Emami v. Nielsen ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FARANGIS EMAMI, et al., Case No. 18-cv-01587-JD 8 Plaintiffs, ORDER RE MOTIONS TO DISMISS 9 v. OR FOR SUMMARY JUDGMENT 10 KIRSTJEN NIELSEN, et al., Re: Dkt. No. 98 Defendants. 11 12 PARS EQUALITY CENTER, et al., Case No. 18-cv-07818-JD 13 Plaintiffs, 14 v. Re: Dkt. No. 120 15 MIKE POMPEO, et al., 16 Defendants. 17 18 These related cases concern Presidential Proclamation 9645, “Enhancing Vetting 19 Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or 20 Other Public-Safety Threats.” 82 Fed. Reg. 45161 (2017) (the “Proclamation”). The 21 Proclamation sharply curtailed, and in some cases completely suspended, entry into the United 22 States by nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia. Id. 23 at 45162, 45165-67.1 Plaintiffs focus on nationals of Iran, Libya, Somalia, Syria and Yemen, and 24 challenge the government’s handling of a waiver program that would allow exceptions for entry 25 into the United States in certain circumstances. The gravamen of the complaints is that the 26 27 1 government created guidance for waivers which it has systematically ignored to deny the vast 2 majority of waiver applications. 3 The Court granted in part and denied in part a motion to dismiss in the Emami case with 4 leave to amend, finding that plaintiffs had plausibly stated a claim under the Accardi doctrine. 5 Dkt. No. 74 (Emami) at 16. The heart of this claim was that “the State Department has acted 6 arbitrarily and unlawfully by disregarding its own procedures and rules in administering the 7 waiver program” established by the Proclamation. Id. at 14. The Emami plaintiffs filed a second 8 amended complaint. Dkt. No. 75 (Emami). As the Emami motion to dismiss proceedings were 9 under way, the Pars case was transferred here from the Western District of Washington. Dkt. No. 10 80 (Pars). The operative complaint in that case remains the initial complaint. Dkt. No. 1 (Pars). 11 Defendants have filed motions to dismiss, or to obtain summary judgment for, the second 12 amended complaint in Emami and the complaint in Pars. Dkt. No. 98 (Emami); Dkt. No. 120 13 (Pars). This order resolves those motions. 14 DISCUSSION 15 The parties’ familiarity with the record is assumed. The prior dismissal order provides a 16 detailed statement of the case and plaintiffs’ claims, and the governing standards for a motion to 17 dismiss. Dkt. No. 74 (Emami). 18 I. MOTIONS TO DISMISS 19 A. Pars Complaint 20 The Court has not been called upon to review the plausibility of the Pars complaint until 21 now. The analysis of the Emami complaint in the dismissal order applies in full measure here, and 22 streamlines the discussion. 23 1. Justiciability 24 The Court squarely answered the government’s justiciability objection in Emami. 25 Dismissal for lack of a justiciable controversy was denied because the Emami plaintiffs are not 26 suing over “individual consular officer decisions on the merits . . . [or] the outcome of any 27 particular consular officer’s decision in a given case.” Dkt. No. 74 (Emami) at 11-12. They are 1 determinations for any specific person.” Id. at 12. So too in the Pars complaint. See Dkt. No. 1 2 (Pars); Dkt. No. 125 (Pars) at 6 (“Plaintiffs do not seek review of any individual, discretionary 3 decision by a consular officer,” rather, “they seek review of the policies and practices that 4 Defendants have adopted to implement the Proclamation”). This is a justiciable controversy 5 properly before the Court. 