UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VALA MOGHADDAM and NAHID SHAREI, Plaintiffs, v. Civil Action No. 19-668 (CKK) MICHAEL POMPEO et al., Defendants.

MEMORANDUM OPINION (January 22, 2020)

Pending before the Court is Defendants’ Motion to Dismiss, ECF No. 10. Defendants have

moved to dismiss the operative Petition for Writ of Mandamus and Complaint for Declaratory and

Injunctive Relief (“Compl.”), ECF No. 3–1, under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6) for lack of subject-matter jurisdiction and for failure to state a claim. Upon consideration

of the briefing, 1 the relevant legal authorities, and the record as relevant to this Motion, the Court

DENIES Defendants’ Motion. In particular, the Court finds that it has jurisdiction over Plaintiffs’

claims under the Administrative Procedure Act (“APA”) and accordingly concludes that it does not

need to reach the question of whether it has jurisdiction under the Mandamus Act. Moreover, the

Court finds that Plaintiffs have sufficiently pleaded the challenged claims under the APA.

1 The Court’s consideration has focused on the following: • Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 10; • Pls.’ Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Opp’n”), ECF No. 12, along with the related Exhibits (“Pls.’ Exhibits”), ECF No. 13; • Notice of Errata to Pls.’ Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Errata”), ECF No. 14; and • Reply Mem. in Supp. of Defs.’ Mot. to Dismiss Pls.’ Compl. (“Defs.’ Reply”), ECF No. 16. In an exercise of its discretion, the Court finds that holding oral argument would not be of assistance in rendering a decision. See LCvR 7(f). 1 I. BACKGROUND

In short, Plaintiffs allege that Defendants have denied them timely adjudication of Plaintiff

Nahid Sharei’s visa application and associated waiver under Presidential Proclamation 9645,

“Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United

States by Terrorists or Other Public-Safety Threats,” which President Donald Trump signed on

September 24, 2017. See

(2017) (“Proclamation”). The Proclamation “sought

to improve vetting procedures by identifying ongoing deficiencies in the information needed to

assess whether nationals of particular countries present ‘public safety threats.’” Trump v. Hawaii,

(2018) (quoting Proclamation § 1(a)). To that end, the Proclamation

restricted entry for nationals of several foreign states whose systems for managing and sharing

such information the President considered inadequate. See id.; Proclamation § 2. This includes

Iran, for which the Proclamation suspended entry of immigrants, with limited exceptions that are

inapplicable here. See Proclamation § 2(b).

The Proclamation, however, also allows case-by-case waivers. See id. § 3(c). Under the

Proclamation, a waiver is appropriate “when a foreign national demonstrates undue hardship, and

that his [or her] entry is in the national interest and would not pose a threat to public safety.” Trump

v. Hawaii,

; see Proclamation § 3(c)(i). The Proclamation singles out several

scenarios as circumstances in which waivers “may be appropriate,” including when a “foreign

national seeks to enter the United States to visit or reside with a close family member (e.g., a

spouse, child, or parent) who is a United States citizen,” specifically when “the denial of entry

would cause the foreign national undue hardship.” Proclamation § 3(c)(iv)(C). In describing the

waivers, the Proclamation notes that waivers are “issued by a consular officer as part of the visa

adjudication process.” Id. § 3(c)(iii). Moreover, the Proclamation requires the Department of

2 Homeland Security and the State Department to issue guidance “elaborating upon the

circumstances that would justify a waiver.” Trump v. Hawaii,

; see Proclamation

§ 3(c)(ii).

Plaintiffs here are concerned with this waiver process as applied to them. Plaintiff Vala

Moghaddam is a U.S. citizen while his wife, Plaintiff Nahid Sharei, is an Iranian national. Compl.

¶¶ 21–22. They were married on January 29, 2016. Id. ¶ 55. On December 21, 2016, Plaintiff

Moghaddam filed a Petition for Alien Relative (an I-130 Petition) on behalf of his wife, Plaintiff

Sharei. Id. ¶ 57. The petition was approved on July 7, 2017. Id. Subsequently, on August 9,

2017, Plaintiffs paid the visa processing fees and submitted Plaintiff Sharei’s Immigrant Visa

Electronic Application (a DS-260 Application) for an immigrant visa with the U.S. Embassy in

Ankara, Turkey. Id. She was assigned the consular case number ANK2017702009. Id.

Plaintiff Sharei was interviewed by the Consular Section of the U.S. Embassy in Ankara

on January 25, 2018. Id. ¶ 59. She attempted to submit a waiver request letter pursuant to the

Presidential Proclamation during the interview, but it was refused. Id. ¶¶ 59–60. Her visa

application was refused under Section 212(f) of the Immigration and Nationality Act (“INA”)

under the Presidential Proclamation. Id. ¶ 61. She was, however, referred for waiver eligibility

review under the Proclamation. Id. She therefore filled out Supplemental Questions for Visa

Application (a DS-5535 form). Id. ¶ 62.

