted as giving defendants discretion whether to decide applications).
Perhaps sensing the troubling implications of an argument that they have carte blanche to ignore applications authorized by statute, even defendants concede that they have a statutory obligation to adjudicate adjustment of status applications. Dfts.' Br., dkt. # 13, at 3. Once defendants make this concession, they have backed themselves into a corner. Although they argue that they have discretion over the "pace" of the decision making process (and, therefore, that § 1252(a)(2)(B) deprives this court of the power to review that "pace"), that argument is flatly inconsistent with their concession.
If defendants have unreviewable discretion to decide an application whenever they want, the authority for this comes from § 1255(a), which, as noted above, states that "[t]he status of an alien . . . *1055 may be adjusted by the Attorney General, in his discretion." Although a colorable argument may exist that § 1255 grants discretion with respect to any matter involving an application for an adjustment in status, there is simply no plausible reading of the provision supporting a view that the statute does not grant discretion regarding whether an application must be decided but does grant discretion regarding whether there are time limits for making that decision. Tellingly, defendants point to no textual basis for making such a distinction and I do not see one.
Defendants' position is inconsistent on a more practical level as well. If defendants have an obligation to decide applications but have unfettered discretion to put off deciding an application for as long as they want, how could the duty to decide ever be judicially enforced? Under defendants' view, the answer to that question would be never, except perhaps if they expressly refused to make a decision. So long as defendants say that they are still reviewing the application (or even if they say nothing at all), an applicant must continue to wait indefinitely, no matter how long the delay has been. Such discretion would strip defendants' duty of any meaning: "The duty to act is no duty at all if the deadline is eternity." Tang v. Chertoff, 493 F.Supp.2d 148, 149 (D.Mass.2007). See also Lopez v. Secretary, Dept. of Homeland Security, No. 6:07-cv-735-Orl-31KRS, 2007 WL 2728353, *2 (M.D.Fla. Sept. 17, 2007) ("If the Defendant's argument is followed to its logical conclusion, the Attorney General would have discretion to simply ignore a status application and delay its resolution indefinitely. Surely, the Attorney General does not have such discretion.")
A number of courts have concluded that 8 C.F.R. § 103.2(b)(18) deprives courts of jurisdiction to review a failure to adjudicate and have criticized other courts for failing to consider the regulation's importance. E.g., Qiu, 486 F.Supp.2d at 418-19 ("The Court finds it instructive that none of the cases holding that a non-discretionary duty exists to process I-485 applications have discussed the implications of § 103.2(b)(18)."); see also Emamian v. United States Dept. of Homeland Security, No. SA-06-CA-0789-RF, 2007 WL 3047213, *2 (W.D.Tex. Oct. 11, 2007); Tao v. Mueller, Civil No. 07-804(RBK), 2007 WL 2459423, *3 (D.N.J. Aug. 23, 2007); Li, 2007 WL 1303000, at *5. Although defendants do not rely on § 103.2(b)(18), because courts have an independent obligation to determine the existence of subject matter jurisdiction, I will consider the effect of the regulation on this court's authority to hear this case.
Under the relevant provision:
A district director may authorize withholding adjudication of a visa petition or other application if the district director determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion, where applicable, in connection with the application or petition, and that the disclosure of information to the applicant or petitioner in connection with the adjudication of the application or petition would prejudice the ongoing investigation. If an investigation has been undertaken and has not been completed within one year of its inception, the district director shall review the matter and determine whether adjudication of the petition or application should be held in abeyance for six months or until the investigation is completed, whichever comes sooner. If, after six months of the district director's determination, the investigation has not been completed, the matter shall be reviewed *1056 again by the district director and, if he/she concludes that more time is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If the investigation is not completed at the end of that time, the matter shall be referred to the regional commissioner, who may authorize that adjudication be held in abeyance for another six months. Thereafter, if the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement, determines it is necessary to continue to withhold adjudication pending completion of the investigation, he/she shall review that determination every six months.
8 C.F.R. § 103.2(b)(18). Although this regulation grants defendants discretion in the sense that it provides authority to withhold adjudication under a particular set of circumstances, it does not deprive this court of jurisdiction.
