UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FATEMA AKTER,

Plaintiff,

v. Case No. 1:24-cv-03256 (TNM)

MARCO RUBIO, in his official capacity as Secretary of State, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff asks the Court to compel the Department of State and various federal officials to

schedule her visa interview. Essentially: Her petition for an alien relative visa waits in a

chronological queue for adjudication, and she wants this Court to escort her to the front of the

line. The Government moves to dismiss, arguing that the Court lacks jurisdiction over the action

because Plaintiff has not alleged that the Government failed to take a required ministerial duty.

It also insists that she has failed to plausibly claim that her visa adjudication has been

unreasonably delayed.

The Court will grant the motion to dismiss. Whether Plaintiff has plausibly alleged a

violation of a non-discretionary duty is uncertain. Regardless, she has not alleged unreasonable

delay. So the Court dismisses on those grounds, as it is prudent to avoid tricky questions of

statutory jurisdiction where a finding on the merits is straightforward.

I.

Plaintiff Fatema Akter is a national of the People’s Republic of Bangladesh. Compl.,

ECF No. 1, Part V ¶ 1. Her sister is a citizen of the United States. Id. The sisters are in the

middle of their attempt to obtain an immigrant visa for Akter. Compl. Part V ¶¶ 2–9. The process started with Akter’s sister filing a Form I-130, Petition for Alien Relative, with the U.S.

Citizen and Immigration Services (“USCIS”). Compl. Part V ¶ 2; see

(a),

1153(f), 1154(a)(1), 1151(b)(2)(A)(i);

(a)(1). USCIS approved the petition and

forwarded it to the Department of State’s National Visa Center for pre-processing. Compl. Part

V. ¶ 3;

;

(a).

At that point, the National Visa Center began to gather the required documents and

collect the necessary fees. Compl. Part V ¶ 6; see Dep’t of State Bureau of Consular Affairs,

Immigrant Visa Process: Step 2: Begin National Visa Center Processing,

https://perma.cc/QN2K-JTD7. Once those boxes are checked, the petition is considered

documentarily complete. Compl. Part V ¶ 7; 9 Foreign Affairs Manual (“FAM”) 504.4-5. The

National Visa Center notified Akter her case was documentarily complete in October 2023.

Compl. Part V ¶ 7.

The next step is for the National Visa Center to schedule Akter for an immigrant visa

interview before a consular officer so she can make and execute a visa application. 9 FAM

504.4-6. Interviews are scheduled “in the chronological order of the documentarily complete

applicant” based “[u]pon visa availability” at the relevant embassy or consulate. 9 FAM 504.4-

6.

This obviously takes time. The allocation of consular services is complex, and many like

Akter are waiting their turns to be admitted, many of whom like her wish to be reunited with

their families. After a delay of 13 months, Akter still had not been scheduled for a visa

interview. Compl. Part V ¶ 11. So she filed this suit, seeking to “[c]ompel Defendants . . . to

take all appropriate action to schedule an interview and adjudicate [her] documentarily

completed I-130-based F-4 family immigration visa application, without further delay.” Compl.

2 at 12. Her claims are rooted in the Mandamus Act,

, and the Administrative

Procedure Act,

(1). Compl. Part IV ¶¶ 22–23.

The Government 1 moves to dismiss. Mot. Dismiss, ECF No. 9. It argues that the Court

lacks jurisdiction over Akter’s suit because she has not identified a non-discretionary, discrete

agency action that a consular officer failed to take. Mot. Dismiss 6–19. Alternatively, it argues

that Akter has failed to state a claim of unreasonable delay on the merits. Mot. Dismiss 19–27.

Akter opposes dismissal. Br. Opp’n, ECF No. 10. The motion is ripe for review.

II.

The Government moves to dismiss under Federal Rule of Civil Procedure Rules 12(b)(1)

and 12(b)(6). The former challenges the Court’s jurisdiction. Because federal courts have a

limited purview, a 12(b)(1) motion asks whether a plaintiff has met her burden to show that the

Constitution and Congress authorize the Court to hear the suit. See Lujan v. Defs. of Wildlife,

(1992); Akinseye v. District of Columbia,

(D.C. Cir. 2003).

The Court accepts the allegations of the complaint as true but is not limited to them; it may

consider materials outside the pleadings as necessary to determine its jurisdiction. Jerome

Stevens Pharms., Inc. v. Food & Drug Admin.,

(D.C. Cir. 2005).