As of the date of the filing of her Complaint, Plaintiff Sharei had waited nineteen months

after filing her immigrant visa application and fourteen months since her interview without any

determination of whether she was eligible for a waiver under the Proclamation. Id. ¶ 63. The

online status checker for her visa application explained that her case was “undergoing necessary

administrative processing.” Id.; see id. Ex. F. Although Plaintiffs have inquired as to the status of

3 her application multiple times, they have not received any useful information indicating when her

waiver eligibility will be processed. Id. ¶ 82. As of the date of this Memorandum Opinion,

Plaintiff has been waiting twenty-nine months (over two years) since filing her visa application

and twenty-four months (around two years) since her interview to discover whether she is eligible

for a waiver. See id. ¶ 63. Plaintiffs claim that as a result of their separation, they have suffered

numerous emotional, psychological, and monetary harms. Id. ¶¶ 65–76.

Plaintiffs brought this suit on March 10, 2019. See Petition for Writ of Mandamus and

Compl. for Declaratory and Injunctive Relief, ECF No. 1. Plaintiffs claim that Defendants have a

non-discretionary duty to adjudicate both her visa application and the related waiver eligibility

under the Proclamation and implementing agency guidance. See, e.g., Compl. ¶ 86. They further

claim that Defendants have unreasonably withheld that adjudication. See, e.g., id. ¶ 87.

Accordingly, Plaintiffs primarily ask for a writ of mandamus and injunction under the APA

directing Defendants to adjudicate her visa application, by which Plaintiffs largely mean her

waiver eligibility, within fifteen days of the order; issue a declaratory judgment that the delay in

adjudicating her waiver eligibility is unreasonable and violates the APA and that she is entitled to

adjudication of her visa application within fifteen days of the order; and a writ of mandamus under

the Mandamus Act,

, compelling Defendants to adjudicate her visa application

(that is, her waiver eligibility) within fifteen days of the order. 2

at Prayer for Relief ¶¶ A–E.

2 In their Complaint, Plaintiffs also request a preliminary injunction. Compl. at Prayer for Relief ¶ A. Because Plaintiffs never moved separately for this relief and do not now seek it, the Court does not consider it here. 4 II. LEGAL STANDARDS

A. Subject Matter Jurisdiction under Rule 12(b)(1)

A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject matter

jurisdiction. In determining whether there is jurisdiction, the Court may “consider the complaint

supplemented by undisputed facts evidenced in the record, or the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion

v. Mineta,

(D.C. Cir. 2003) (internal quotation marks omitted) (quoting Herbert

v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992)); see also Jerome Stevens Pharm., Inc.

v. Food & Drug Admin.,

(D.C. Cir. 2005) (“[T]he district court may consider

materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of

jurisdiction.”)

In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all

factual allegations in the complaint and construe the complaint liberally, granting plaintiff the

benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole

Comm’n,

(D.C. Cir. 2005) (“At the motion to dismiss stage, counseled

complaints as well as pro se complaints, are to be construed with sufficient liberality to afford all

possible inferences favorable to the pleader on allegations of fact.”); Leatherman v. Tarrant Cty.

Narcotics Intelligence & Coordination Unit,

(1993) (“We review here a decision

granting a motion to dismiss, and therefore must accept as true all the factual allegations in the

complaint.”); Koutny v. Martin,

(D.D.C. 2007) (“[A] court accepts as true

all of the factual allegations contained in the complaint and may also consider ‘undisputed facts

evidenced in the record.’” (internal citations omitted) (quoting Mineta,

)).

5 Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains

the plaintiff’s burden to prove subject matter jurisdiction by a preponderance of the evidence. Am.

Farm Bureau v. United States Envtl. Prot. Agency,

(D.D.C. 2000).

“Although a court must accept as true all factual allegations contained in the complaint when

reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual allegations in the

complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6)

motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd.,

(D.D.C. 2007) (internal citations and quotation marks omitted) (quoting Grand Lodge of

Fraternal Order of Police v. Ashcroft,

, 13–14 (D.D.C. 2001)), aff’d,

(D.C. Cir. Mar. 17, 2008). A court need not accept as true “a legal conclusion couched

as a factual allegation” or an inference “unsupported by the facts set out in the complaint.” Trudeau

v. Fed. Trade Comm’n,

(D.C. Cir. 2006) (internal quotation marks omitted)

(quoting Papasam v. Allain,

(1986)).

B. Failure to State a Claim under Rule 12(b)(6)

Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint

is not sufficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient

factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”

Twombly,

. “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal,

. “In evaluating a motion to dismiss, the Court must accept the

6 factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff.”

Nat’l Postal Prof’l Nurses v. U.S. Postal Serv.,

(D.D.C. 2006).

When considering a Rule 12(b)(6) motion, courts may consider “the facts alleged in the

complaint, documents attached as exhibits or incorporated by reference in the complaint” or

“documents upon which the plaintiff’s complaint necessarily relies even if the document is

produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward

v. District of Columbia Dep’t of Youth Rehab. Servs.,

(D.D.C. 2011)

(internal quotation marks and citations omitted) (quoting Gustave–Schmidt v. Chao,

(D.D.C. 2002); Hinton v. Corr. Corp. of Am.,

(D.D.C. 2009)).

