UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HASHMATULLAH FAIZI, : : Plaintiff, : Civil Action No.: 24-839 (RC) : v. : Re Document No.: 5 : MERRICK B. GARLAND, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO STAY; GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

Hashmatullah Faizi (“Plaintiff”), an Afghan citizen proceeding pro se, brings this suit to

compel (1) Merrick B. Garland, United States Attorney General, (2) Antony J. Blinken,

Secretary of State, (3) Rena Bitter, Assistant Secretary of State, (4) Alejandro Mayorkas,

Secretary of Homeland Security, (5) Christopher Wray, Director of the Federal Bureau of

Investigation (“FBI”), and (6) Ur M. Jaddou, Director of U.S. Citizenship and Immigration

Services, in their official capacities (collectively, “Defendants”), to adjudicate his visa

application. By the time he filed his complaint, Plaintiff had been awaiting Chief of Mission

(“COM”) approval for approximately eleven months. Plaintiff alleges unreasonable delay under

the Administrative Procedure Act,

et seq., and unique procedural violations of the

Afghan Allies Protection Act of 2009 (“AAPA”),

(a),

(2009), codified as amended in

note. Defendants move to dismiss or, in the

alternative, stay this suit in anticipation of a motion to consolidate with the ongoing Afghan &

Iraqi Allies Under Serious Threat Because of Their Faithful Service to the U.S. v. Blinken, No. 1:18-cv-1388 (D.D.C.) (“Allies”) class action litigation. They contend that Plaintiff is a

mandatory member of that class and seeks the same injunctive relief. Defendants also move to

dismiss Attorney General Garland and FBI Director Wray as improper defendants. For the

foregoing reasons, the Court grants Defendants’ motion to stay, grants their motion to dismiss in

part with respect to dismissing defendants Garland and Wray, and denies their motion to dismiss

in part on all other grounds.

II. BACKGROUND

Plaintiff has for several years sought COM approval for a Special Immigrant VISA

(“SIV”) under the AAPA.1 Compl. ¶ 9; Defs.’ Mem. Supp. Mot. Dismiss (“Defs.’ Mot.”) at 1.

He first applied on August 8, 2021, basing his eligibility on his employment as a driver for the

U.S. State Department at the Justice Center in Parwan, Afghanistan. Compl. ¶ 3. Almost two

years later, the Department of State denied Plaintiff’s request because it “lack[ed] sufficient

documents to make a determination.” Ex. 2 to Compl., ECF No. 1-2. Plaintiff appealed this

decision on April 11, 2023, and he also provided additional documentation. Ex. 4 to Compl.,

ECF No. 1-4. Plaintiff still awaits a decision on his administrative appeal. See generally Compl.

Defendants moved to dismiss Plaintiff’s complaint under the first-to-file rule, arguing

that Plaintiff’s claims are duplicative of those at issue in the ongoing Allies class action litigation.

Defs.’ Mot. at 9. In the alternative, Defendants request that the Court stay these proceedings so

that they may move for consolidation with the Allies class action under Local Rule of Civil

Procedure 40.5(d). Defs.’ Mot. at 16–17. Additionally, Defendants seek to dismiss Attorney

General Merrick Garland and FBI Director Christopher Wray from the action pursuant to Federal

1 Certain Afghan nationals who have worked for the U.S. government in Afghanistan, and who experience threats because of their service, are eligible to apply for special immigrant visas and then for admission to the United States. See AAPA § 602(a).

2 Rule of Civil Procedure 12(b)(1). Plaintiff opposes Defendants’ first-to-file argument but does

not dispute their Rule 12(b)(1) argument. Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. Dismiss

(“Pl.’s Opp’n”) ¶¶ 1–13, ECF No. 8. The Court notes that because Plaintiff is proceeding pro se,

it construes his filings liberally. Erickson v. Pardus,

(2007) (per curiam).