The latter rule tests the legal sufficiency of a complaint. To survive a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009). The court must “accept the well-pleaded factual allegations of the

1 Akter originally sued Anthony Blinken, in his official capacity as Secretary of State, and Merrick B. Garland, in his official capacity as Attorney General. Under Federal Rule of Civil Procedure 25(d), Secretary Marco Rubio and Attorney General Pam Bondi are automatically substituted for their predecessors in office. Akter also sues Richard Visek, the Principal Deputy Legal Adviser of the Office of the Legal Adviser of the Department of State, and Julie Stufft, the Deputy Assistant Secretary for Visa Services, Bureau of Consular Affairs, in their official capacities. Defendants are collectively called “the Government” here.

3 complaint as true and draw all reasonable inferences from those allegations in the plaintiff’s

favor.” Hurd v. District of Columbia,

(D.C. Cir. 2017) (quoting Iqbal,

).

III.

Akter has failed to state a claim for unreasonable delay. So the Court will grant the

Government’s motion to dismiss.

Claims of unreasonable delay of agency action are considered under two frameworks: the

Mandamus Act and the APA. See

(granting district courts the jurisdiction to

compel “any agency . . . to perform a duty owed to the plaintiff”);

(1) (granting

the reviewing court authority to “compel agency action unlawfully withheld or unreasonably

delayed.”). Akter’s Complaint obliquely alludes to both. See Compl. Part IV ¶¶ 22, 23.

Start with mandamus—a rare remedy with rigorous prerequisites. Indeed, “[f]ew legal

standards are more exacting than the requirements for invoking mandamus jurisdiction under

§ 1361.” Illinois v. Ferriero,

(D.C. Cir. 2023). It is “drastic” and

“extraordinary” and thus “hardly ever granted.” Ferriero,

(quoting In re Cheney,

(D.C. Cir. 2005)). So it is often considered “an option of last resort.”

Clearly, then, a plaintiff seeking mandamus has high hurdles to surmount. Most relevant

here, she must establish that the agency has violated “a crystal-clear legal duty.” In re Nat’l

Nurses United,

(D.C. Cir. 2022). The conception of this duty is “narrowly

defined,” limited to those that are “ministerial” and “peremptory.” In re Cheney,

; United States ex rel. McLennan v. Wilbur,

(1931). Mandamus-eligible

duties must be “clear and indisputable.” Wilbur,

; see also In re Bluewater

4 Network,

(D.C. Cir. 2000) (mandamus is “reserved only for the most

transparent violations of a clear duty to act”).

A plaintiff must also show that she has “a clear and indisputable right to the particular

relief sought against the federal official” and that she “has no adequate alternative remedy.”

Ferriero,

. “These three threshold requirements are jurisdictional; unless all are

met, a court must dismiss the case for lack of jurisdiction.” Am. Hosp. Ass’n v. Burwell,

(D.C. Cir. 2016). But “because the existence of a legal duty owed to the plaintiff

is critical to whether adjudicative power is present,” “mandamus jurisdiction under § 1361

merges with the merits.” 14 Charles A. Wright & Arthur R. Miller, Federal Practice &

Procedure § 3655 (4th ed. 2019); In re Cheney,

.

Even if a plaintiff satisfies the threshold triad, a court will not grant mandamus relief in

the absence of “compelling equitable grounds.” In re Medicare Reimbursement Litig.,

(D.C. Cir. 2005). The central question on the equities is “whether the agency’s delay is so

egregious as to warrant mandamus.” In re Core Commc’ns,

(D.C. Cir. 2008).

For reviews of agency delay, the so-called TRAC factors guide the inquiry. In re Ctr. for

Biological Diversity,

(D.C. Cir. 2022) (citing Telecommunications Research &

Action Ctr. (TRAC) v. FCC,

(D.C. Cir. 1984)). The Court considers:

(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.

5 TRAC,

.

The standard by which the Court reviews an agency delay claim under the APA is similar,

though a bit less rigorous. See Hamandi v. Chertoff,

(D.D.C. 2008). The

tests share at least one threshold requirement: Akter must assert that an agency has “failed to take

a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All.,

(2004) (cleaned up). The merits are also governed by the TRAC factors. See Mashpee

Wampanoag Tribal Council, Inc. v. Norton,

(D.C. Cir. 2003). 2

A.

