Opinion
Case No. 18-cv-01587-JD Case No. 18-cv-07818-JD
2020-06-05
Farangis EMAMI, et al., Plaintiffs, v. Kirstjen NIELSEN, et al., Defendants. Pars Equality Center, et al., Plaintiffs, v. Mike Pompeo, et al., Defendants.
Daniel B. Asimow, Arnold & Porter Kaye Scholer LLP, Babak G. Yousefzadeh, Pro Hac Vice, Sheppard Mullin Richter & Hampton LLP, Elica S. Vafaie, Pro Hac Vice, Javeria Jamil, Asian Americans Advancing Justice - Asian Law Caucus, San Francisco, CA, Darin M. Sands, Lane Powell PC, Portland, OR, Jessica Walder, Dustin J. O'Quinn, Pro Hac Vice, Lane Powell PC, Seattle, WA, Brittney Rezaei, Pro Hac Vice, Zahra A. Billoo, Pro Hac Vice, Council on American-Islamic Relations, Santa Clara, CA, Esther Hsiao-In Sung, Pro Hac Vice, Nicholas Espiritu, Pro Hac Vice, National Immigration Law Center, Los Angeles, CA, John A. Freedman, Pro Hac Vice, Arnold and Porter Kaye Scholer LLP, Joshua Stehlik, Pro Hac Vice, Max Samuel Wolson, National Immigration Law Center, Washington, DC, Kevin Lee Herrera, National Immigration Law Center, Chicago, IL, for Plaintiffs. David Kim, Gisela A. Westwater, P. Angel Martinez, U.S. Department of Justice, Washington, DC, for Defendant Mike Pompeo. David Kim, Gisela A. Westwater, P. Angel Martinez, Stacey Ilene Young, United States Department of Justice, Washington, DC, for Defendants Secretary Kirstjen M. Nielsen, Kevin K. McAleenan, Department of Homeland Security, U.S. Department of State, U.S. Customs and Border Protection.
Daniel B. Asimow, Arnold & Porter Kaye Scholer LLP, Babak G. Yousefzadeh, Pro Hac Vice, Sheppard Mullin Richter & Hampton LLP, Elica S. Vafaie, Pro Hac Vice, Javeria Jamil, Asian Americans Advancing Justice - Asian Law Caucus, San Francisco, CA, Darin M. Sands, Lane Powell PC, Portland, OR, Jessica Walder, Dustin J. O'Quinn, Pro Hac Vice, Lane Powell PC, Seattle, WA, Brittney Rezaei, Pro Hac Vice, Zahra A. Billoo, Pro Hac Vice, Council on American-Islamic Relations, Santa Clara, CA, Esther Hsiao-In Sung, Pro Hac Vice, Nicholas Espiritu, Pro Hac Vice, National Immigration Law Center, Los Angeles, CA, John A. Freedman, Pro Hac Vice, Arnold and Porter Kaye Scholer LLP, Joshua Stehlik, Pro Hac Vice, Max Samuel Wolson, National Immigration Law Center, Washington, DC, Kevin Lee Herrera, National Immigration Law Center, Chicago, IL, for Plaintiffs.
David Kim, Gisela A. Westwater, P. Angel Martinez, U.S. Department of Justice, Washington, DC, for Defendant Mike Pompeo.
David Kim, Gisela A. Westwater, P. Angel Martinez, Stacey Ilene Young, United States Department of Justice, Washington, DC, for Defendants Secretary Kirstjen M. Nielsen, Kevin K. McAleenan, Department of Homeland Security, U.S. Department of State, U.S. Customs and Border Protection.
ORDER RE MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT
Re: Dkt. No. 98
Re: Dkt. No. 120
JAMES DONATO, United States District Judge These related cases concern Presidential Proclamation 9645, " Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats." 82 Fed. Reg. 45161 (2017) (the "Proclamation"). The Proclamation sharply curtailed, and in some cases completely suspended, entry into the United States by nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia. Id. at 45162, 45165-67. Plaintiffs focus on nationals of Iran, Libya, Somalia, Syria and Yemen, and challenge the government's handling of a waiver program that would allow exceptions for entry into the United States in certain circumstances. The gravamen of the complaints is that the government created guidance for waivers which it has systematically ignored to deny the vast majority of waiver applications.