6 2. APA Claim 7 Defendants’ request to dismiss the APA claim in Pars is denied. Defendants say that the 8 APA does not apply at all. Dkt. No. 120 (Pars) at 9-10. But as the Court has already determined, 9 the Administrative Procedure Act “creates a ‘basic presumption of judicial review for one 10 suffering legal wrong because of agency action,’” and our circuit has construed the APA “to 11 provide for ‘broad judicial review of agency action.’” Dkt. No. 74 (Emami) at 13 (quoting 12 Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv., 139 S.Ct. 361, 370 (2018), and Regents of the 13 Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 494 (9th Cir. 2018)). Agency action 14 is not immunized from review just because it might be linked to a Presidential Proclamation. See 15 East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 770 (9th Cir. 2018) (“insofar as DOJ and 16 DHS have incorporated the Proclamation by reference into the Rule, we may consider the validity 17 of the agency’s proposed action, including its ‘rule . . . or the equivalent’”); Chamber of 18 Commerce of the U.S. v. Reich, 74 F.3d 1322, 1326 (D.C. Cir. 1996) (“agency regulations that 19 implement an executive order are reviewable under the APA”). 20 The Pars complaint is based on a final agency action properly subject to judicial review. 21 Defendants say that plaintiffs have “fail[ed] . . . to direct their complaint against any ‘final agency 22 action,’” Dkt. No. 128 (Pars) at 2-3, but that is not a fair characterization of plaintiffs’ complaint. 23 The Pars plaintiffs have identified, and are challenging, a final agency action consisting of “the 24 ‘worldwide guidance’ referenced in the State Department’s February 22 letter and the State 25 Department guidance, cables, sample Q’s & A’s and instructions referenced in the Richardson 26 declaration,” along with other actions taken by defendants in reliance of Section 3(c) of the 27 Proclamation. Dkt. No. 1 (Pars) ¶¶ 279-80. Plaintiffs further allege that these actions resulted in 1 ever having received notice of a waiver process, and/or have been denied waivers without ever 2 having had a consular interview or other opportunity to provide evidence of their eligibility for a 3 waiver, in contravention of 22 C.F.R. §§ 41.121 and 42.81, which state that when refusing the 4 issuance of a visa, a consular officer must inform the visa applicant ‘whether there is, in law or 5 regulations, a mechanism (such as a waiver) to overcome the refusal.’” Id. ¶ 281 (quoting 22 6 C.F.R. § 41.121(b)(1)). Plaintiffs also allege that the government has implemented a waiver 7 process in which “consular officers do not have discretion over whether and when to grant a 8 waiver, and thus no discretion over whether they may grant a visa to an individual subject to the 9 Proclamation, in contravention of the Proclamation itself as well as 8 U.S.C. § 1104(a), which 10 states that consular officers have complete discretion over the issuance of visas and that such 11 discretion may not be circumscribed by the Secretary of State.” Id. ¶ 284. 12 Defendants suggest that “the Proclamation [is] the only relevant source of law in this 13 case,” Dkt. No. 128 (Pars) at 2-3, but plaintiffs have identified a number of legal tests with which 14 to assay the government’s conduct, and defendants have not demonstrated that plaintiffs have 15 missed the mark. In effect, plaintiffs are following Trump v. Hawaii, 138 S.Ct. 2392, 2408 16 (2018), where the Supreme Court measured the Proclamation against the provisions of the 17 Immigration and Nationality Act, even after finding that the President had lawfully exercised his 18 “broad discretion to suspend the entry of aliens into the United States” under § 1182(f) of that 19 statute. See Hawaii, 138 S.Ct. at 2411 (“We may assume that § 1182(f) does not allow the 20 President to expressly override particular provisions of the INA. But plaintiffs have not identified 21 any conflict between the statute and the Proclamation”). In this case, plaintiffs have plausibly 22 alleged conflicts between the government’s actions, 22 C.F.R. §§ 41.121 and 42.81, the 23 Proclamation, and 8 U.S.C. § 1104(a). Defendants effectively concede the point by sidestepping 24 the conflict allegations with factual arguments, such as “each Plaintiff received exactly what the 25 regulations require,” Dkt. No. 120 (Pars) at 11, and “Plaintiffs are wrong that consular officers are 26 denied discretion to grant waivers,” Dkt. No. 128 (Pars) at 7. 