Start with the preliminary jurisdictional questions. The chief jurisdictional dispute here is

whether the Government has violated a discrete, non-discretionary duty in failing to schedule

Akter’s visa interview. See Mot. Dismiss 10–19. Akter acknowledges that “no specific statute

mandates the scheduling of visa interviews.” Br. Opp’n 9; see also Avagyan v. Blinken, No. 22-

cv-2643 (CRC),

, at *4 n.2 (D.D.C. Sept. 29, 2022) (“[F]or the reasons

explained by several fellow courts in this district . . . the Department does not have a mandatory,

nondiscretionary duty to interview them and adjudicate their applications.”). Still, Akter argues

that the agency has a duty to schedule her interview within a reasonable time. See Compl. Part

IV ¶ 28. This mandamus-warranting duty allegedly stems from the APA, which specifies that

agencies “shall proceed to conclude a matter presented to it” “[w]ith due regard for the

2 Some courts have suggested that an APA remedy trumps a mandamus remedy, as mandamus is available only when there is no other adequate remedy. See Hamandi,

(“Because the Court finds that it has jurisdiction over USCIS pursuant to . . . the APA, it need not reach the question of whether mandamus is available to compel action by the agency on plaintiff’s application.”). But the APA itself only authorizes judicial review of final agency action “for which there is no other adequate remedy in a court.”

. It is unclear which takes precedence. Either way, though, a plaintiff need not show she has a “clear and indisputable right to relief” to challenge unreasonable agency delay under the APA. Ferriero,

. Thus mandamus remains more demanding to that extent.

6 convenience and necessity of the parties or their representatives and within a reasonable time.”

(b); Compl. Part II ¶ 9.

The D.C. Circuit recently considered whether § 555(b) “places a clear, non-discretionary

duty” on consular officers to re-adjudicate applications that were refused but kept in

administrative processing, meaning the agency retained the right to change its mind about the

refusal later if circumstances shifted. See Karimova v. Abate,

, at *2–3 (D.C.

Cir. July 24, 2024) (per curiam). The court concluded that “Section § 555(b) does no such

thing.” Id. at *3. It stressed that the provision “simply expresses a congressional view that

agencies should act within reasonable time frames” and is a mere “statement of general, good-

governance principles.” Id. at *3, *4 (cleaned up) (citing Attorney General’s Manual on the

Administrative Procedure Act 65 (1947)). The provision’s “non-specific directive to all agencies

to ‘proceed to conclude a matter’ within a ‘reasonable time’ and with ‘due regard’ to the parties

leaves officials ample room for judgment based on the circumstances.” Id. at *3 (quoting

(b)). Thus, according to the panel, “[i]t does not plainly define and place upon

consular officers a crystal-clear legal duty after they have adjudicated a visa application to then

forgo any potentially beneficial follow-on administrative processing.”

(cleaned up).

The Government argues that Karimova binds this Court and demands dismissal of

Akter’s Complaint. Mot. Dismiss 12–13; Reply Br., ECF No. 11, at 3–5. The Court disagrees.

While Karimova may be persuasive, it is not controlling precedent. D.C. Circuit Rule 36(e)(2)

explains that “a panel’s decision to issue an unpublished disposition means that the panel sees no

precedential value in that disposition.” So unpublished opinions do “not strictly bind panels” of

the D.C. Circuit; they “may be considered persuasive authority, but they do not constrain a panel

of the court from reaching a contrary conclusion in a published opinion after full consideration of

7 the issue.” In re Grant,

(D.C. Cir. 2011). “And because the panel issuing

such a disposition must unanimously agree that it does not ‘alter, modify, or significantly clarify

a rule of law,’ these decisions are frequently announced in a way that makes them not ‘suitable

for governing future cases.’”

(cleaned up) (first quoting D.C. Cir. R. 36(e)(2), and then

quoting Hart v. Massanari,

(9th Cir. 2001)).

The Government acknowledges that unpublished opinions do not bind subsequent panels

of the appellate court. Reply Br. 5. But it contends that subordinate courts are still obligated to

follow them.

It does not cite any support for this Solomonic proposition. And it is clear why

it cannot. If an opinion has intentionally disclaimed precedential value, that disclaimer would

attach to the opinion, not to the court considering the opinion. See Gunner v. Welch,

(6th Cir. 2014) (district court erred in, inter alia, relying on unpublished opinion as

binding precedent); Process & Indus. Devs. Ltd. v. Fed. Republic of Nigeria,

,

7 n.3 (D.D.C. 2020), aff’d on other grounds,

(D.C. Cir. 2022) (noting that the court

was not bound by an unpublished decision of the D.C. Circuit).