The restrictions on nationals of Chad have been lifted. Presidential Proclamation No. 9723, 83 Fed. Reg. 15937 (Apr. 10, 2018).
The Court granted in part and denied in part a motion to dismiss in the Emami case with leave to amend, finding that plaintiffs had plausibly stated a claim under the Accardi doctrine. Dkt. No. 74 (Emami ) at 16. The heart of this claim was that "the State Department has acted arbitrarily and unlawfully by disregarding its own procedures and rules in administering the waiver program" established by the Proclamation. Id. at 14. The Emami plaintiffs filed a second amended complaint. Dkt. No. 75 (Emami ). As the Emami motion to dismiss proceedings were under way, the Pars case was transferred here from the Western District of Washington. Dkt. No. 80 (Pars ). The operative complaint in that case remains the initial complaint. Dkt. No. 1 (Pars ). Defendants have filed motions to dismiss, or to obtain summary judgment for, the second amended complaint in Emami and the complaint in Pars. Dkt. No. 98 (Emami ); Dkt. No. 120 (Pars ). This order resolves those motions.
DISCUSSION
The parties' familiarity with the record is assumed. The prior dismissal order provides a detailed statement of the case and plaintiffs' claims, and the governing standards for a motion to dismiss. Dkt. No. 74 (Emami ).
I. MOTIONS TO DISMISS
A. Pars Complaint
The Court has not been called upon to review the plausibility of the Pars complaint until now. The analysis of the Emami complaint in the dismissal order applies in full measure here, and streamlines the discussion.
1. Justiciability
The Court squarely answered the government's justiciability objection in Emami. Dismissal for lack of a justiciable controversy was denied because the Emami plaintiffs are not suing over "individual consular officer decisions on the merits ... [or] the outcome of any particular consular officer's decision in a given case." Dkt. No. 74 (Emami ) at 11-12. They are "challenging systemic practices with respect to the waiver program, and not individualized determinations for any specific person." Id. at 12. So too in the Pars complaint. See Dkt. No. 1 (Pars ); Dkt. No. 125 (Pars ) at 6 ("Plaintiffs do not seek review of any individual, discretionary decision by a consular officer," rather, "they seek review of the policies and practices that Defendants have adopted to implement the Proclamation"). This is a justiciable controversy properly before the Court.
2. APA Claim
Defendants' request to dismiss the APA claim in Pars is denied. Defendants say that the APA does not apply at all. Dkt. No. 120 (Pars ) at 9-10. But as the Court has already determined, the Administrative Procedure Act "creates a ‘basic presumption of judicial review for one suffering legal wrong because of agency action,’ " and our circuit has construed the APA "to provide for ‘broad judicial review of agency action.’ " Dkt. No. 74 (Emami ) at 13 (quoting Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv. , ––– U.S. ––––, 139 S.Ct. 361, 370, 202 L.Ed.2d 269 (2018), and Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec. , 908 F.3d 476, 494 (9th Cir. 2018) ). Agency action is not immunized from review just because it might be linked to a Presidential Proclamation. See East Bay Sanctuary Covenant v. Trump , 932 F.3d 742, 770 (9th Cir. 2018) ("insofar as DOJ and DHS have incorporated the Proclamation by reference into the Rule, we may consider the validity of the agency's proposed action, including its ‘rule ... or the equivalent’ "); Chamber of Commerce of the U.S. v. Reich , 74 F.3d 1322, 1326 (D.C. Cir. 1996) ("agency regulations that implement an executive order are reviewable under the APA").
The Pars complaint is based on a final agency action properly subject to judicial review. Defendants say that plaintiffs have "fail[ed] ... to direct their complaint against any ‘final agency action,’ " Dkt. No. 128 (Pars ) at 2-3, but that is not a fair characterization of plaintiffs' complaint. The Pars plaintiffs have identified, and are challenging, a final agency action consisting of "the ‘worldwide guidance’ referenced in the State Department's February 22 letter and the State Department guidance, cables, sample Q's & A's and instructions referenced in the Richardson declaration," along with other actions taken by defendants in reliance of Section 3(c) of the Proclamation. Dkt. No. 1 (Pars ) ¶¶ 279-80. Plaintiffs further allege that these actions resulted in a waiver process in which, among other things, "visa applicants have been denied waivers without ever having received notice of a waiver process, and/or have been denied waivers without ever having had a consular interview or other opportunity to provide evidence of their eligibility for a waiver, in contravention of 22 C.F.R. §§ 41.121 and 42.81, which state that when refusing the issuance of a visa, a consular officer must inform the visa applicant ‘whether there is, in law or regulations, a mechanism (such as a waiver) to overcome the refusal.’ " Id. ¶ 281 (quoting 22 C.F.R. § 41.121(b)(1) ). Plaintiffs also allege that the government has implemented a waiver process in which "consular officers do not have discretion over whether and when to grant a waiver, and thus no discretion over whether they may grant a visa to an individual subject to the Proclamation, in contravention of the Proclamation itself as well as 8 U.S.C. § 1104(a), which states that consular officers have complete discretion over the issuance of visas and that such discretion may not be circumscribed by the Secretary of State." Id. ¶ 284.