First, it must be remembered that § 1252(a)(2)(B) does not bar review of any discretionary act by defendants, but only those discretionary acts the "authority for which is specified under this subchapter." Obviously, because § 103.2(b)(18) is a regulation and not a statute, any discretion granted by the regulation is not "specified under this subchapter" for the purpose of acting as a bar to judicial review. Soltane v. United States Dept. of Justice, 381 F.3d 143, 146 (3d Cir.2004) ("the language of the statute in question must provide the discretionary authority before the bar [under § 1252(a)(2)(B)] can have any effect"); Zafar v. United States Attorney General, 426 F.3d 1330, 1335 (11th Cir.2005) (holding that if acts "are not statutorily-proscribed," they are not "discretionary acts" within meaning of § 1252(a)(2)(13) and are subject to judicial review).
Second, courts relying on § 103.2(b)(18) have assumed without explanation that the regulation would bar review even if the defendants do not claim to have followed the procedures under the regulation. I agree with those courts that have concluded that whatever discretion § 103.2(b)(18) grants, the regulation could not preclude judicial review unless the defendants actually exercised their discretion pursuant to the regulation. Tang v. Chertoff, Civil Action No. 07-203-JBC, 2007 WL 2462187, *4 (E.D.Ky. Aug. 29, 2007) ("[W]hile the regulation gives authority to withhold adjudication on an adjustment of status, this must be done consistent with the terms of the regulation."); Lin v. Chertoff, No. CIV-07-382-F, 2007 WL 2301118, at *2 (W.D.Okla. Aug. 8, 2007) (refusing to dismiss case under § 103.2(b)(18) because "defendants have not submitted any evidence that they exercise any discretion pursuant to 8 § 103.2(b)(18)").
This conclusion is consistent with Subhan, 383 F.3d at 595, in which the Court of Appeals for the Seventh Circuit held that § 1252(a)(2)(B) did not extend to a decision that did not involve an exercise of discretion. In Subhan, the plaintiff attempted to appeal an immigration judge's denial of a motion for a continuance, but the government invoked § 1252(a)(2)(B) as barring review. Although the court of appeals assumed that a denial of a motion for a continuance would ordinarily be a discretionary act covered by § 1252(a)(2)(B), it held that the denial was not discretionary in the case before it because the immigration judge had failed to give a reason for his decision. The court explained: "When a request for an adjustment of status is denied there is no judicial review because the denial is one of the discretionary orders expressly made nonreviewable by section 1252(a)(2)(B). But no discretion was exercised here to deny a requested adjustment of status; instead, the denial of the *1057 continuance prevented the alien from obtaining action on his request." Id. at 594.
The principle articulated in Subhan is similar to that discussed above with respect to whether a failure to act is an "action" under § 1252(a)(2)(B). The purpose of § 1252(a)(2)(B) is to "shield from judicial review judgments regarding the propriety of adjusting an alien's status," Subhan, 383 F.3d at 594, not to permit a refusal to act at all. In other words, defendants may not obtain the benefit of a statute that protects "discretionary" acts when they have not exercised any discretion. Because defendants do not suggest that they followed the procedures outlined in § 103.2(b)(18), that regulation cannot provide a basis for dismissing this case for a lack of jurisdiction.

B. Right of Action

Having concluded that this court has jurisdiction to hear the case, I turn to the merits. Like most other parties seeking an adjudication of an application for an adjustment of status, plaintiff seeks to compel action under the Administrative Procedure Act and the Mandamus Act. Under the APA, courts are authorized to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1); see also 5 U.S.C. § 555(b) ("within a reasonable time, each agency shall proceed to conclude a matter presented to it"). Under the Mandamus Act, relief will be granted if the plaintiff can demonstrate (1) a clear right to the relief sought; (2) the defendant has a duty to do the act in question; and (3) no other adequate remedy is available. Iddir, 301 F.3d at 499. Because I conclude that plaintiff is entitled to relief under the APA, it is unnecessary to decide whether plaintiff is entitled to relief under § 1361. Valona v. United States Parole Commission, 165 F.3d 508, 510 (7th Cir.1998) ("APA . . . authorizes district courts to `compel agency action unlawfully withheld or unreasonably delayed' without the need of a separate action seeking mandamus.").
