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Najafi v. Pompeo

United States District Court, N.D. California

October 23, 2019

SONA NAJAFI, et al., Plaintiffs,
MICHAEL R. POMPEO, et al., Defendants.



         On September 15, 2019, Plaintiffs filed the instant action against Defendants, alleging that Defendants were improperly withholding adjudications of case-by-case waivers under Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats (“PP 9645”). (Compl. ¶ 1, Dkt. No. 1.) PP 9645 prohibits the entry of all immigrants and certain non-immigrants for nationals of Iran, Libya, Somalia, Syria, and Yemen, but provides for case-by-case waivers from the ban. (Compl. ¶ 4.) Plaintiffs, however, assert that Defendants' policies, decisions, and actions in implementing PP 9645 have unreasonably delayed the adjudication of waivers. (Compl. ¶ 6.) For example, Plaintiffs allege that Defendants have required approval of case-by-case waiver adjudications by consular managers, visa chiefs, and consular section chiefs, and that authority for such a designation is not provided for in PP 9645. (Compl. ¶¶ 8-9.) Based on these alleged violations, Plaintiffs bring claims under the Administrative Procedure Act (“APA”), as well as for deprivation of procedural due process. (Compl. ¶¶ 169, 176, 195.)

         Pending before the Court is Plaintiffs' motion for expedited discovery. (Pls.' Mot. for Discovery, Dkt. No. 12.) Plaintiffs seek to propound twenty-five interrogatories, which seek information on what is still needed to determine that each individual Plaintiff is not a threat to the national security or public safety of the United States, and whether Defendants have used a new enhanced automated screening and vetting process for that individual's PP 9645 waiver adjudication.[1] (See Id., Exh. A (“Proposed Interrogatories”).) On October 17, 2019, Defendants filed their opposition. (Defs.' Opp'n, Dkt. No. 20.) On October 18, 2019, Plaintiffs filed their reply. (Pls.' Reply, Dkt. No. 21.)

         Having considered the parties' filings and the relevant legal authority, the Court deems the matter suitable for disposition without hearing pursuant to Civil Local Rule 7-1(b), and GRANTS Plaintiffs' motion for expedited discovery.


         Rule 26(d) provides that “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except . . . when authorized by these rules, by stipulation, or by court order.” In deciding whether to allow early discovery, courts apply a good cause standard. Twitch Interactive, Inc. v. Johnston, No. 16-cv-3404-BLF, 2017 U.S. Dist. LEXIS 44863, at *5 (N.D. Cal. Mar. 27, 2017); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” Semitool, Inc., 208 F.R.D. at 276. Factors commonly considered by the courts include: “(1) whether a preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants to comply with the requests; and (5) how far in advance of the typical discovery process the request was made.” Am. LegalNet, Inc. v. Davis, 673 F.Supp.2d 1063, 1067 (C.D. Cal. 2009); see also Apple Inc. v. Samsung Elecs. Co., No. 11-cv-1846-LHK, 2011 U.S. Dist. LEXIS 53233, at *4 (N.D. Cal. May 18, 2011).


         A. Cognizable Claim

         As an initial matter, in opposing Plaintiffs' motion for expedited discovery, Defendants argue that Plaintiffs lack a cognizable claim. (Defs.' Opp'n at 4.) First, Defendants contend that Plaintiffs cannot seek review of PP 9645 because it is a presidential action not subject to APA review. (Id. at 5.) In general, “[a]s the APA does not expressly allow review of the President's actions, we must presume that his actions are not subject to its requirements.” Franklin v. Massachusetts, 505 U.S. 788, 801 (1992). The Ninth Circuit, however, has found that “under certain circumstances, Executive Orders, with specific statutory foundation, are treated as agency action and reviewed under the [APA].” City of Carmel-by-the-Sea v. United States Dep't of Transp., 123 F.3d 1142, 1166 (9th Cir. 1997). Thus, “an executive order or presidential proclamation may also be subject to judicial review under the APA and treated as agency action when the order or proclamation ‘rests upon statute.'” W. Watersheds Project v. Bureau of Land Mgmt., 629 F.Supp.2d 951, 965 (D. Ariz. 2009) (quoting Legal Aid Soc'y v. Brennan, 608 F.2d 1319, 1330 n.15 (9th Cir. 1979).

         Here, PP 9645 was issued pursuant to INA § 212(f), 8 U.S.C. §1182. See Trump v. Hawaii, 138 S.Ct. 2392, 2408 (2018) (finding that PP 9645 was a lawful exercise of the discretion granted by § 1182). Further, as the instant case concerns the implementation of PP 9645, rather than the legality of PP 9645 itself, Defendants' actions are reviewable under the APA. Hawaii v. Trump, 878 F.3d 662, 680-81 (9th Cir. 2017) (“because 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”), rev'd and remanded on other grounds by Trump v. Hawaii, 138 S.Ct. 2392.

         Second, to the extent Defendants argue that PP 9645 is nonreviewable because the decision to grant or deny a visa or waiver is a matter of agency discretion, Plaintiffs are not challenging the waiver decisions. (Defs.' Opp'n at 5-7; Pls.' Reply at 1.) Indeed, a decision has not been issued in these cases. Rather, Plaintiffs are challenging the implementation of the PP 9645, which is a separate issue.

         Finally, Defendants contend that Plaintiffs' APA claim fails because it lacks plausibility. (Defs.' Opp'n at 7.) Plaintiffs argue that the delay in the adjudication of their waivers “is due to State officials unlawfully usurping the consular officers' discretion to grant or deny Proclamation waivers, ” whereas Defendants respond that this claim “is unsupported by the text of the Proclamation, does not reflect the reality of the waiver process, and flies in the face of common sense.” (Id.) Defendants also argue there is no unreasonable delay at this point. (Id. at 8-9.) These are factual questions that are not appropriately decided at this juncture.

         Accordingly, the Court cannot at this time find that Plaintiffs have no cognizable claim.

         B. ...

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