The Government makes much of a change in the D.C. Circuit rules at the turn of the

century. It points out that D.C. Circuit Rule 32.1(b)(1)(B) provides that “[a]ll unpublished orders

or judgments of this court . . . entered on or after January 1, 2002, may be cited as precedent.”

But this admittedly confusingly worded rule change did not alter the nonbinding nature of

unpublished opinions. In re Grant,

(describing the rule change and concluding

that “unpublished orders or opinions do not have binding precedential effect.”). Instead, the rule

change reversed a policy prohibiting litigants from citing unpublished dispositions at all. See

16AA Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 3978.10 (5th ed.

2019); Head v. Wilson,

, 110 n.9 (D.C. Cir. 2015). So, in short: unpublished

8 dispositions can be cited by litigants now. But they are not binding—on panels of the appellate

court, or on this Court. Instead, they are persuasive authority. Accord Haeri Mehneh v. Blinken,

No. 1:24-cv-1374-ZMF,

, at *5–6 (D.D.C. Dec. 16, 2024) (“This Court joins

others in finding Karimova nonbinding.”); but see Ibrahim v. Spera,

, at *3

(D.D.C. Sept. 6, 2024) (“This Court is bound to follow [Karimova]…. [T]he Court is unaware of

any authority it might have to review or disregard a decision issued by an appellate court.”).

More, while Karimova is a useful guidepost, it is not directly on point here. Karimova

presented a distinct factual context. Its holding is limited to finding that § 555(b) does not

“place[] a clear, non-discretionary duty on [the] consular officer to re-adjudicate [plaintiff’s]

already-refused application and, this time, to do it without subsequently retaining the application

in case circumstances change in [plaintiff’s] favor.” Karimova,

, at *3. In

other words, the Karimova panel found that § 555(b) did not create a clear duty for a consular

officer to reopen an already-closed adjudication, and to do so in a reasonable time. See id at *3-

4. (“Karimova’s ‘matter’ has already been ‘concluded.’”) (quoting

(b)). It is

unclear whether the same conclusion obtains when considering whether § 555(b) creates a clear

duty for a consular officer to resolve a visa adjudication that is actively ongoing.

The Court opts to remain on the shores of this swamp. The D.C. Circuit has instructed

lower courts to proceed to the merits “where doing so ma[kes] it possible to avoid a doubtful

issue of statutory jurisdiction.” Kramer v. Gates,

(D.C. Cir. 2007); accord

Janay v. Blinken,

, 113 (D.D.C. 2024). The requirement of a clear,

nondiscretionary duty is rooted in the Mandamus Act, not Article III. See In re Medicare

Reimbursement Litig.,

(grounding the jurisdictional requirements in the

Mandamus Act rather than Article III); City of Milwaukee v. Saxbe,

(7th Cir.

9 1976) (same); McGaw v. Farrow,

(4th Cir. 1973) (same). So rather than wade

into the murk, the Court turns to the merits.

B.

As discussed, the merits of an unreasonable delay of agency action claim are governed by

the TRAC factors. TRAC,

. These factors are often grouped as follows. First, “is

there any rhyme or reason—congressionally prescribed or otherwise—for an agency’s delay

(factors one and two)?” Sawahreh v. United States Dep’t of State,

, 161

(D.D.C. 2022) (cleaned up). Second, “what are the consequences of delay if the Court does not

compel the agency to act (factors three and five)?”

Third, “how might forcing the agency to

act thwart its ability to address other priorities (factor four)?”

And last, “is the delay

intentional or due to any impropriety on the part of the agency (factor six)?”

Start with the first two considerations. Akter protests that she has been made to endure a

13-month delay between her documentary completion and the filing of her mandamus petition.

Br. Opp’n 30; see also Barazandeh v. Dep’t of State, No. 23-cv-1581 (BAH),

,

at *7 n. 7 (D.D.C. Jan. 30, 2024) (“The proper method for calculating delay []is the length of

time between the last action the government took on a visa application and the filing of

plaintiff’s complaint.”). But an extended wait alone is usually insufficient to show that the

agency does not follow a rule of reason. See Da Costa v. Immigr. Inv. Program,

(D.C. Cir. 2023) (rejecting claim that a delay of four-and-a-half years was per se

unreasonable). And “Congress has given the agencies wide discretion in the area of immigration

processing.” Skalka v. Kelly,

, 153–54 (D.D.C. 2017). Courts should

hesitate to interfere with an agency’s discretion over how to allocate its resources. See In re Barr

Lab’ys., Inc.,

(D.C. Cir. 1991).