The court may also consider documents in the public record of which the court may take judicial

notice. Abhe & Svoboda, Inc. v. Chao,

(D.C. Cir. 2007).

III. DISCUSSION

Defendants raise several inter-related arguments supporting their Motion. Although it is at

times difficult to separate these arguments in the briefing, the Court identifies the distinct

arguments and discusses them below. 3

A. Mootness

First, Defendants argue that Plaintiffs’ claims are moot because her visa application itself

has already been adjudicated. See Defs.’ Mot. at 14–17. In response, Plaintiffs explain that they

are seeking adjudication specifically of her waiver eligibility, which they argue is part of the visa

application process under the Proclamation. See, e.g., Pls.’ Opp’n at 6–7. This Court agrees that

3 Defendants’ Motion references a potential due process claim by Plaintiffs. Defs.’ Mot. at 3. However, because Defendants do not develop this argument other than a brief mention in their preliminary statement, and because it is unclear whether Plaintiffs even allege a due process claim, the Court does not consider this argument here. 7 Plaintiffs claims are not moot because Plaintiff Sharei’s waiver eligibility has not yet been

adjudicated and she does not seek to have Defendants readjudicate the initial denial of her visa

application.

The jurisdiction of federal courts is limited by Article III of the Constitution to the

adjudication of actual, ongoing cases or controversies. This limitation “gives rise to the doctrines

of standing and mootness.” Foretich v. United States,

(D.C. Cir. 2003); see

Sierra Club v. Jackson,

(D.C. Cir. 2011) (“Article III of the Constitution limits

the federal courts to adjudication of actual, ongoing controversies.”). Pursuant to the mootness

doctrine, it “is not enough that the initial requirements of standing and ripeness have been satisfied;

the suit must remain alive throughout the course of litigation, to the moment of final appellate

disposition. If events outrun the controversy such that the court can grant no meaningful relief;

the case must be dismissed as moot.” People for the Ethical Treatment of Animals, Inc. v. United

States Fish & Wildlife Serv.,

(D.D.C. 2014) (internal quotation marks and

citations omitted) (quoting 13B Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 3533 (3d ed. 2014); McBryde v. Comm. to Review Circuit Council Conduct and

Disability Orders of the Judicial Conference of the U.S.,

(D.C. Cir. 2001)). “A

case is moot when the challenged conduct ceases such that there is no reasonable expectation that

the wrong will be repeated in circumstances where it becomes impossible for the court to grant

any effectual relief whatever to the prevailing party.” United States v. Philip Morris USA Inc.,

(D.C. Cir. 2009) (internal quotation marks omitted) (quoting City of Erie v.

Pap’s A.M.,

(2000)).

Defendants argue that Plaintiffs’ claims are moot here because Plaintiff Sharei’s “visa was

already denied.” Defs.’ Mot. at 16. Defendants, however, misunderstand the relief that Plaintiffs

8 are seeking. Plaintiffs make clear, both in their Complaint and in their briefing on this Motion,

that they are specifically seeking adjudication of Plaintiff Sharei’s waiver eligibility. See, e.g.,

Pls.’ Opp’n at 5–6. Indeed, Plaintiffs acknowledge that Plaintiff Sharei’s initial visa application

was refused. See Compl. ¶ 61 (explaining that Plaintiff Sharei was “given refusal notice under

section 212(f) of the US Immigration and Nationality Act” and that her “visa application was

refused under the Presidential Proclamation”); Pls.’ Opp’n at 5 (“Plaintiffs do not dispute that

Plaintiff Sharei received a 212(f) refusal of her visa application, but clearly that refusal is not final

and her application remains pending further administrative processing.”). To the extent that

Plaintiffs phrase their requested relief as adjudication of her visa application, Plaintiffs do so

because they view the waiver eligibility determination as part of the visa application process. See,

e.g., Compl. ¶ 63 (explaining that online visa status check lists her case as “currently undergoing

necessary administrative process”);

at Prayer for Relief ¶¶ A–C (including “waiver eligibility”

specifically in relief requested); Pls.’ Opp’n at 5 (“This deliberate and intentional language clearly

indicates that waiver consideration is part of the visa adjudication process and must be completed

before a final decision can be made.”).

In light of Plaintiffs’ clarifications in their Complaint and briefing, this Court need not

consider at this juncture whether the waiver eligibility determination should be considered part of

the overall visa adjudication process. According to Plaintiffs, they primarily seek injunctive relief

related to Plaintiff Sharei’s waiver eligibility. That they view this as part of the broader visa

adjudication process is irrelevant to this argument because Defendants admit that her waiver

eligibility has not yet been determined. See Defs.’ Mot. at 2 (“Plaintiff Sharei’s application for a

waiver remains under consideration[.]”); see also Dybdahl Decl., ECF No. 10-3, ¶ 6 (“Ms. Sharei

9 is undergoing consideration for a waiver of the Proclamation’s entry restrictions.”). Accordingly,

her claims seeking adjudication of that eligibility are not moot.