27 The Court also declines to dismiss at this juncture plaintiffs’ allegation that defendants’ 1 Dkt. No. 125 (Pars) at 11; Dkt. No. 1 (Pars) ¶ 287 (“Defendants’ actions, as set forth above, affect 2 the Plaintiffs’ substantive rights and were made without observance of procedure required by law 3 in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(D).”). “[W]hen an agency 4 promulgates regulations other than ‘interpretative rules, general statements of policy, or rules of 5 agency organization, procedure, or practice,’ 5 U.S.C. § 553(b)(A), the statute provides the public 6 with pre-promulgation notice and comment. 5 U.S.C. § 553(b), (c).” Alcaraz v. Block, 746 F.2d 7 593, 610-11 (9th Cir. 1984) (internal citation omitted). The government cites Innovation Law Lab 8 v. McAleenan, 924 F.3d 503, 509 (9th Cir. 2019), for the proposition that the State Department’s 9 waiver guidance was not required to go through notice-and-comment rulemaking because it was 10 merely “a ‘general statement of policy’ to guide the exercise of discretion by its officials.” Dkt. 11 No. 128 (Pars) at 6. But that is not consistent with plaintiffs’ allegations here. Plaintiffs have 12 plausibly alleged for 12(b)(6) purposes that defendants have issued guidance which resulted in a 13 waiver process in which consular officers had no discretion to exercise at all. Dkt. No. 1 (Pars) 14 ¶¶ 279, 284. The government may, however, raise the argument again if warranted at a later stage 15 of the case, after development of the record. 16 3. Accardi Claim 17 As a second claim, the Pars plaintiffs essentially re-allege their first claim in the 18 alternative, this time under the “Accardi Doctrine & Administrative Procedure Act.” Dkt. No. 1 19 (Pars) ¶¶ 289-94. It will go forward for the reasons stated in the Emami order with respect to the 20 Accardi doctrine. The government says that “Accardi has no relevance here, where the 21 Proclamation and its related guidance are neither regulations nor internal documents that create 22 any procedural rights.” Dkt. No. 120 (Pars) at 10. This is in effect an improper request for 23 reconsideration of the Emami order, see Civil L.R. 7-9, and in any event, the Accardi doctrine is 24 not so circumscribed, as the government’s own case citations demonstrate. In Montilla v. 25 Immigration and Naturalization Service, 926 F.2d 162, 167 (2d Cir. 1991), the court held that 26 “[t]he Accardi doctrine is premised on fundamental notions of fair play underlying the concept of 27 due process. . . . Its ambit is not limited to rules attaining the status of formal regulations. As the 1 to follow their own procedures.’” The Montilla court further noted that “[t]he doctrine has 2 continued vitality, particularly where a petitioner’s rights are ‘affected.’” Id. 3 Two other aspects of the Montilla case are relevant here. It does not stand for the 4 proposition, as the government suggests, that “even assuming that an Accardi claim could survive 5 a motion to dismiss, the only relief available would be limited to a ‘remand’ with instructions for 6 the agency to comply.” Dkt. No. 120 (Pars) at 11. In Montilla, a remand to the Board of 7 Immigration Appeals made sense because petitioner’s sole contention on appeal was that “the 8 immigration judge did not follow the applicable regulation protecting an alien’s right to counsel, 8 9 C.F.R. § 242.16(a) (1990), and that this error constituted a denial of due process” in his 10 deportation proceeding. 926 F.2d at 166, 170. The Montilla court never said that a remand was 11 the only option for an Accardi violation; to the contrary, it emphasized that the doctrine was “still 12 alive and well” and that it was a “judicially-evolved rule ensuring fairness.” Id. at 168. This 13 underscores the flexibility inherent in the doctrine to fashion a remedy that fits the wrong. 14 Montilla is also notable for applying Accardi as a freestanding claim, untethered to the 15 APA or other statute. This is entirely consistent with the decision in Accardi itself, which was not 16 based on the APA. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). The 17 Court has reached the same conclusion as Montilla that an Accardi claim can stand on its own and 18 “is at heart a claim of procedural fairness that owes as much to the Due Process Clause as to the 19 Administrative Procedures Act.” Dkt. No. 122 (Emami) at 2 (citing Jefferson v. Harris, 285 F. 20 Supp. 3d 173, 185 (D.D.C. 2018)). Plaintiffs’ decision to tie their Accardi claim to the APA is 21 analytically questionable, and they may find that they have imposed on themselves unnecessary 22 burdens by doing that. The request to dismiss the Pars plaintiffs’ second claim under the Accardi 23 doctrine is denied. 24 4. Fifth Amendment Due Process Claim 25 Plaintiffs’ third claim directly under the Due Process Clause of the Fifth Amendment for a 26 violation of procedural due process cannot go forward. In the Emami order, the Court dismissed 27 this claim due to plaintiffs’ “inability to allege a deprivation of an interest protected by the Due 1 under Accardi, and is subject to different standards. The Pars plaintiffs ask the Court to 2 “reconsider its view,” Dkt. No. 125 (Pars) at 12, on the basis of a circuit decision from 2008. See 3 id. at 12-13 (citing Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008)). This is also an 4 improper request for reconsideration, and it is unpersuasive in that Bustamante pre-dates Kerry v. 5 Din, 135 S.Ct. 2128 (2015), the main basis for the Court’s prior order on this issue, by nearly a 6 decade. The third claim is dismissed. 7 B. Emami Second Amended Complaint 8 The second amended complaint in Emami, and the attendant motion to dismiss arguments, 9 are Groundhog Day or déjà vu all over again, depending on one’s taste in clichés. The allegations 10 and arguments on both sides are virtually unchanged. 11 The Emami SAC continues to suffer from vague and conflicting allegations. To take one 12 example, the SAC says that defendants have failed to issue any guidance at all. See, e.g., Dkt. No. 13 75 (Emami) ¶ 313 (“Defendants have either failed to promulgate guidance or have promulgated 14 guidance that is arbitrary and capricious on its face”). This is an inherently odd assertion, 15 especially in light of plaintiffs’ own complaint exhibits in which the State Department recognized 16 its online postings as its “outward facing guidance” for waivers. Dkt. No. 74 (Emami) at 14. 17 Plaintiffs try to walk this back in their opposition to the motion to dismiss, where they say that 18 their claim “is not that no guidance has been issued at all, but rather that the issued guidance has 19 not been followed; that the guidance itself is arbitrary and capricious; and that it violates 20 Plaintiffs’ constitutional rights.” Dkt. No. 104 (Emami) at 1-2. In light of this admission, the 21 portions and claims in the SAC alleging that no guidance was issued are dismissed. The Court 22 will not catalog here the other vague and inconsistent allegations in the SAC, but if they become 23 an issue in the case, they are likely to meet a similar disposition. 24 The government’s request to dismiss the first claim under the APA is denied. Plaintiffs 25 allege, among other things, that the government has “failed to follow their own policies and 26 procedures,” and have “put in place a waiver process in which applicants are denied waivers 27 without ever receiving notice or an opportunity to apply [and] applicants are denied waivers 1 No. 75 (Emami) ¶ 314. Plaintiffs allege that these actions should be invalidated under Accardi, 2 347 U.S. 260. Id. ¶ 317. The Court has already found this to be a viable claim, Dkt. No. 74 3 (Emami), and that conclusion holds. 4 The second and third claims for relief under the Fifth Amendment are again dismissed 5 based on an “inability to allege a deprivation of an interest protected by the Due Process Clause.” 6 Dkt. No. 74 (Emami) at 17. The Court has also determined that the equal protection claim “holds 7 together only if it is assumed that the Proclamation unconstitutionally excludes Muslims or 8 illegally discriminates on the basis of nationality, a proposition that the Supreme Court turned 9 aside in Hawaii.” Id. (citing 138 S.Ct. at 2413-23). The Court further noted that the equal 10 protection claim was likely to be subject to rational basis review, and that the Supreme Court “has 11 already concluded in reviewing the Proclamation that ‘the Government has set forth a sufficient 12 national security justification to survive rational basis review.’ Hawaii, 138 S.Ct. at 2423.” Id. at 13 18. The Emami plaintiffs’ Fifth Amendment claims are virtually unchanged from their previous 14 versions, and the Court sees no reason to reach a different conclusion on either claim. 15 The mandamus claim is dismissed. The claim focuses on defendants’ alleged “fail[ure] to 16 develop meaningful guidance,” Dkt. No. 75 (Emami) ¶ 336, an allegation that plaintiffs have now 17 retracted. Plaintiffs have added a claim for unreasonable delay on decisions on individual visa and 18 waiver applications. Id. ¶ 337. But “[m]andamus is an extraordinary remedy and is available to 19 compel a federal official to perform a duty only if: (1) the individual’s claim is clear and certain; 20 (2) the official’s duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from 21 doubt, and (3) no other adequate remedy is available.” Kildare v. Saenz, 325 F.3d 1078, 1084 (9th 22 Cir. 2003); see also Heckler v. Ringer, 466 U.S. 602, 616 (1984) (“The common-law writ of 23 mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if 24 he has exhausted all other avenues of relief and only if the defendant owes him a clear 25 nondiscretionary duty.”). Plaintiffs do not identify any source of law that mandates that decisions 26 be issued within a certain period of time, and the decisions on individual waiver applications are 27 inherently discretionary. See 82 Fed. Reg. at 45168 (“a consular officer, or the Commissioner, 1 United States Customs and Border Protection (CBP), or the Commissioners’ designee, as 2 appropriate, may, in their discretion, grant waivers on a case-by-case basis”). 3 II. SUMMARY JUDGMENT 4 The government’s motions for summary judgment are denied. The government relies on 5 an “administrative record” to “show[] that defendants have applied the waiver provision in an 6 orderly way.” Dkt. No. 98 (Emami) at 11. But this does not account for the Accardi claims, and 7 “there is no ‘administrative record’ when the essence of the claim is that the government has failed 8 to act in accordance with its own rules and regulations.” Dkt. No. 122 (Emami) at 2. In addition, 9 the multiple discovery dispute letters that have been filed in these cases underscore the degree to 10 which the parties disagree about the material facts and what the “administrative record” might 11 properly contain. These factual disputes preclude summary judgment at this time. See Federal 12 Trade Commission v. D-Link Systems, Inc., No. 17-cv-00039-JD, 2018 WL 6040192 (N.D. Cal. 13 Nov. 5, 2018). It is also doubtful that plaintiffs have had a full and fair opportunity to take 14 discovery from defendants and test the evidence the government has presented as the 15 administrative record. 16 CONCLUSION 17 In the Pars case, defendants’ motion to dismiss is denied as to plaintiffs’ APA claim and 18 Accardi claim, but granted as to the Fifth Amendment claim. The summary judgment motion is 19 denied without prejudice. 20 In the Emami case, defendants’ motion to dismiss is denied for plaintiffs’ APA claim, but 21 granted for plaintiffs’ Fifth Amendment Due Process and Equal Protection claims, and the 22 mandamus claim. Defendants’ summary judgment motion is denied without prejudice. 23 On this record, the Court declines to provide yet another round of pleading amendments to 24 either set of plaintiffs. The Emami plaintiffs have had multiple opportunities to amend, in which 25 case the Court’s discretion to deny further amendment is especially broad. See Chodos v. West 26 // 27 // 1 Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002). So too for the Pars plaintiffs, given the 2 || procedural context of these closely related cases. 3 IT IS SO ORDERED. 4 || Dated: June 5, 2020 5 6 JAMES MONATO 7 United ftates District Judge 8 9 10 11 a 12 41 15 a 16 («17 Z 18 19 20 21 22 23 24 25 26 27 28