Opinion
CAUSE NO. EP-21-CV-53-KC
2021-10-25
Jaime JARABA and Noemi Mahinay, Plaintiffs, v. Antony J. BLINKEN, Secretary of the Department of State ; and Monty Wilkinson, Acting U.S. Attorney General, Defendants.
Jeffrey Dean Joseph, Pro Hac Vice, Joseph & Hall, P.C., Aurora, CO, for Plaintiffs. Lacy L. McAndrew, U.S. Attorney's Office, San Antonio, TX, Natashia Denise Hines, U.S. Attorney's Office, Western District of Texas, El Paso, TX, for Defendants.
Jeffrey Dean Joseph, Pro Hac Vice, Joseph & Hall, P.C., Aurora, CO, for Plaintiffs.
Lacy L. McAndrew, U.S. Attorney's Office, San Antonio, TX, Natashia Denise Hines, U.S. Attorney's Office, Western District of Texas, El Paso, TX, for Defendants.
ORDER
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE
On this day, the Court considered Defendants' Motion to Dismiss. ECF No. 4. For the reasons set forth below, the Motion is GRANTED in part and DENIED in part, and Plaintiffs are GRANTED leave to amend their Complaint, ECF No. 2, in a manner not inconsistent with this Order.
I. BACKGROUND
On January 24, 2020, Plaintiff Jaime Jaraba filed an I-129F petition for his fiancée, Plaintiff Noemi Mahinay, to receive a K-1 visa, which would allow her to leave her home in the Philippines and join him in the United States. Compl. ¶¶ 19–20. A K-1 visa permits a foreign fiancé(e) to enter the United States as a nonimmigrant; if the citizen sponsor and visa recipient validly marry each other within ninety days of the fiancé(e)'s entry, the foreign fiancé(e) may apply for lawful permanent residency. Compl. ¶ 12; Compl. Ex. C. U.S. Citizenship and Immigration Services ("USCIS"), a branch of the Department of Homeland Security ("DHS"), approved Mr. Jaraba's petition on May 5, 2020. Compl. ¶¶ 13, 20. However, this approval is only the first step in the process of issuing a K-1 visa. After USCIS approves a visa petition, it transfers the case to the National Visa Center ("NVC"), a branch of the Department of State ("State Department"), which then generates a case number for the application. Compl. ¶ 13; Compl. Ex. C. Next, the applicant schedules an interview with the relevant consulate or embassy, and the NVC transfers the application to that posting. Compl. Ex. C; Mot. Dismiss 2. Finally, the applicant undergoes the interview, and a consular officer either grants or denies the visa. See Nonimmigrant Visa for a Fiancé(e) (K-1) , U.S. Dep't of State—Bureau of Consular Affs., https://travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/nonimmigrant-visa-for-a-fiance-k-1.html (last accessed Oct. 18, 2021).
Even though Mr. Jaraba's petition on behalf of Ms. Mahinay has been approved for well over a year, it remains at the NVC. Compl. ¶ 21. The U.S. Embassy in Manila, Philippines ("Manila Embassy"), where Ms. Mahinay's application must be executed, has not yet scheduled her interview, so the NVC cannot transfer her case. Compl. ¶ 22–23. The apparent reason for this delay is, of course, the ongoing COVID-19 pandemic, which has reduced the Manila Embassy's capacity to process visa applications. Compl. ¶¶ 25–26; Compl. Ex. D ("Communications Log"); Mot. Dismiss 3–4. While the reason for the delayed processing is self-evident, Plaintiffs believe that the State Department and Manila Embassy have not responded adequately to the challenges posed by the pandemic. They claim that the failure to process their application constitutes unreasonable delay under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 555, 702, and 706(1). Compl. ¶¶ 40–49. They filed suit against Defendants Antony J. Blinken, Secretary of the Department of State, and Monty Wilkinson, then-Acting U.S. Attorney General, asking the Court to grant them declaratory and injunctive relief under the APA and to issue a writ of mandamus under the Mandamus Act, 28 U.S.C. § 1361, forcing Defendants to adjudicate their visa application. Compl. pp. 12–13.
In response, Defendants have moved to dismiss Plaintiffs' claims under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim on which relief can be granted. Mot. Dismiss 1. They have also moved to dismiss the Attorney General as an improper defendant. Mot. Dismiss 20.