III. LEGAL STANDARD

Congress passed the AAPA “in part[] to provide an immigration route to the United

States for Afghans who had risked their own safety in order to cooperate with American military

forces in their fight against the Taliban.” Airaj v. United States, No. 15-cv-983,

, at *1 (D.D.C. Apr. 27, 2016). To qualify for a SIV under this statute, Afghan nationals

“must have worked for the United States Government or the International Security Assistance

Force for at least one year, provided faithful and valuable service, and experienced an ongoing

serious threat as a result.” Afghan & Iraqi Allies v. Blinken,

(D.C. Cir. 2024)

(quotation omitted); AAPA § 602(b). For those eligible, the State Department outlines a multi-

step process that includes COM approval. The Steps of the Afghan SIV Process, United States

Department of State–Bureau of Consular Affairs, https://perma.cc/8KFM-A6UT. “A Chief of

Mission is ‘the principal officer in charge of a diplomatic mission of the United States or of a

United States office abroad which is designated by the Secretary of State as diplomatic in nature,

including any individual assigned under section 3982(c) to be temporarily in charge of such a

mission or office.’” Rahman v. Blinken, No. 23-cv-3235,

, at *1 (D.D.C. Sept.

27, 2024) (quoting

(3)).

A. First-to-File Rule

For many decades, “the rule in this [C]ircuit has been that ‘[w]here two cases between the

same parties on the same cause of action are commenced in two different Federal courts, the one

3 which is commenced first is to be allowed to proceed to its conclusion first.’” Washington

Metro. Area Transit Auth. v. Ragonese,

(D.C. Cir. 1980) (quoting Speed

Products Co. v. Tinnerman,

(D.C. Cir. 1948)); see, e.g., Int’l Painters &

Allied Trades Indus. Pension Fund v. Painting Co.,

(D.D.C. 2008).

“Though no precise rule has evolved, the general principle is to avoid duplicative litigation”

between federal district courts. Colo. River Water Conservation Dist. v. United States,

(1976) (citations omitted). Therefore, when a matter in one federal district court

parallels another matter being litigated in a separate forum, “district courts have discretion to

stay or dismiss a pending suit [under the first-to-file rule].” Rahman,

at *8–9

(citing Handy v. Shaw, Bransford, Veilleux & Roth,

(D.C. Cir. 2003)).

However, “this [C]ourt has repeatedly held that the rule should not be mechanically

applied, but rather that due weight should be given to equitable considerations.” Blackhawk

Consulting, LLC v. Fed. Nat’l Mortg. Ass’n,

(D.D.C. 2013). These

equitable considerations include “(1) whether all parties are present in both cases, (2) the

location of witnesses, and (3) the stage of the respective proceedings.” Furniture Brands Int’l,

Inc. v. U.S. Int’l Trade Comm’n,

(D.D.C. 2011) (citation omitted). Most

pertinently, “a district court is within its discretion to refuse to entertain a declaratory judgment

action when another proceeding in another jurisdiction [or within the same jurisdiction] will

resolve the issue in its entirety.” Lewis v. Nat’l Football League,

, 4–5 (D.D.C.

1992). Fundamentally, this question is a “holistic one—i.e., the court should consider ‘whether

the second-filed action [actually] deserves priority.’” Coal River Mountain Watch v. U.S. Dep’t

of the Interior,

(D.D.C. 2015) (alteration in original) (citing Furniture

Brands,

).

4 B. Motion to Stay

A trial court has broad discretion to stay all proceedings in a case while awaiting the

outcome of other proceedings. See Landis v. North American Co.,

(1936).

“[T]he power to stay proceedings is incidental to the power inherent in every court to control the

disposition of the causes on its docket with economy of time and effort for itself, for counsel, and

for litigants.” Air Line Pilots Ass’n v. Miller,

, 879 n.6 (1998) (quoting Landis, 299

U.S. at 254–55). Indeed, “[a] trial court may, with propriety, find it is efficient for its own

docket and the fairest course for the parties to enter a stay of an action before it, pending

resolution of independent proceedings which bear upon the case.” Leyva v. Certified Grocers of

California, Ltd.,

(9th Cir. 1979). Local Rule 40.5(d) dictates that after a stay,

“[m]otions to consolidate cases assigned to different judges of this Court shall be heard and

determined by the judge to whom the earlier-numbered case is assigned.”

C. Rule 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), an action or claim must be dismissed

when the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion for

dismissal under Rule 12(b)(1) “presents a threshold challenge to the court’s jurisdiction.” Haase

v. Sessions,

(D.C. Cir. 1987). Federal courts are courts of limited jurisdiction,

and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian

Life Ins. Co.,

(1994). Thus, on a Rule 12(b)(1) motion, the plaintiff “bears the

burden of establishing jurisdiction by a preponderance of the evidence.” Bagherian v. Pompeo,

, 91–92 (D.D.C. 2020); see also Lujan v. Defs. of Wildlife,

(1992).