Defendants suggest that "the Proclamation [is] the only relevant source of law in this case," Dkt. No. 128 (Pars ) at 2-3, but plaintiffs have identified a number of legal tests with which to assay the government's conduct, and defendants have not demonstrated that plaintiffs have missed the mark. In effect, plaintiffs are following Trump v. Hawaii , ––– U.S. ––––, 138 S.Ct. 2392, 2408, 201 L.Ed.2d 775 (2018), where the Supreme Court measured the Proclamation against the provisions of the Immigration and Nationality Act, even after finding that the President had lawfully exercised his "broad discretion to suspend the entry of aliens into the United States" under § 1182(f) of that statute. See Hawaii , 138 S.Ct. at 2411 ("We may assume that § 1182(f) does not allow the President to expressly override particular provisions of the INA. But plaintiffs have not identified any conflict between the statute and the Proclamation"). In this case, plaintiffs have plausibly alleged conflicts between the government's actions, 22 C.F.R. §§ 41.121 and 42.81, the Proclamation, and 8 U.S.C. § 1104(a). Defendants effectively concede the point by sidestepping the conflict allegations with factual arguments, such as "each Plaintiff received exactly what the regulations require," Dkt. No. 120 (Pars ) at 11, and "Plaintiffs are wrong that consular officers are denied discretion to grant waivers," Dkt. No. 128 (Pars ) at 7.
The Court also declines to dismiss at this juncture plaintiffs' allegation that defendants' implementation of the waiver provision violated the APA's notice-and-comment requirements. Dkt. No. 125 (Pars ) at 11; Dkt. No. 1 (Pars ) ¶ 287 ("Defendants' actions, as set forth above, affect the Plaintiffs' substantive rights and were made without observance of procedure required by law in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(D)."). "[W]hen an agency promulgates regulations other than ‘interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice,’ 5 U.S.C. § 553(b)(A), the statute provides the public with pre-promulgation notice and comment. 5 U.S.C. § 553(b), (c)." Alcaraz v. Block , 746 F.2d 593, 610-11 (9th Cir. 1984) (internal citation omitted). The government cites Innovation Law Lab v. McAleenan , 924 F.3d 503, 509 (9th Cir. 2019), for the proposition that the State Department's waiver guidance was not required to go through notice-and-comment rulemaking because it was merely "a ‘general statement of policy’ to guide the exercise of discretion by its officials." Dkt. No. 128 (Pars ) at 6. But that is not consistent with plaintiffs' allegations here. Plaintiffs have plausibly alleged for 12(b)(6) purposes that defendants have issued guidance which resulted in a waiver process in which consular officers had no discretion to exercise at all. Dkt. No. 1 (Pars ) ¶¶ 279, 284. The government may, however, raise the argument again if warranted at a later stage of the case, after development of the record.
3. Accardi Claim
As a second claim, the Pars plaintiffs essentially re-allege their first claim in the alternative, this time under the " Accardi Doctrine & Administrative Procedure Act." Dkt. No. 1 (Pars ) ¶¶ 289-94. It will go forward for the reasons stated in the Emami order with respect to the Accardi doctrine. The government says that " Accardi has no relevance here, where the Proclamation and its related guidance are neither regulations nor internal documents that create any procedural rights." Dkt. No. 120 (Pars ) at 10. This is in effect an improper request for reconsideration of the Emami order, see Civil L.R. 7-9, and in any event, the Accardi doctrine is not so circumscribed, as the government's own case citations demonstrate. In Montilla v. Immigration and Naturalization Service , 926 F.2d 162, 167 (2d Cir. 1991), the court held that "[t]he Accardi doctrine is premised on fundamental notions of fair play underlying the concept of due process.... Its ambit is not limited to rules attaining the status of formal regulations. As the Supreme Court noted ‘where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.’ " The Montilla court further noted that "[t]he doctrine has continued vitality, particularly where a petitioner's rights are ‘affected.’ " Id.