B. Consular Nonreviewability

Defendants’ second major argument is that Plaintiffs’ claim is not reviewable under the

consular nonreviewability doctrine. But Defendants overlook that the consular nonreviewability

doctrine applies only to decisions actually made by consular officers; Plaintiffs are not challenging

any such decisions here.

“Normally a consular official’s discretionary decision to grant or deny a visa petition is not

subject to judicial review.” Patel v. Reno,

(9th Cir. 1997). Courts do not

typically have subject-matter jurisdiction to review decisions of consular officers to deny visas

because the INA confers “upon consular officers [the] exclusive authority to review applications

for visas.” Saavedra Bruno v. Albright,

, 1156–57 (D.C. Cir. 1999). Under this

doctrine, called consular nonreviewability, “a consular official’s decision to issue or withhold a

visa is not subject to judicial review, at least unless Congress says otherwise,” as matters of “policy

toward aliens are . . . so exclusively entrusted to the political branches of government as to be

largely immune from judicial inquiry or interference.”

(internal quotation marks

omitted) (quoting Harisiades v. Shaughnessy,

, 588–89 (1952)); see also United

States ex rel. Knauff v. Shaughnessy,

(1950) (“[I]t is not within the province of

any court, unless expressly authorized by law, to review the determination of the political branch

of the Government to exclude a given alien.”). But when the suit challenges inaction, “as opposed

to a decision taken within the consul’s discretion,” there is jurisdiction. Patel, 134 F.3d at 931–

32; see Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the United States

v. Kerry,

(D.D.C. 2016) (“Nine Iraqi Allies”) (“[T]he doctrine of consular

10 nonreviewability is not triggered until a consular officer has made a decision with respect to a

particular visa application.”).

That is what Plaintiffs seek here. Plaintiffs do not challenge the initial denial of Plaintiff

Sharei’s visa application. See, e.g., Pls.’ Opp’n at 3 (explaining that Plaintiffs’ claims specifically

target “indefinite delay in the adjudication” of her visa application). Instead, in Plaintiffs’ own

words, they challenge “not a visa denial, but rather the failure of Defendants to, properly and within

a reasonable time, perform their mandatory, non-discretionary duty to adjudicate Plaintiff Sharei’s

visa application and waiver, which clearly remains pending and has not been denied.” Id. at 4. As

explained above, Plaintiffs refer to the visa application process as a whole but are specifically

concerned with Plaintiff Sharei’s waiver eligibility, which they view as part of the overall visa

application process. See id. Defendants provide scant support for their extension of the consular

nonreviewability doctrine from judicial review of visa decisions to the alleged withholding of a

visa or waiver decision. Their references to Trump v. Hawaii, in which the Supreme Court upheld

the Proclamation against several challenges and discussed the discretion given to the President in

the INA, are inapposite, as that discussion did not touch on the consular nonreviewability doctrine.

See Defs.’ Mot. at 8–9 (acknowledging that Supreme Court “had no occasion to reach” consular

nonreviewability doctrine).

Nor does the doctrine suggest that such an extension is appropriate. The limited scope of

the doctrine exists because “it protects the prerogative of the political branches to regulate the

manner in which aliens may enter the United States.” Nine Iraqi Allies,

.

But “[w]hen the Government simply declines to provide a decision in the manner provided by

Congress, it is not exercising its prerogative to grant or deny applications but failing to act at all.”

at 290–91. The doctrine’s underlying purpose is not served by extending it to this context, and

11 this Court rejects Defendants’ invitation to do so here. See Am. Acad. of Religion v. Chertoff,

(S.D.N.Y. 2006) (“But the wide latitude given the Executive to grant or

deny a visa application—a discretion bounded only by the U.S. Constitution and Congressional

mandate—does not include the authority to refuse to adjudicate a visa application.”). Because of

these principles, and because waiver decisions are not discretionary as discussed below, this

argument is unpersuasive. See Didban v. Pompeo, No. 19-CV-881 (CRC),

, at

*4 (D.D.C. Jan. 15, 2020) (finding that consular nonreviewability doctrine did not apply to case

alleging unreasonable delay of waiver eligibility decision); Motaghedi v. Pompeo, No.

119CV01466LJOSKO,

, at *8 (E.D. Cal. Jan. 14, 2020) (finding that consular

nonreviewability doctrine did not apply to waiver delay challenge and rejecting argument that

consular nonreviewability doctrine extends to whether waiver decision must be made).

C. Committed to Agency Discretion

Defendants next argue that Plaintiffs’ claims cannot succeed because they are challenging

agency action “committed to agency discretion by law,” which is exempted from review under the

APA. See Defs.’ Mot. at 10 (citing

(a)(2)). Defendants appear to suggest the entire

waiver program is committed to agency discretion in addition to decisions on individual waivers.

See

(“Rather, the waiver program is governed exclusively by the Proclamation—a presidential

action that is not subject to the APA.”). Neither argument, however, is persuasive.