Defendants begin' their argument about the APA by saying that it does not provide plaintiff with a right of action. They rely on 5 U.S.C. § 701(a), which says that the requirements of the APA do not apply if "agency action is committed to agency discretion by law." Because I have already concluded that defendants' duty to decide applications for an adjustment of status is not discretionary, I will limit my discussion of this question to arguments unique to the APA.
Defendants' primary argument is that the "pace" of adjudication is committed to their discretion within the meaning of § 701 because there is no statutory deadline for making a decision. In support, defendants cite Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), but this is quite a stretch. Heckler did not hold that agencies cannot be compelled to act in the absence of an express deadline. Rather, in Heckler the Court held only that a matter is "committed to agency discretion" under § 701 "in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply." Id. at 830, 105 S.Ct. 1649 (internal citations and quotations omitted). The facts in Heckler involved an agency's refusal to enforce an asserted violation of the law, a decision that is "presumptively unreviewable." Id. at 832, 105 S.Ct. 1649. The Court concluded that the plaintiffs could not rebut this presumption because the relevant statute provided no guidelines for determining when an enforcement action should be initiated. Id. at 833-34, 105 S.Ct. 1649.
In this case, the APA itself provides the appropriate standard of review ("unreasonable delay"), so Heckler is not instructive. Yu, 36 F.Supp.2d at 931-32 ("the APA *1058 itself imposes on them the duty to complete action on Plaintiffs' application within a reasonable time"). Defendants cite no authority for the proposition that a reasonableness standard is so broad as to provide no guidance.
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), and Brock v. Pierce County, 476 U.S. 253, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986), are two other cases on which defendants rely for the proposition that there can be no unreasonable delay unless the agency fails to meet a specific statutory deadline. These are a little closer to the mark, but not by much. The holding in both cases was unrelated to the meaning of "unreasonable delay" under § 706. The question in Norton was whether the agency had failed to take a "discrete agency action" required by statute; in Brock, the Court considered whether an agency lost authority to act after missing a statutory deadline. In both cases the Court made statements in dicta that § 706 would authorize courts to compel an agency to comply with a statutory deadline, Norton, 542 U.S. at 65, 124 S.Ct. 2373; Brock, 476 U.S. at 260 n. 7, 106 S.Ct. 1834, but the Court did not suggest in either case that § 706 was limited to compelling action under those circumstances. Alkeylani v. Dept. of Homeland Security, 514 F.Supp.2d 258, 264 (D.Conn. 2007) (rejecting argument that Norton required denial of relief in case challenging failure to adjudicate application for adjustment in status).
Although it does not appear that the Court of Appeals for the Seventh Circuit has defined "unreasonable delay" under § 706(1), other courts have held that an unreasonable delay may be found even if the "agency has no concrete deadline establishing a date by which it must act." Forest Guardians v. Babbitt, 164 F.3d 1261, 1271 (10th Cir.1998); see also Frey v. EPA, 403 F.3d 828, 834 (7th Cir.2005) (in dicta, expressing doubt that EPA should be protected from review "as long as [the agency] has any notion that it might, some day, take further unspecified action"); 2 Am.Jur.2d Administrative Law § 379 ("Even though agency action may be subject to no explicit time limit, a court may compel an agency to act within a reasonable time."). In a number of cases in which the plaintiff sought to compel action under § 701, the defendants did not even raise the argument that a statutory deadline is a prerequisite to such a suit and the courts proceeded as if no such limitation existed. E.g., Reddy v. Commodity Futures Trading Commission, 191 F.3d 109, 120 (2d Cir.1999); In re City of Virginia Beach, 42 F.3d 881, 885 (4th Cir.1994); Silverman v. NLRB, 543 F.2d 428, 430 (2d Cir.1976).