10 This does not mean, however, that an agency can simply point to its broad discretion and

excuse any length of delay; it still must show that there is some sort of processing rationale being

followed. See, e.g., Ahmed v. Blinken,

, 13 (D.D.C. 2024) (deciding that a

plaintiff could survive a motion to dismiss when the agency admitted that there was no

processing queue). Here, the Government points to just that rationale. Once a visa application is

deemed documentarily complete, interviews are scheduled according to the date of submission

and the consulate’s availability. See 9 FAM 504.4-6a. Courts in this district have regularly

found that such a first-in, first-out methodology is a “rule of reason.” See L’Association des

Americains Accidentels v. Dep’t of State,

, 82 (D.D.C. 2022).

And a 13-month delay under a first-in, first-out approach is not unreasonable. “Courts of

this jurisdiction often look to the length of delay as a rough yardstick to determine whether [a

first-in, first-out rule] is, in fact, being applied.” Quiros v. Amador,

, 41

(D.D.C. 2023), aff’d sub nom. Karimova,

. A delay of just over a year is

shorter than those that courts have found reasonable in similar circumstances. See

(collecting

cases). The first two TRAC factors favor the Government.

Moving to factors three and five, which consider the nature of the interests prejudiced by

the delay, including impacts on human welfare. Akter alleges worsening conditions in

Bangladesh that threaten the safety and education of her children and exacerbate the stress her

husband faces at work. Compl. ¶ 9. The prolonged delay has caused Akter “significant

emotional, physical, and psychological distress.” Compl. ¶ 10. Courts in this district have found

that similar allegations skew these factors in the plaintiff’s favor, if only slightly. Siddiqui v.

Blinken,

, 77 (D.D.C. 2022). Still, “[a]ll applicants awaiting adjudication of a

visa application experience some level of negative impact.”

While “[t]he Court sympathizes

11 with [Akter] and her family’s difficulties,” “she is not alone” in experiencing them. Dastagir v.

Blinken,

, 168 (D.D.C. 2021). “Catapulting [Akter] to the front of the line”

would come at the expense of others who shoulder equally taxing burdens.

Now to the fourth factor, which looks at the costs that expediting this action would

impose on the agency’s other obligations. TRAC,

. Under this factor, the Court

should deny relief “where a judicial order putting [Akter] at the head of the queue” would

“simply move[] all others back one space and produce[] no net gain.” In re Barr Lab’ys,

. That is precisely what Akter asks for here—a mandate to bump her to the front of the

line. Compl. at 12 (asking the Court to “[c]ompel Defendants and those acting under them to

take all appropriate action to schedule an interview and adjudicate Plaintiff’s documentarily

completed” application, “without further delay.”). But the Court “ha[s] no basis for reordering

agency priorities.” In re Barr Lab’ys, Inc.,

. So this factor not only supports the

Government—it compels dismissal on its own. See Mashpee, 336 F.3d at 1100–01.

Moving finally to the sixth factor, which reminds courts that they “need not find any

impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably

delayed.’” TRAC,

. Akter does not allege any bad faith on behalf of the

Government. So this factor is neutral. Dastagir, 557 F. Supp. 3d at 168.

***

On balance, the TRAC factors show that the Government’s delay is not “so egregious as

to warrant mandamus.” In re Core Commc’ns, Inc.,

. So too do they suggest that

adjudication on Akter’s position was not “unreasonably delayed.” 5 U.S.C. 706(1). Indeed, a

delay of a year or so in the visa mandamus context is rather brief. See, e.g., Arab v. Blinken,

, 69–71 (D.D.C. 2022) (ruling that a 30-month delay was not unreasonable); Da

12 Costa v. Immigr. Inv. Program Off.,

, 14 (D.D.C. 2022), aff’d,

(D.C. Cir. 2023) (holding that a 27-month delay did not “cross the line from reasonable to

unreasonable.”). Akter’s Complaint accordingly fails to state a claim upon which relief can be

granted.

IV.

For those reasons, the Government’s motion to dismiss will be granted. A separate order

will issue today.

2025.07.16 16:48:31 -04'00' Dated: July 16, 2025 TREVOR N. McFADDEN, U.S.D.J.

13