II. DISCUSSION
A. Standards
1. Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction
Federal courts are courts of limited jurisdiction. Exxon Mobil Corp. v. Allapattah Servs. , 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) ; People's Nat'l Bank v. Off. of the Comptroller of the Currency of the U.S. , 362 F.3d 333, 336 (5th Cir. 2004). Without jurisdiction conferred by statute or the Constitution, federal courts lack the power to adjudicate claims. Exxon Mobil , 545 U.S. at 552, 125 S.Ct. 2611 ; People's Nat'l Bank , 362 F.3d at 336. A party may challenge a district court's subject matter jurisdiction by filing a motion to dismiss pursuant to Rule 12(b)(1). Fed. R. Civ. P. 12(b)(1).
A federal court must consider a motion to dismiss pursuant to Rule 12(b)(1) before any other challenge because a court must have subject matter jurisdiction before determining the validity of a claim. Moran v. Kingdom of Saudi Arabia , 27 F.3d 169, 172 (5th Cir. 1994). The party asserting jurisdiction constantly bears the burden of proof that the jurisdiction does in fact exist. Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). Where the motion to dismiss is based on the complaint alone, the court must decide whether the allegations in the complaint sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger , 644 F.2d 521, 523 (5th Cir. 1981).
2. Rule 12(b)(6) motion to dismiss for failure to state a claim
A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff. Calhoun v. Hargrove , 312 F.3d 730, 733 (5th Cir. 2002) ; Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Colony Ins. Co. v. Peachtree Constr., Ltd. , 647 F.3d 248, 252 (5th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
"[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation and internal quotation marks omitted); Colony Ins. Co. , 647 F.3d at 252. Ultimately, the "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Nevertheless, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ " Id. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).
When considering a 12(b)(6) motion, a court may not look beyond the allegations in the complaint. Roebuck v. Dothan Sec., Inc. , 515 F. App'x 275, 280 (5th Cir. 2013) ; see also Herrmann Holdings Ltd. v. Lucent Techs., Inc. , 302 F.3d 552, 565 (5th Cir. 2002) (refusing to consider facts asserted in plaintiffs' briefs on a 12(b)(6) motion to dismiss); Causey v. Sewell Cadillac-Chevrolet, Inc. , 394 F.3d 285, 288 (5th Cir. 2004) (explaining that a court converts a motion to dismiss into a motion for summary judgment if it considers materials outside of the pleadings). "[I]t is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss." Morgan Distrib. Co. v. Unidynamic Corp. , 868 F.2d 992, 995 (8th Cir. 1989) (quoting Car Carriers, Inc. v. Ford Motor Co. , 745 F.2d 1101, 1107 (7th Cir. 1984) ); accord. Roebuck , 515 F. App'x at 280. However, where a court finds a complaint "insufficiently descriptive" to support a plaintiff's claim, it may grant the plaintiff leave to amend, even when the party has not submitted a motion requesting that leave. Robbins v. XTO Energy, Inc. , No. 3:16-CV-0793-S, 2018 WL 3130605, at *4 (N.D. Tex. June 26, 2018) ; see also Flores v. Act Event Servs., Inc. , 55 F. Supp. 3d 928, 940–41 (N.D. Tex. 2014) (granting leave to amend sua sponte). Rule 15(a)(2) directs that courts should "freely give leave" to amend pleadings "when justice so requires." Fed. R. Civ. P. 15(a)(2). Leave to amend is generally proper so long as there is no undue delay, bad faith, prior repeated failures to cure deficiencies, undue prejudice to the opposing party, or futility of amendment. Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
B. Analysis
Plaintiffs' allegations have shifted significantly from their Complaint to their Response in Opposition to Defendants' Motion to Dismiss ("Plaintiffs' Response Brief"), ECF No. 5, but the crux of their claim is that the State Department generally and the Manila Embassy specifically have failed to process K-1 visa applications at a reasonable pace and unlawfully deprioritized fiancé(e) visas relative to other kinds of visas, with the result that their application has been unreasonably delayed. See Compl. ¶¶ 26–29, 45–49; Commc'ns Log. Defendants have moved to dismiss their claims for lack of subject matter jurisdiction and for failure to state a claim. Mot. Dismiss 1. With respect to subject matter jurisdiction, Defendants argue that the Court cannot properly exercise jurisdiction pursuant to the APA, that the doctrine of consular nonreviewability bars any review of Plaintiffs' claims, and that the APA bars the Court from exercising jurisdiction pursuant to the Mandamus Act. Mot. Dismiss 5 n. 11, 6. With respect to whether Plaintiffs have stated a claim, Defendants argue that, even if the Court may exercise jurisdiction, Plaintiffs have failed to plead that the adjudication of their K-1 visa petition has been unreasonably delayed, and so the Court has no grounds on which to grant them relief. Mot. Dismiss 5.