This lack of argument is not surprising because an interpretation of "unreasonably delayed" to mean only "beyond a statutory deadline" would render the phrase superfluous. Section 706(1) gives courts authority to "compel agency action unlawfully withheld or unreasonably delayed." (Emphasis added.) If an agency failed to meet an explicit statutory deadline, that would be agency action "unlawfully withheld." If "unreasonably delayed" has any independent meaning (as it is presumed to have, TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001)), it must refer to agency inaction in the absence of an explicit deadline.

C. Unreasonable Delay

This leaves the question whether defendants' delay is in fact unreasonable under § 706. Certainly, there is no clear bright line separating a reasonable delay from an unreasonable one. But courts are not left completely without standards, contrary to defendants' assertion. The factors courts *1059 consider in assessing reasonableness are predictable: the length of the delay, the complexity of the matter under review, the relative fault of the parties in causing the delay and the effect that compelling, action will have on the parties and others. Reddy, 191 F.3d at 120; Forest Guardians, 164 F.3d at 1269; Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 74 (D.C.Cir.1984); Linville, 489 F.Supp.2d at 1282-83.
A preliminary question is which party has the burden to prove the reasonableness or unreasonableness of the delay. Neither side discusses this issue. My review of the case law does not reveal a clear answer. Rather, most courts appear to place the burden on one side or the other without explanation. In my view, it makes sense to place at least some of the burden on the parties with the best access to the information, which in this case is defendants. Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 96, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) ("where fairness so requires, burden of proof of a particular fact may be assigned to `party who presumably has peculiar means of knowledge' of the fact") (quoting 9 J. Wigmore, Evidence § 2486 (J. Chadbourn rev. ed.1981)); Secaida-Rosales v. INS, 331 F.3d 297, 313 (2d Cir.2003) ("while [plaintiff] bears the burden of proof, a burden of production rests with the INS as the party with greater access to information"); National Communications Association Inc. v. AT & T Corp., 238 F.3d 124, 130 (2d Cir.2001) ("all else being equal, the burden is better placed on the party with easier access to relevant information"). Of course, defendants know much better than plaintiff why the decision has taken as long as it has and are in a much better position to explain the delay.
To the extent plaintiff has a burden, I conclude that he has made a prima facie showing of unreasonableness, The facts show that defendants have had five years to perform three background checks on plaintiff before adjudicating his application. Important as these checks are, common sense suggests that in the absence of special circumstances, the investigation should not require five years to be conducted adequately. Liu, 501 F.Supp.2d at 9-11 ("As defendants have described the name check process as one where data is primarily retrieved from an electronic database, and only occasionally from paper records, it does not seem reasonable to the Court that this process would take over four years to complete."); Doug, at 1169-72 ("According to the documents submitted by the defendants, only 20 percent of FBI name checks take up to six months to resolve, and less than one percent remain pending for more than six months.")
Defendants have made no effort to show that special circumstances are present that would justify the delay. They propose no facts suggesting that plaintiff's application presents any unusual challenges or complications that would require extra time, that plaintiff himself is responsible for the delay as the result of providing incorrect information or that their administrative burden is so great that five years is simply not enough time to perform three background checks.
In their brief, defendants devote only four sentences to arguing that their delay in adjudicating plaintiff's application is a reasonable one. Even these constitute little more than citations to other cases in which courts have denied relief to plaintiffs who have waited four years or more for a decision on an application for an adjustment of status. However, in all but one of these cases, the court denied relief not because it concluded that four or more years was a reasonable amount of time to adjudicate an application, but because the *1060 court concluded that it lacked jurisdiction to hear the case. Patel v. Chertoff, No. 4:06CV01207 ERW, 2007 WL 1223553 (E.D.Mo. Apr. 24, 2007); Grinberg, 478 F.Supp.2d 1350; Safadi, 466 F.Supp.2d 696. (Patel is somewhat equivocal on this point because it appears to conflate the questions of jurisdiction and reasonableness. However, the court concluded by saying it did not have "jurisdiction pursuant to the APA," Patel, 2007 WL 1223553, at *3.) The remaining case cited by defendants, Saleh v. Ridge, 367 F.Supp.2d 508 (S.D.N.Y.2005), is not persuasive because it did not require defendants to provide any individualized explanation for the delay, but simply noted that the defendants had many applications to process. Even Saleh is distinguishable because in that case the defendants at least had provided the plaintiff with an estimated time for making a decision.