5 In determining whether it has 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) (quoting Herbert v. Nat’l Acad. of

Scis.,

(D.C. Cir. 1992)). Courts must accept as true all factual allegations in

the complaint and must also construe the complaint liberally, granting the 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). However, 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.” Grand Lodge of the Fraternal Ord. of Police v. Ashcroft,

, 13–

14 (D.D.C. 2001) (quotation omitted). Furthermore, “[t]he Court need not accept inferences

drawn by a plaintiff if those inferences are unsupported by facts alleged in the complaint, nor

must the Court accept a plaintiff’s legal conclusions.” Arabzada v. Donis,

, 9

(D.D.C. 2024); see also Food & Water Watch, Inc. v. Vilsack,

(D.C. Cir.

2015).

IV. ANALYSIS

A. First-to-File Rule

1. Party Presence – Class Membership

When deciding to apply the first-to-file rule, the Court considers “whether all parties are

present in both cases.” Furniture Brands, 804 F. Supp. 2d at 6–7. Defendants allege that Plaintiff

qualifies as a class member in the Allies litigation; and because Plaintiff is already a party in that

class action, he would not be prejudiced by dismissal or consolidation. See Defs.’ Mot. at 9. The

Court agrees that Plaintiff meets the eligibility criteria of the Allies class.

6 Allies class membership applies to “all people who have (1) applied for an Afghan . . .

SIV pursuant to the [AAPA] . . . by submitting an application for Chief of Mission (‘COM’)

approval, and (2) whose applications have been awaiting government action for longer than 9

months.” Afghan and Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to U.S.,

, 453 (D.D.C. 2020). The Allies court certified this class and found “that the

proposed class meets Rule 23(b)(2)’s requirements.”

. So class membership is

mandatory. See Wal-Mart Stores, Inc. v. Dukes,

(2011) (“[T]he Rule provides

no opportunity for b(1) or b(2) class members to opt out . . . .”).

Plaintiff’s complaint satisfies both of the Allies class membership criteria. Plaintiff

applied for an SIV visa under the APPA and is awaiting COM approval. Compl. ¶ 18. Plaintiff

also meets the second criterion because he has not heard from the government about his visa

adjudication for over nine months. Ex. 4 to Compl. Based on these conditions, Plaintiff is a

mandatory member of the Allies class.

While there several of the parties in the Allies case are not relevant to Plaintiff’s case,

both cases include overlapping defendants and claims. See Allies,

. Any

possible witnesses for Plaintiff’s case would not be inconvenienced if instead they testified in or

submitted affidavits to the Allies court because Plaintiff brought this case in the same district and

courthouse as the Allies litigation. See Compl.; Allies, No. 1:18-cv-1388. Therefore, equitable

concerns about party availability do not disfavor applying the first-to-file rule. As such, the

Court finds that the parties and claims substantially overlap, Plaintiff is an eligible class member

in the Allies litigation, and he cannot opt out of the class action to seek individual relief.

7 2. Stage of Respective Proceedings

The first-to-file rule typically favors older claims over newly filed litigation. See Coal

River Mountain Watch,

. Still, the Court must make a “holistic”

determination on “whether the second-filed action actually deserves priority.”

(cleaned up

and quotation omitted). Older motions filed as “preemptive strike[s],” for example, and suits

filed in bad faith are not favored by the first-to-file rule. See Stone & Webster, Inc. v. Georgia

Power Co.,

(D.D.C. 2013), aff’d,

(D.C. Cir. 2015).

The Allies class action began on June 12, 2018—nearly 6 years before this case. Allies

Compl., ECF No. 1. Since then, “[i]n 2019, the district court held that the government had

unreasonably delayed processing these applications. In 2020, the court approved a plan

requiring the prompt adjudication of applications filed by class members . . . .” Allies,

. Following the United States’ military withdrawal from Afghanistan, the government

“moved to terminate or modify the plan based on changed circumstances.”

The district court

acknowledged that these changed circumstances justified modifying the plan, but it refused to

terminate the scheme entirely.

The D.C. Circuit affirmed the Allies district court’s decision

in June 2024.

This case, by contrast, is just beginning. The Allies class complaint raises similar

allegations as Plaintiff’s complaint, but Allies began long before Plaintiff’s cause of action even

materialized. Compare Allies Compl. (filed June 6, 2018), with Compl. ¶ 3 (stating that Plaintiff

applied for an SIV for the first time on August 2, 2021). The Court does not find any reason to

favor Plaintiff’s new claim over the long-standing Allies litigation.