1. Subject matter jurisdiction
Defendants challenge the Court's jurisdiction on three grounds: first, that a court can only assert jurisdiction over an APA claim for unreasonable delay claim upon finding that the delay is, in fact, unreasonable; second, that review of the speed at which visas are granted is barred by the doctrine of consular nonreviewability; and third, that the availability of relief under the APA bars jurisdiction under the Mandamus Act. Mot. Dismiss 5 n.11, 6. The Court finds it proper to exercise jurisdiction over Plaintiff's APA claims, but agrees with Defendants that it does not have jurisdiction to hear those same claims under the Mandamus Act.
a. Jurisdiction under the APA
First, Defendants argue that Plaintiffs have failed to allege facts that would permit the Court to exercise jurisdiction pursuant to the APA. Mot. Dismiss 16. The APA entitles a person adversely affected by agency action or inaction to judicial review, 5 U.S.C. § 702, and authorizes a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed," id. § 706(1). An action may be brought directly against the United States, or against officers in their official capacity. Id. § 702. Although the APA does not, by itself, confer federal court jurisdiction, Califano v. Sanders , 430 U.S. 99, 105–06, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), federal courts may exercise jurisdiction over APA claims pursuant to 28 U.S.C. § 1331, which grants courts jurisdiction to hear cases "arising under" federal law. See Stockman v. FEC , 138 F.3d 144, 151 n.13 (5th Cir. 1998) ("If section 702 of the APA creates a cause of action for [Plaintiff's] unreasonable delay claim, jurisdiction exists under the general federal question statute, not the APA."); Barrios Garcia v. U.S. Dep't of Homeland Sec. , 14 F.4th 462, 472 (6th Cir. 2021) ("[F]ederal courts' subject-matter jurisdiction in APA cases is bestowed by 28 U.S.C. § 1331, the federal-question jurisdiction statute."). However, courts may not review an agency action if a statute precludes judicial review or if the action is committed to agency discretion by law. 5 U.S.C. § 701(a). As such, "a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness All. , 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Still, courts have "long applied a strong presumption favoring judicial review of administrative action." Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv. , ––– U.S. ––––, 139 S. Ct. 361, 370, 202 L.Ed.2d 269 (2018) (quoting Mach Mining, LLC v. EEOC , 575 U.S. 480, 489, 135 S.Ct. 1645, 191 L.Ed.2d 607 (2015) ).
Defendants contend that the Court must engage with the merits of Plaintiffs' unreasonable delay claim at the jurisdictional phase because, "[i]f the plaintiffs have not shown any unreasonable delay under 5 U.S.C. § 702, then they have not suffered a legal wrong for which the law waives sovereign immunity, and the court lacks jurisdiction." Mot. Dismiss 6 (citing Chuttani v. U.S. Citizenship & Immigr. Servs. , No. 3:19-CV-02955-X, 2020 WL 7225995, at *2 (N.D. Tex. Dec. 8, 2020), appeal docketed , No. 21-10318 (5th Cir. Mar. 31, 2021)). A handful of courts have held that, without a preliminary finding of unreasonable delay, the timing of agency action is a matter of unreviewable discretion. See id. at *2 ("Strange as it is, then, the Court must therefore engage with the merits of the plaintiffs' claims at the jurisdictional stage. And because the plaintiffs have not shown an unreasonable delay in processing their visa applications, the Court lacks subject-matter jurisdiction."); see also Lara Santiago v. Mayorkas , No. 1:20-cv-5194-MLB, 554 F.Supp.3d 1340, 1346-47 (N.D. Ga. Aug. 13, 2021) (collecting cases). Other courts, however, have held that jurisdiction is proper when a plaintiff has a clear right to have an application adjudicated and the government has a nondiscretionary duty to act on that application. See, e.g., Alsharqawi v. Gonzalez , No. 3:06-CV-1165-N, 2007 WL 1346667, at *3 (N.D. Tex. Mar. 14, 2007) ; Barrios Garcia , 14 F.4th at 484–85.