The APA provides for judicial review of certain agency actions and requires the reviewing

court to set aside any “agency action, findings, and conclusions” found to be, among other things,

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

(2)(A). However, judicial review is not available where the agency action “is committed to

agency discretion by law.”

§ 701(a)(2). The Supreme Court has articulated as least two

12 scenarios in which this exclusion applies: (1) “in those rare instances where statutes are drawn in

such broad terms that in a given case there is no law to apply,” Citizens to Preserve Overton Park,

Inc. v. Volpe,

(1971) (internal quotation marks omitted), and (2) when “the

statute is drawn so that a court would have no meaningful standard against which to judge the

agency’s exercise of discretion,” Heckler v. Chaney,

(1985). “Agency actions

in these circumstances are unreviewable because the courts have no legal norms pursuant to which

to evaluate the challenged action, and thus no concrete limitations to impose on the agency’s

exercise of discretion.” Sierra Club v. Jackson,

(D.C. Cir. 2011) (internal

quotation marks omitted).

Section 701(a)(2) “provides a ‘very narrow exception’ that applies only in ‘rare instances.’”

Cody v. Cox,

(D.C. Cir. 2007) (quoting Volpe,

). Courts “begin

with the strong presumption that Congress intends judicial review of administrative action, and

that the court will not deny review ‘unless there is persuasive reason to believe that such was the

purpose of Congress.’” Ramah Navajo Sch. Bd., Inc. v. Babbitt,

, 1343–44 (D.C. Cir.

1996) (citation omitted) (quoting Dickson v. Sec’y of Defense,

(D.C. Cir.

1995)). To determine whether an action is committed to agency discretion, courts consider “both

the nature of the administrative action at issue and the language and structure of the statute that

supplies the applicable legal standards for reviewing that action.” Sec’y of Labor v. Twentymile

Coal Co.,

(D.C. Cir. 2006) (internal quotation marks omitted).

Defendants here first suggest that because the Proclamation is not subject to the APA, and

because it was upheld against certain challenges by the Supreme Court, all decisions made under

it—such as waiver decisions—are similarly not reviewable. See Defs.’ Mot. at 10; Defs.’ Reply at

4. Defendants present no authority that sufficiently supports this sweeping assertion. The

13 “committed to agency discretion” exception has consistently been recognized, in the Supreme

Court, the D.C. Circuit, and elsewhere, as a “very narrow exception.” Cody,

(internal quotation marks omitted).

Nor does the exception apply here, as there are meaningful standards and law to apply.

Defendants propose that because there is no “statutory or regulatory entitlement to any particular

process by which or timeframe within which an applicant is considered for waiver,” the committed

to agency discretion exception applies. Defs.’ Mot. at 10. Plaintiffs do not contest that there is no

strict timeframe set by the Proclamation or agency guidance for processing waivers. Instead,

Plaintiffs argue that the general APA reasonableness standard governs the timeframe and that,

while the ultimate decision of whether to grant a visa is discretionary, the agency has no discretion

whether to consider waiver eligibility. See Pls.’ Opp’n at 8–18. The Court agrees with Plaintiffs

on both points.

1. Reasonable Timeframe

Sections 555(b) and 706(1) of the APA, upon which Plaintiffs rely, see, e.g., id. at 9,

generally require agencies to act within a reasonable time. Cases like this one that target agency

action unreasonably delayed turn on “whether the agency’s delay is so egregious as to warrant

mandamus.” In re Core Commc’ns, Inc.,

(D.C. Cir. 2008) (internal quotation

marks omitted) (quoting Telecommc’ns Research & Action Ctr. v. FCC (“TRAC”),

, 79

(D.C. Cir. 1984)). “There is ‘no per se rule as to how long is too long’ to wait for agency action,

but a reasonable time for agency action is typically counted in weeks or months, not years.” In re

Am. Rivers & Idaho Rivers United,

(D.C. Cir. 2004) (citation omitted) (quoting

In re Int’l Chem. Workers Union,

(D.C. Cir. 1992)). In considering whether

agency delay is unreasonable, courts in this circuit consider six factors, which are:

14 (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.

In re United Mine Workers of Am. Int’l Union,

(D.C. Cir. 1999) (internal

quotation marks omitted). The D.C. Circuit has explained that the first factor—that “the time

agencies take to make decisions must be governed by a rule of reason”—is the most important. In

re Core Commc’ns Inc.,

(internal quotation marks omitted).

At the motion to dismiss stage, this Court need not consider whether the agency delay

alleged here is unreasonable. Undergoing such a fact-specific inquiry at this stage would be

premature. 4 See, e.g., M.J.L. v. McAleenan, No. A-19-CV-00477-LY,

, at *6

(W.D. Tex. Nov. 13, 2019) (finding that “at the motion to dismiss stage and before discovery has

been completed,” it would be “premature to address these [TRAC] factors”); Hamandi v. Chertoff,

(D.D.C. 2008) (“While the court has jurisdiction over USCIS, the

determination of whether an agency’s delay is unreasonable is a fact specific inquiry that is

premature at this stage of the proceedings.”); see also Mashpee Wampanoag Tribal Council, Inc.

v. Norton,

(D.C. Cir. 2003) (“Resolution of a claim of unreasonable delay is

ordinarily a complicated and nuanced task requiring consideration of the particular facts and

circumstances before the court.”).