8 3. Duplicative Claims

When two cases pose similar legal questions, the Court must remain mindful of “the risk

of inconsistent rulings on common factual and legal questions, the burden on the parties and the

court, the length of time, and the relative expense of proceeding with separate lawsuits if they are

not consolidated.” See Singh v. Carter,

(D.D.C. 2016) (citation omitted).

Litigating considerably similar cases in different courts can encroach on the authority of other

courts and may produce inconsistent rulings and “the waste of duplication.” Entines v. United

States,

(D.D.C. 2007) (quoting W. Gulf Maritime Ass’n v. ILA Deep Sea

Local 24,

(5th Cir. 1985)).

Plaintiff acknowledges that Allies is a mandatory class, but he denies that his claim is

duplicative because “[t]he class action seeks broad, systemic relief, which may not fully address

the individualized issues and specific relief that Plaintiff seeks in his complaint.” Pl.’s Opp’n ¶

7. Plaintiff asserts that his “situation includes unique procedural violations and specific instances

of harm that require a detailed examination of his personal circumstances.” Id. ¶ 5. Among

these concerns, Plaintiff lists potential harm to his daughter who, because she is soon to be 21

and currently resides in Afghanistan, “faces the real and imminent threat of persecution by the

Taliban and the possibility of being forced into marriage.” Id. ¶ 10. Defendants respond that

Plaintiff’s “claims substantially overlap with the claims presented in the Allies certified class.”

Defs.’ Reply in Support of Mot. Dismiss Compl. or Stay in the Alternative at 1 (“Defs.’ Reply”),

ECF No. 9. The Court agrees.

Other members of the Allies class share concerns that are as serious and urgent as those

of the Plaintiff. See Allies, 334 F.R.D. at 454–556 (acknowledging that “Plaintiffs, whose lives,

and whose families’ lives, are at risk every day their applications are pending”). This includes

9 concerns about the mistreatment of family members. See e.g., Allies, Am. Compl. ¶ 56, No.

1:18-cv-1388, ECF No. 23 (describing complaint of Mr. Doe-Alpha who worked as a U.S.

government contractor who “had to flee his hometown which is controlled by the Taliban . . . and

his family members who remained behind have been repeatedly threatened and harassed”). The

Allies complaint describes risks in Afghanistan similar to those Plaintiff alleges, including

threats, robberies, kidnappings, and attacks on civilians. Id. ¶ 50. Both Plaintiff and the Allies

class are seeking injunctive relief, and both argue that the government has unreasonably delayed

adjudicating their SIV applications. See Allies,

; Compl. ¶¶ 19–33, 34.

Plaintiff is one of potentially thousands of possible plaintiffs awaiting COM approval.

See Allies, 103 F.4th at 815–16 (“The parties stipulated that there were thousands of such

beneficiaries in October 2021, and it remains undisputed that at least some of these old

applications remain pending [in addition to new applications.]”). Indeed, Defendants cite six

other cases that the Allies court approved for consolidation. Defs.’ Mot. at 17. Proceeding with

Plaintiff’s case would be inconsistent with the general principle that “[c]onsiderations of comity

and orderly administration of justice dictate that two courts of equal authority should not hear the

same case simultaneously.” UtahAmerican Energy, Inc. v. Dep’t of Labor,

(D.C. Cir. 2012) (quotation omitted). To prevent inconsistent rulings, the Court finds that the

first-to-file rule favors the Allies class action over Plaintiff’s recently filed motion.

B. Motion to Stay

In considering a motion to stay proceedings, the Court will not grant a stay if it would

“unnecessarily delay proceedings” or when consolidating cases would “necessitate a renewed

round of briefing by all parties.” Bell v. Dep’t of Def., No. 16-cv-2403,

, at

*18 (D.D.C. Sept. 27, 2018). Consolidation is “particularly appropriate when the actions are

10 likely to involve substantially the same witnesses and arise from the same series of events or

facts.” Singh,

(quoting Hanson v. District of Columbia,

(D.D.C. 2009)). When considering both a motion to dismiss and a motion to stay, a court must

balance fairness and potential prejudice to the parties. See Hisler v. Gallaudet Univ.,

(D.D.C. 2004). In some cases, staying the case allows parties to “obtain[] the

relief sought” in another forum, which could render the present case moot and “obviate the need

to decide defendants’ pending motions to dismiss.” Barcardi & Co. Ltd. v. Empresa Cubana

Exportadora De Alimentos & Productos Varios, Inc., No. 04-cv-519,

, at *2

(D.D.C. May 24, 2007) (granting the stay and denying the motion to dismiss in the name of

judicial efficiency because resolution of a separate proceeding “may moot this entire case”).