The Court agrees that it may exercise jurisdiction without needing to assess the merits of Plaintiffs' APA claim. The government has a nondiscretionary duty to adjudicate visa applications in a timely manner. See Lara Santiago , 554 F.Supp.3d at 1348 ("Because USCIS must adjudicate U-Visa petitions, it follows that they must do so within a reasonable amount of time. Were it otherwise, USCIS could hold U-Visa petitions in abeyance indefinitely, without providing any reasoned basis for doing so ...."); Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the U.S. v. Kerry , 168 F. Supp. 3d 268, 290 (D.D.C. 2016) ("[T]he duty to adjudicate Plaintiffs' applications within a reasonable period ... is nondiscretionary."). This nondiscretionary duty grants the Court jurisdiction to review claims that such adjudication has been unreasonably delayed. See Ahmadi v. Chertoff , 522 F. Supp. 2d 816, 818 (N.D. Tex. 2007) ("[T]he APA's command that an agency process matters within a reasonable time, combined with 28 U.S.C. § 1331, creates a presumption of federal question jurisdiction."); M.J.L. v. McAleenan , 420 F. Supp. 3d 588, 597 (W.D. Tex. 2019) ("[T]he USCIS has a nondiscretionary duty to adjudicate U Visas within a reasonable time, and therefore the Court has jurisdiction under the APA to review Plaintiffs' APA claim that the USCIS failed to adjudicate Plaintiffs' U Visas ‘within a reasonable time.’ "), R. & R. adopted by 2020 WL 10056215 (W.D. Tex. Jan. 24, 2020). Whether Plaintiffs have successfully stated a claim for unreasonable delay is properly addressed under 12(b)(6), not 12(b)(1). See Lara Santiago , 554 F.Supp.3d at 1349-50 ; M.J.L. , 420 F. Supp. 3d at 597.
Defendants point out that the State Department is currently facing thousands of unreasonable delay claims for the backlog of visa applications arising from the COVID-19 pandemic. Mot. Dismiss 15 n.19. The Court notes that a number of these claims have been dismissed since the beginning of 2021—virtually all on 12(b)(6) grounds, not 12(b)(1) grounds. See Primeaux v. U.S. Dep't of Homeland Sec. , No. 21-480 (FYP), 2021 WL 4940938, at *4 (D.D.C. Oct. 22, 2021) Brzezinski v. U.S. Dep't of Homeland Sec. , No. 21-376 (RC), 2021 WL 4191958, at *6 (D.D.C. Sept. 15, 2021) ; Schwartz v. U.S. Dep't of Homeland Sec. , No. 21-378 (JEB), 2021 WL 4133618, at *4 (D.D.C. Sept. 10, 2021) ; Milligan v. Blinken , No. 20-2631 (JEB), 2021 WL 3931880, at *7 (D.D.C. Sept. 2, 2021) ("Milligan II "); El Centro Reg'l Med. Ctr. v. Blinken , No. 3:21-cv-00361-DMS-BDD, 2021 WL 3141205, at *4–5 (S.D. Cal. July 26, 2021) ; Dastagir v. Blinken , No. 1:20-cv-02286 (TNM), 2021 WL 2894645, at *6–7 (D.D.C. July 9, 2021) ; Liu v. Blinken , No. 21-629 (TJK), 544 F.Supp.3d 1, 14-15 (D.D.C. June 18, 2021) ; Shen v. Pompeo , No. 20-1263 (ABJ), 2021 WL 1246025, at *9 (D.D.C. Mar. 24, 2021); see also Kurakula v. Renaud , No. 4:20CV3131, 2021 WL 308189, at *5 (D. Neb. Jan. 29, 2021) (denying preliminary injunction on the merits); Tate v. Pompeo , 513 F. Supp. 3d 132, 146–51 (D.D.C. 2021) (same); Mohammad v. Blinken , No. 1:20-cv-03696 (TNM), 548 F.Supp.3d 159, 169-70 (D.D.C. July 8, 2021) (granting summary judgment for defendants on the merits). But see Canavero v. Wolf , No. 1:20-CV-3553-SCJ, 540 F.Supp.3d 1235, 1241-42 (N.D. Ga. May 20, 2021) (holding that plaintiff's unreasonable delay claims for U-visa waitlist eligibility were categorically unreviewable); Parcharne v. Dep't of Homeland Sec. , No. 1:21-CV-115-SA-DAS, 2021 WL 4497481, at *3 n.5 (N.D. Miss. Sept. 30, 2021) (noting that "an assessment of the merits" of an unreasonable delay claim "is essentially a determination as to jurisdiction" but concluding that "this is essentially a distinction without a difference").