4 Defendants separately argue that Plaintiffs’ claims must be dismissed because the delay alleged is not unreasonable. See Defs.’ Mot. at 12–13. As the Court finds that analyzing whether the delay was unreasonable would be premature at the motion to dismiss stage and before discovery has been completed, it does not reach this argument in this Memorandum Opinion. 15 However, these factors shed light on what is required for Plaintiffs’ claims to survive

Defendants’ arguments. In short, Defendants argue that there is no timeframe that this Court can

apply to consider whether the action is unreasonably delayed. But that is not the case. There does

not need to be a more specific timeframe for a claim brought under the APA other than the

reasonableness standard, and the six related factors, discussed above. See Motaghedi,

, at *7 (“The absence of any standard upon which to frame a timing requirement is not

unusual in APA unreasonable delay cases. . . . [the] framework for evaluating such claims takes

this into account.”). Defendants have provided no reason why this standard does not apply in this

case as well. As there are meaningful standards and law to apply here, the committed to agency

discretion exception is inapplicable with respect to the timeframe. See

at *8–*9 (applying same

standard in waiver eligibility delay context); Yavari v. Pompeo, No. 2:19-CV-02524-SVW-JC,

, at *5 (C.D. Cal. Oct. 10, 2019) (applying same standard in waiver eligibility

delay context and noting that “[c]ourts generally analyze these two statutory requirements (‘within

a reasonable time’ [under APA Section 555(b)] and ‘unreasonable delay’ [under Section 706(1)])

under the same standard” (quoting In re Pesticide Action Network N. Am., Nat. Res. Def. Council,

Inc.,

(9th Cir. 2015))).

2. Duty to Consider Waivers

Moreover, Defendants suggest that there is no mandatory duty to determine waiver

eligibility for applicants. Contrary to Defendants’ arguments, Plaintiffs have sufficiently

demonstrated that the agency does not have discretion on whether to consider certain individuals

for waivers. This is made clear not only by the text of the Proclamation itself, but also by the

guidance issued regarding the waiver process. The Proclamation explains that waivers “may” be

granted “on a case-by-case basis.” Proclamation § 3(c). It requires the Secretary of State and the

16 Secretary of Homeland Security to “adopt guidance addressing the circumstances in which waivers

may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.” Id.

§ 3(c). It goes on to specify that this guidance “shall address the standards, policies, and

procedures” for determining whether foreign nationals satisfy the discretionary waiver

requirements. Id. § 3(c)(ii).

The Department of State’s internal guidance discusses the waiver program. Exhibit A to

Plaintiffs’ Opposition is internal guidance issued by the agency on January 23, 2018; it is titled

“Operational Q&As on P.P. 6645 in light of the U.S. Supreme Court orders of December 4, 2017,

lifting lower court injunctions and pursuant to guidance in 17 STATE 97682.” Pls.’ Exhibits Ex.

A at 1. Defendants do not challenge—or even specifically address—Exhibit A. At several points,

the guidance makes clear that when an applicant meets certain requirements, they must be

considered for a waiver. For example, one question and answer pair states that:

Q4: Does the consular officer have to consider a waiver for every applicant who is subject to the restrictions of the P.P., otherwise eligible for a visa and to which an exception does not apply?

A: Yes, each applicant who meets the conditions described in the question posed above must be considered for a waiver, based on the purpose of travel and any other information provided by the applicant. However, if the applicant fails to meet any one of the three waiver criteria outlined in PP 9645, the officer may proceed to refuse the case under refusal code EO17. Consular officers should check the appropriate box on the visa denial letter given to applicants subject to the P.P., indicating either that a waiver will not be granted or that waiver eligibility will be reviewed.

Pls.’ Exhibits Ex. A at 8 (emphasis added). In response to a question regarding “how long . . . it

take[s] to issue a waiver,” the guidance explains that “[t]he granting of a waiver under the P.P. is a

decision that is made by the consular officer and the manager as part of the adjudication.” Id.

Ex. A at 20 (emphasis added). Later in the document, when discussing visa refusals, the guidance

explains that before an applicant can be refused under the Proclamation, the officer “must

17 determine whether the applicant may qualify for a waiver.” Id. Ex. A at 26. Officers must provide

applicants with a “refusal letter indicating either that a waiver will not be granted or waiver

eligibility is under review,” and the internal guidance provides exact language to be used in those

letters. Id. at 26–27. That language explains that applicants under waiver consideration “will be

contacted with a final determination on [their] visa application[s] as soon as practicable.” Id. Ex.

A at 27 (emphasis added). This exact language was present in the letter that Plaintiff Sharei

received. See ECF No. 1-5. Taken together, the guidance reflects the agency’s view that for those

applicants that meet certain criteria and are under waiver consideration, a decision on the waiver

must ultimately be made.