Further, Saleh is the only case I have found in which the court found reasonable a delay as long as the one in this case. In fact, many courts have found similar delays and significantly shorter ones to violate the APA in cases brought to compel immigration officials to adjudicate applications for an adjustment of status. Liu, 501 F.Supp.2d at 9-11 (four years); Alkeylani, at 266 (three years); Alsharqawi v. Gonzales, Civil Action No. 3:06-CV-1165-N, 2007 WL 1346667, *4 (N.D.Tex. Mar. 14, 2007) (four years); Haidari, 2006 WL 3544922, at *6 (four years); Yu, 36 F.Supp.2d at 935 (two and one-half years); Paunescu v. INS, 76 F.Supp.2d 896, 902-03 (N.D.Ill.1999) (two years).
In addition to their citation to Saleh, defendants pepper their brief with references to the "post 9/11 world" and suggestions that an order compelling defendants to act might somehow undermine national security. E.g., Dfts.' Br., dkt. # 12, at 22. Of course, plaintiffs suit raises an issue of vital importance to the country and the judiciary must give the other branches of government due deference in their efforts to keep the nation secure. But "national security" is not a magic talisman that can be waved in front of courts whenever the government seeks to insulate itself from judicial review. Defendants must make some showing that a requirement to process plaintiffs application in five years presents a danger; they cannot rely solely on an ipse dixit. E.g., Singh, 470 F.Supp.2d at 1069 ("[T]he mere invocation of national security is not enough to render agency delay reasonable per se."). Because defendants have adduced no evidence that deciding plaintiff's application in a timely fashion will undermine national security in any way, this argument is not persuasive.
Perhaps even more important, any reliance on "national security" as an excuse for delay is self-defeating in a case like this one in which the plaintiff is already in the United States and has been for many years. As another court recognized: "[T]he thoroughness of background checks must be weighed against the need to actually conduct them. The plaintiffs are currently living and working in the United States. If there is some legitimate national security concern with them or other applicants currently living and working in the country, this surely militates in favor of prompt security checks; not in favor of delay." Dong, at 1169-70. And if defendants do discover any information suggesting that plaintiff presents a security threat, they have total discretion to deny his application.
Finally, I note defendants' argument that plaintiff is not harmed at all by the delay and that he has "an alternate remedy" of simply "wait[ing] for [defendants] to adjudicate his application in the normal course." Dfts.' Br., dkt. # 12, at 16. *1061 "Waiting" is not a "remedy" and it is inaccurate to say that plaintiff is suffering no harm. Although the government is not seeking to deport plaintiff at this time plaintiffs "inability to obtain permanent resident status affects a wide range of important rights, including but not limited to travel and the ability [to] petition to immigrate close family members." Singh, 470 F.Supp.2d at 1070. In addition to these tangible harms, it cannot be ignored that defendants have left plaintiff in a "state of `limbo,' leaving [him] to languish there indefinitely," a state that likely would cause anyone significant distress. Kim, 340 F.Supp.2d at 393.
Without any explanation from defendants for their failure to reach a decision on plaintiffs application, I must conclude that defendants' five-year delay is not reasonable. Accordingly, I will grant plaintiffs motion for summary judgment and give defendants two months to adjudicate plaintiffs application.

ORDER
IT IS ORDERED that plaintiff Mohammed Saleem's motion for summary judgment is GRANTED. Defendants Peter Keisler, Michael Chertoff, Kay Leopold, Ruth Dorochoff and Emilio Gonzales may have until December 24, 2007 within which to adjudicate plaintiffs application for an adjustment of status. The clerk of court is directed to enter judgment in favor of plaintiff and close the case.
NOTES
[1]  Pursuant to Fed. R. Civ. P. 25 (d)(1), Peter D. Keisler is substituted for his predecessor, Alberto R. Gonzales, as Acting Attorney General of the United States.