“The same reasoning applies here with equal force because resolution of the [Allies] action may

moot this entire case.”

But because a district court “may exercise its discretion to decline

jurisdiction for the purpose of judicial economy only in truly ‘exceptional circumstances,’” the

Court finds that a stay pending a motion for consolidation is preferable to the dismissal that

Defendants seek. Handy,

(quoting Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp.,

(1983)).

The Court finds that Plaintiff is already a member of the Allies class and therefore his

interests are being concurrently litigated in that litigation. Similarly, Plaintiff has not identified

specific procedural developments that distinguish this case from the Allies class action, and the

outcome of that class action may make Plaintiff’s claims moot. Defs.’ Reply at 2. Because the

Court staying this case furthers judicial economy and consolidation will prevent “confusion and

prejudice,” the Court orders that this case is stayed until the resolution of Defendants’ motion to

consolidate. See Bell,

, at *18 (quoting Am. Postal Workers Union v. U.S.

11 Postal Serv.,

(D.D.C. 2006)). Plaintiff will have the opportunity to

object to this consolidation and present arguments to the Allies court pursuant to Local Rule

40.5.

C. Improper Defendants

Defendants also argue that Attorney General Garland and FBI Director Wray should be

dismissed as parties in this action because “Plaintiff fails to tie his alleged injury” to their actions

“and no statutory provision supports such a conclusion.” Defs.’ Mot. at 19. Plaintiff does not

dispute or even respond to this argument in either his initial opposition or surreply. E.g., Pl.’s

Opp’n at 1.

Because Plaintiff’s claims center on an alleged delay in his visa adjudication process,

Plaintiff has “standing to proceed against each defendant only to the extent ‘that an order from

this Court compelling’ that defendant to act on Plaintiff[’s] petition[] would redress” the alleged

injury. See Al-Gharawy v. U.S. Dep’t of Homeland Sec.,

, 9 (D.D.C. 2022)

(quoting Abulhawa v. U.S. Dep’t of the Treasury,

(D.D.C. 2017)). For

each named defendant, “it must be likely, as opposed to merely speculative” that a favorable

decision would hasten Plaintiff’s visa adjudication timeline. See Lujan, 504 U.S. at 560–61.

When a plaintiff does not dispute a defendant’s challenge to standing, “the Court will treat

[defendant’s arguments] as conceded and dismiss.” See Fateh v. Blinken, No. 23-cv-1277,

, at *4 (D.D.C. Feb. 29, 2024).

Plaintiff has failed to allege that he has standing to bring claims against defendants

Garland or Wray. In the Complaint, Plaintiff does not provide any information about the

Attorney General’s ability to expedite his visa application process. See Compl. ¶ 10. With

respect to FBI Director Wray, Plaintiff alleges that “the FBI is responsible for performing FBI

12 name checks and other background checks of all applicants for immigrant visa.”

.

However, the AAPA does not expressly provide any statutory role for the Department of Justice

or the FBI. Defs.’ Mot. at 18. The AAPA instead states that the Secretary of Homeland

Security, in consultation with the Secretary of State, has the authority to provide the relief that

Plaintiff seeks, not the Attorney General or FBI Director. AAPA § 602(b)(1). Furthermore,

applicants must clear “a background check and appropriate screening, as determined by the

Secretary of Homeland Security.” Id. § 602(b)(1)(D). Attorney General Garland and FBI

Director Wray are not statutorily responsible for these checks.

Accordingly, Plaintiff’s Complaint fails to identify a basis to conclude that either

Attorney General Garland or FBI Director Wray have the authority to expedite Plaintiff’s visa

application process. Without such authority, a favorable decision by this Court with respect to

these parties cannot redress Plaintiff’s alleged harm. Thus, Attorney General Garland and FBI

Director Wray are improperly named defendants and Defendants’ motion to dismiss them from

this action is granted.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED IN PART

AND DENIED IN PART. Defendants’ Motion to Stay is GRANTED. An order consistent

with this Memorandum Opinion is separately and contemporaneously issued.

Dated: December 11, 2024 RUDOLPH CONTRERAS United States District Judge

13