The Department of State’s external guidance, issued after the Supreme Court’s June 26,

2018 decision in Trump v. Hawaii and which is available on the agency’s website, demonstrates

the same. 5 For instance, in response to the frequently asked question “What immigrant visa classes

are subject to the Proclamation?”, the guidance includes the following language: “A consular

officer will carefully review each case to determine whether the applicant is affected by the

Proclamation and, if so, whether the case qualifies for an exception or a waiver.” The guidance

contains nearly identical language explaining that consular officers “will carefully review each

5 This webpage is titled “June 26 Supreme Court Decision on Presidential Proclamation 9645,” and is available at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/pr esidential-proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation 9645.html (last accessed Jan. 22, 2020). Under Federal Rule of Evidence 201, a court can take judicial notice of “a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction” or “(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Moreover, a court “may take judicial notice on its own” and “at any stage of the proceeding.” Fed. R. Evid. 201(c)–(d). “Courts in this jurisdiction have frequently taken judicial notice of information posted on official public websites of government agencies.” Pharm. Research & Mfrs. of Am. v. United States Dep’t of Health & Human Servs.,

(D.D.C. 2014) (collecting cases). The Court follows their lead and does the same here for the facts from this webpage discussed in the body of the Memorandum Opinion. See

18 case to determine whether . . . the applicant qualifies for an exception or a waiver” in answers to

five distinct questions. Confirmation of this understanding also comes from a letter dated February

22, 2018 from Mary K. Waters, Assistant Secretary of Legislative Affairs in the Department of

State, to Senator Chris Van Hollen, available at https://www.aila.org/infonet/dos-responds-to-

senator-van-hollens-concerns, which states that “[e]ach applicant who meets the conditions set

forth in section 3(c) of the Proclamation must be considered for a waiver,” id. at 2. See Compl.

¶¶ 43–48 (referencing and discussing letter).

Furthermore, the Supreme Court’s opinion in Trump v. Hawaii further reflects this

understanding that consular officers must consider—and ultimately determine—whether

applicants qualify for a waiver. See, e.g., Trump v. Hawaii,

(explaining that

“consular officers are to consider in each admissibility determination whether the alien

demonstrates” requirements for waiver); see also Motaghedi,

, at *7 (“As several

courts have recognized, in upholding the constitutionality of PP 9645, the Supreme Court relied in

part on the waiver program[.]”); Emami v. Nielsen,

(N.D. Cal. 2019)

(“The allowance for waivers in the Proclamation was an important reason why the five-justice

majority upheld it as serving a legitimate national security interest.”).

Defendants do not respond directly to the guidance referenced by Plaintiffs, other than to

suggest that there is no entitlement to a decision on a waiver because there is discretion on whether

a waiver may be granted, and that discretion is committed entirely to the executive branch. See

Defs.’ Reply at 3–7. For example, Defendants propose that “[t]he processing of a waiver

application is committed entirely to agency discretion by Presidential Proclamation 9645—a

presidential action that is not subject to the APA or Mandamus given the absence of a

19 nondiscretionary duty.” Defs.’ Mot. at 11. They also suggest that the Proclamation’s disclaimer

that it does not create private rights precludes Plaintiffs from bringing suit. 6 Defs.’ Mot. at 12.

But Defendants’ arguments overlook several important points. First, although “the APA

does not expressly allow review of the President’s actions,” Franklin v. Massachusetts,

(1992), Plaintiffs here do not challenge the President’s actions and instead challenge

agency adherence to the Proclamation itself and agency guidance. See, e.g., Compl. ¶ 114

(referencing Accardi doctrine relating to agency adherence to guidance). While this circuit has not

clearly determined whether action taken pursuant to the Proclamation is reviewable, the Ninth

Circuit has persuasively decided that “officer suits against executive branch officials charged with

carrying out the instructions contained in Proclamation 9645” are APA-reviewable. Yavari,

, at *6 (finding waiver eligibility challenge reviewable under APA); see Hawaii

v. Trump,

(9th Cir. 2017) (“[B]ecause these agencies have consummated their

implementation of the Proclamation, from which legal consequences will flow, their actions are

final and therefore reviewable under the APA.” (internal quotation marks and alternations omitted)

(quoting Bennett v. Spear,

, 177–78 (1997))), rev’d and remanded on other grounds,

(2018); cf. Chamber of Commerce of United States v. Reich,

(D.C. Cir. 1996) (finding that agency regulations pursuant to executive order were reviewable

under APA); Tulare Cty. v. Bush,

(D.C. Cir. 2002) (suggesting that challenge

to agency action pursuant to presidential proclamation might have been reviewable under APA if

6 Note that Defendants do not clearly separate their “committed to agency discretion” argument from their broader consular nonreviewability argument and their suggestion that the Proclamation and such presidential actions more generally are not reviewable under the APA, which makes untangling the support and reasoning underlying Defendants’ arguments more difficult. See, e.g., Defs. Mot. at 10–12. The Court therefore addresses some of these arguments together in this Memorandum Opinion. 20 plaintiffs had alleged with sufficient specificity); O.A. v. Trump,

, 147 (D.D.C.