Two other aspects of the Montilla case are relevant here. It does not stand for the proposition, as the government suggests, that "even assuming that an Accardi claim could survive a motion to dismiss, the only relief available would be limited to a ‘remand’ with instructions for the agency to comply." Dkt. No. 120 (Pars ) at 11. In Montilla , a remand to the Board of Immigration Appeals made sense because petitioner's sole contention on appeal was that "the immigration judge did not follow the applicable regulation protecting an alien's right to counsel, 8 C.F.R. § 242.16(a) (1990), and that this error constituted a denial of due process" in his deportation proceeding. 926 F.2d at 166, 170. The Montilla court never said that a remand was the only option for an Accardi violation; to the contrary, it emphasized that the doctrine was "still alive and well" and that it was a "judicially-evolved rule ensuring fairness." Id. at 168. This underscores the flexibility inherent in the doctrine to fashion a remedy that fits the wrong.
Montilla is also notable for applying Accardi as a freestanding claim, untethered to the APA or other statute. This is entirely consistent with the decision in Accardi itself, which was not based on the APA. See United States ex rel. Accardi v. Shaughnessy , 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). The Court has reached the same conclusion as Montilla that an Accardi claim can stand on its own and "is at heart a claim of procedural fairness that owes as much to the Due Process Clause as to the Administrative Procedures Act." Dkt. No. 122 (Emami ) at 2 (citing Jefferson v. Harris , 285 F. Supp. 3d 173, 185 (D.D.C. 2018) ). Plaintiffs' decision to tie their Accardi claim to the APA is analytically questionable, and they may find that they have imposed on themselves unnecessary burdens by doing that. The request to dismiss the Pars plaintiffs' second claim under the Accardi doctrine is denied.
4. Fifth Amendment Due Process Claim
Plaintiffs' third claim directly under the Due Process Clause of the Fifth Amendment for a violation of procedural due process cannot go forward. In the Emami order, the Court dismissed this claim due to plaintiffs' "inability to allege a deprivation of an interest protected by the Due Process Clause." Dkt. No. 74 (Emami ) at 17. This is a separate and different inquiry from the one under Accardi , and is subject to different standards. The Pars plaintiffs ask the Court to "reconsider its view," Dkt. No. 125 (Pars ) at 12, on the basis of a circuit decision from 2008. See id. at 12-13 (citing Bustamante v. Mukasey , 531 F.3d 1059 (9th Cir. 2008) ). This is also an improper request for reconsideration, and it is unpersuasive in that Bustamante pre-dates Kerry v. Din , 576 U.S. 86, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015), the main basis for the Court's prior order on this issue, by nearly a decade. The third claim is dismissed.
B. Emami Second Amended Complaint
The second amended complaint in Emami , and the attendant motion to dismiss arguments, are Groundhog Day or déjà vu all over again, depending on one's taste in clichés. The allegations and arguments on both sides are virtually unchanged.
The Emami SAC continues to suffer from vague and conflicting allegations. To take one example, the SAC says that defendants have failed to issue any guidance at all. See , e.g. , Dkt. No. 75 (Emami ) ¶ 313 ("Defendants have either failed to promulgate guidance or have promulgated guidance that is arbitrary and capricious on its face"). This is an inherently odd assertion, especially in light of plaintiffs' own complaint exhibits in which the State Department recognized its online postings as its "outward facing guidance" for waivers. Dkt. No. 74 (Emami ) at 14. Plaintiffs try to walk this back in their opposition to the motion to dismiss, where they say that their claim "is not that no guidance has been issued at all, but rather that the issued guidance has not been followed; that the guidance itself is arbitrary and capricious; and that it violates Plaintiffs' constitutional rights." Dkt. No. 104 (Emami ) at 1-2. In light of this admission, the portions and claims in the SAC alleging that no guidance was issued are dismissed. The Court will not catalog here the other vague and inconsistent allegations in the SAC, but if they become an issue in the case, they are likely to meet a similar disposition.