b. Consular nonreviewability
Second, Defendants contend that jurisdiction is barred by the doctrine of consular nonreviewability. Mot. Dismiss 5 n.11; Defs.' Reply 8–10, ECF No. 6. The doctrine of consular nonreviewability has its basis in Congress's plenary power "to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country." Kleindienst v. Mandel , 408 U.S. 753, 766, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quoting Lem Moon Sing v. United States , 158 U.S. 538, 547, 15 S.Ct. 967, 39 L.Ed. 1082 (1895) ); see also Galvan v. Press , 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954) ("[T]hat the formulation of [policies pertaining to the entry of aliens and their right to remain here] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government."). Accordingly, "the denial of visas to aliens is not subject to review by the federal courts." Centeno v. Shultz , 817 F.2d 1212, 1213 (5th Cir. 1987) (citing Mandel , 408 U.S. at 766, 92 S.Ct. 2576 ).
Most courts have held that this limitation on judicial review only applies to a consul's decision to either grant or deny a visa application. See, e.g., Nine Iraqi Allies , 168 F. Supp. 3d at 290 ("[T]he doctrine of consular nonreviewability is not triggered until a consular officer has made a decision with respect to a particular visa application."); P.K. v. Tillerson , 302 F. Supp. 3d 1, 11 (D.D.C. 2017) ("[T]he doctrine of consular non-reviewability does not apply where the government has not made a final visa decision."); Ali v. Rice , No. H-07-1868, 2008 WL 11502058, at *7 (S.D. Tex. July 21, 2008) ("[W]hile the doctrine of consular nonreviewability precludes subject matter jurisdiction over the final visa decision, the doctrine does not remove subject matter jurisdiction and allows for judicial review of the application process." (citing Chiang v. Skeirik , 529 F. Supp. 2d 166, 170 (D. Mass. 2007) )); Patel v. Reno , 134 F.3d 929, 931–32 (9th Cir. 1997) ("[W]hen the suit challenges the authority of the consul to take or fail to take an action as opposed to a decision taken within the consul's discretion, jurisdiction exists.").
Defendants encourage the Court to take a broader view of the doctrine—primarily advanced by the Second Circuit—that precludes judicial review of the entire process of visa issuance, not merely its results. Mot. Dismiss 5 n.11; Defs.' Reply 8–10; see also Al Naham v. U.S. Dep't of State , No. 14-CV-9974 (JPO), 2015 WL 3457448, at *3 (S.D.N.Y. June 1, 2015) (reasoning that Second Circuit precedent prevented the court from compelling consular officials to adjudicate a visa application) (citing, inter alia, Wan Shih Hsieh v. Kiley , 569 F.2d 1179, 1181 (2d Cir. 1978) ). The Court declines Defendants' invitation. The Fifth Circuit has never taken such a sweeping position. Ali , 2008 WL 11502058, at *7 (describing how the only case in the Fifth Circuit to take the broad view relies only on a case involving a visa denial and "includes little discussion of the reasons for expanding the doctrine beyond cases involving final adjudication" (discussing Kummer v. Shultz , 578 F. Supp. 341, 342 (N.D. Tex. 1984) )). The doctrine of consular nonreviewability is a judicial creation; the Court will not, in the absence of clear precedent, extend it to the process of visa issuance when Congress has indicated in sections 702 and 706(1) of the APA that courts should have jurisdiction to review claims of unreasonable delay. See Ali , 2008 WL 11502058, at *7 ("Without clearer precedent establishing that the doctrine of consular nonreviewability also applies to preclude subject matter jurisdiction over a claim based on inaction during the visa issuance procedure, this Court declines to extend the doctrine in this way.").