2019) (finding that action was reviewable under APA because rule at issue was promulgated

pursuant to presidential proclamation).

Defendants’ arguments in this vein also ignore that an agency may be bound by its own

policies, and that Plaintiffs here are arguing (among other things) that Defendants are bound by

their own implementing policies to issue waiver decisions. See, e.g., Pls.’ Opp’n 4–6, 8–9, 14–15;

see also Compl. ¶ 114 (referencing Accardi doctrine). In fact, “[i]t is well settled that an agency,

even one that enjoys broad discretion, must adhere to voluntarily adopted, binding policies that

limit its discretion.” Padula v. Webster,

(D.C. Cir. 1987). This doctrine stems

from the case of United States ex rel. Accardi v. Shaunessy,

(1954). “Accardi has

come to stand for the proposition that agencies may not violate their own rules and regulations to

the prejudice of others.” Battle v. F.A.A.,

(D.C. Cir. 2005); see Steenholdt v.

F.A.A.,

(D.C. Cir. 2003) (“The Accardi doctrine requires federal agencies to

follow their own rules, even gratuitous procedural rules that limit otherwise discretionary

actions.”); Damus v. Nielsen,

, 335–38 (D.D.C. 2018) (explaining connection

between Accardi doctrine and APA cases). In fact, “in the immigration context,” courts have found

that “the Accardi doctrine’s ‘ambit is not limited to rules attaining the status of formal regulation,’

and that it can be applied to internal agency guidance.” Damus,

(quoting

Montilla v. INS,

(2d Cir. 1991)). The D.C. Circuit has explained that “an agency

pronouncement is transformed into a binding norm if so intended by the agency,” and to determine

agency intent, a court must examine “‘the statement’s language, the context, and any available

extrinsic evidence.’” Padula,

.

21 If an APA claim premised in part on the agency’s own guidance and pronouncements is

possible, the question becomes whether Plaintiffs have sufficiently pleaded such a claim. They

have. Most importantly, Plaintiffs have included in their pleading the internal guidance adopted

by the Department of State as well as the February 22, 2018 letter. Each of these three

pronouncements from the agency treat waiver eligibility decisions as mandatory. The same is true

of the agency’s external guidance, which was specifically made public in such a way that

applicants can access it. At bottom, then, the agency pronouncements at issue all states that officers

do not have the discretion to never act on a waiver application. See, e.g., Najafi v. Pompeo, No.

19-CV-05782-KAW,

, at *5 (N.D. Cal. Dec. 5, 2019) (finding that “mandatory

language” in agency guidance relating to Proclamation “demonstrates a decision is required” on

waivers and noting that “[t]o now argue that the waiver program requires no decision would be to

render the waiver program illusory”). Considering that the agency has represented this in its

internal guidance (which was intended to be used by its consular officers), its external guidance

(which was intended to be accessed, and potentially relied upon, by applicants), in its argument to

the Supreme Court (as reflected in the Supreme Court’s opinion in Trump v. Hawaii), and in a

letter sent to a member of Congress, the agency certainly intended to be bound by this guidance.

Cf. Emami,

(finding that plaintiffs sufficiently alleged Accardi claim in

broader challenge to waiver program).

Accordingly, Plaintiffs have sufficiently shown that the challenged decisions do not qualify

for the committed to agency discretion exception under the APA. Motaghedi,

,

at *6–*7 (finding that delayed waiver decisions were not committed to agency discretion);

Darchini v. Pompeo, No. SACV191417JVSDFMX,

, at *4 (C.D. Cal. Dec. 3,

2019) (finding that agency’s guidance demonstrates that action is not committed to agency

22 discretion); Yavari,

, at *7 (denying motion to dismiss on committed-to-agency-

discretion grounds due to narrowness of exception); Emami, 365 F. Supp. 3d at 1018–19 (denying

motion to dismiss similar claims in face of arguments that decisions are committed to agency

discretion).

D. Mandamus Act

Defendants also challenge Plaintiffs’ claims brought under the Mandamus Act,

. The writ of mandamus is available “to compel an officer or employee of the United States

or any agency thereof to perform a duty owed to the plaintiff.”

. A court may

grant mandamus relief only if “(1) the plaintiff has a clear right to relief; (2) the defendant has a

clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.” In re

Medicare Reimbursement Litig.,

(D.C. Cir. 2005) (internal quotation marks

omitted). Because this Court found that it had jurisdiction under the APA, an alternative and

adequate remedy is available to Plaintiffs, and the Court need not reach these arguments. See

Action All. of Senior Citizens v. Leavitt,

(D.C. Cir. 2007) (noting that “the

existence of an administrative remedy . . . preclude[d] the exercise of mandamus”); Fort Sill

Apache Tribe v. Nat’l Indian Gaming Comm’n,

, 120 n.6 (D.D.C. 2015) (“The

Court need not reach the question of whether a writ of mandamus is available to compel NIGC to

issue a decision since it finds it has APA jurisdiction over Count 1.”).

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Defendants’ Motion to Dismiss. An

appropriate Order accompanies this Memorandum Opinion.

Date: January 22, 2020 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

23