The government's request to dismiss the first claim under the APA is denied. Plaintiffs allege, among other things, that the government has "failed to follow their own policies and procedures," and have "put in place a waiver process in which applicants are denied waivers without ever receiving notice or an opportunity to apply [and] applicants are denied waivers without having had a consular interview since the time the Proclamation went into effect." Dkt. No. 75 (Emami ) ¶ 314. Plaintiffs allege that these actions should be invalidated under Accardi , 347 U.S. 260, 74 S.Ct. 499. Id. ¶ 317. The Court has already found this to be a viable claim, Dkt. No. 74 (Emami ), and that conclusion holds.
The second and third claims for relief under the Fifth Amendment are again dismissed based on an "inability to allege a deprivation of an interest protected by the Due Process Clause." Dkt. No. 74 (Emami ) at 17. The Court has also determined that the equal protection claim "holds together only if it is assumed that the Proclamation unconstitutionally excludes Muslims or illegally discriminates on the basis of nationality, a proposition that the Supreme Court turned aside in Hawaii ." Id. (citing 138 S.Ct. at 2413-23 ). The Court further noted that the equal protection claim was likely to be subject to rational basis review, and that the Supreme Court "has already concluded in reviewing the Proclamation that ‘the Government has set forth a sufficient national security justification to survive rational basis review.’ Hawaii , 138 S.Ct. at 2423." Id. at 18. The Emami plaintiffs' Fifth Amendment claims are virtually unchanged from their previous versions, and the Court sees no reason to reach a different conclusion on either claim.
The mandamus claim is dismissed. The claim focuses on defendants' alleged "fail[ure] to develop meaningful guidance," Dkt. No. 75 (Emami ) ¶ 336, an allegation that plaintiffs have now retracted. Plaintiffs have added a claim for unreasonable delay on decisions on individual visa and waiver applications. Id. ¶ 337. But "[m]andamus is an extraordinary remedy and is available to compel a federal official to perform a duty only if: (1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available." Kildare v. Saenz , 325 F.3d 1078, 1084 (9th Cir. 2003) ; see also Heckler v. Ringer , 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) ("The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty."). Plaintiffs do not identify any source of law that mandates that decisions be issued within a certain period of time, and the decisions on individual waiver applications are inherently discretionary. See 82 Fed. Reg. at 45168 ("a consular officer, or the Commissioner, United States Customs and Border Protection (CBP), or the Commissioners' designee, as appropriate, may, in their discretion, grant waivers on a case-by-case basis").
II. SUMMARY JUDGMENT
The government's motions for summary judgment are denied. The government relies on an "administrative record" to "show[ ] that defendants have applied the waiver provision in an orderly way." Dkt. No. 98 (Emami ) at 11. But this does not account for the Accardi claims, and "there is no ‘administrative record’ when the essence of the claim is that the government has failed to act in accordance with its own rules and regulations." Dkt. No. 122 (Emami ) at 2. In addition, the multiple discovery dispute letters that have been filed in these cases underscore the degree to which the parties disagree about the material facts and what the "administrative record" might properly contain. These factual disputes preclude summary judgment at this time. See Federal Trade Commission v. D-Link Systems, Inc. , No. 17-cv-00039-JD, 2018 WL 6040192 (N.D. Cal. Nov. 5, 2018). It is also doubtful that plaintiffs have had a full and fair opportunity to take discovery from defendants and test the evidence the government has presented as the administrative record.
CONCLUSION
In the Pars case, defendants' motion to dismiss is denied as to plaintiffs' APA claim and Accardi claim, but granted as to the Fifth Amendment claim. The summary judgment motion is denied without prejudice.
In the Emami case, defendants' motion to dismiss is denied for plaintiffs' APA claim, but granted for plaintiffs' Fifth Amendment Due Process and Equal Protection claims, and the mandamus claim. Defendants' summary judgment motion is denied without prejudice.
On this record, the Court declines to provide yet another round of pleading amendments to either set of plaintiffs. The Emami plaintiffs have had multiple opportunities to amend, in which case the Court's discretion to deny further amendment is especially broad. See Chodos v. West Publishing Co. , 292 F.3d 992, 1003 (9th Cir. 2002). So too for the Pars plaintiffs, given the procedural context of these closely related cases.