c. Jurisdiction under the Mandamus Act
Third, Defendants argue the Court lacks jurisdiction to grant mandamus relief. Mot. Dismiss 16. A writ of mandamus is only available if a plaintiff makes three showings: first, that the plaintiff has clear right to the relief, second, that the defendant has a clear duty to perform the act in question, and third, that "no other adequate remedy is available." Newsome v. EEOC , 301 F.3d 227, 231 (5th Cir. 2002) (citations omitted). Even where these requirements are met, mandamus is considered an extraordinary remedy, and a district court should only choose to exercise jurisdiction as a matter of "sound judicial discretion." Mustafa v. Pasquerell , No. SA-05-CA-658-XR, 2006 WL 488399, at *4 (W.D. Tex. Jan. 10, 2006) (quoting Newsome , 301 F.3d at 231 ).
Mandamus relief is not available to Plaintiffs because it would be duplicative of their cause of action under the APA. See Sawan v. Chertoff , 589 F. Supp. 2d 817, 826 (S.D. Tex. 2008) ("The APA provides a remedy for unlawfully delayed agency action; mandamus is not necessary for relief."). This makes little practical difference—Plaintiffs' APA claim "is essentially in the nature of mandamus relief"—but as a formal matter, the Court is barred from exercising jurisdiction under the Mandamus Act. Ahmadi v. Chertoff , 522 F. Supp. 2d 816, 818 n.3 (N.D. Tex. 2007) (quoting Mt. Emmons Mining Co. v. Babbitt , 117 F.3d 1167, 1170 (10th Cir. 1997) ). 2. Failure to state a claim
Defendants also argue that the facts alleged by Plaintiffs fail to state a claim that the adjudication of their visa application has been unreasonably delayed under the APA. Mot. Dismiss 5. The Court's ability to assess this argument is complicated by inconsistencies in the parties' filings: Defendants' arguments in their Motion to Dismiss do not fully respond to the allegations in the Complaint, while Plaintiffs' allegations shift significantly from their Complaint to their Response Brief. Originally, Mr. Jaraba and Ms. Mahinay's claim hinged on the allegation that State Department policy was unlawfully deprioritizing K-1 fiancé(e) visas vis-à-vis other immediate relative visas. Compl. ¶ 33. On March 20, 2020, the State Department ordered all embassies and consulates to suspend routine visa services and process only "emergency" and "mission-critical" visa applications. Compl. ¶ 25. Which visas were considered "mission-critical" was left to the discretion of consular leadership, but official guidance later listed spousal visas as "mission-critical" while failing to give fiancé(e) visas the same designation. Compl. ¶¶ 25–26. Plaintiffs alleged that it was arbitrary and capricious for the State Department to prioritize spousal visas over fiancée visas, since Congress arguably intended for K-1 applicants to be treated like close family members—an intent reflected in State Department regulations. Compl. ¶¶ 15–17; see also Matter of Sesay , 25 I&N Dec. 431, 438–39 (BIA 2011) ("As originally envisioned, fiance(e) visa holders were recognized as the functional equivalents of immediate relatives for purposes of immigrant visa eligibility and availability."); 9 FAM 502.7-3(C)(4)(b) (directing consular officials to interview a K-1 visa applicant "as if the applicant were applying for an immigrant visa in the immediate relative category"). They argued that this comparably unfavorable treatment unreasonably delayed their application, and so the Court should order the Manila Embassy to adjudicate their application immediately. Compl. ¶¶ 46–49, p. 12.
Defendants primarily present their arguments for why Plaintiffs have failed to allege unreasonable delay under their subject matter jurisdiction analysis, but the same arguments apply to their 12(b)(6) analysis. See Mot. Dismiss 1 ("Even if judicial review were available under the APA, these same facts demonstrate that Plaintiffs fail to state a claim under the APA.").
Plaintiffs describe the State Department's Foreign Affairs Manual ("FAM") as "the authoritative source for the Department of State's organization structures, policies, and procedures." Compl. ¶ 16 n.3.
However, the State Department's classification scheme has changed since Plaintiffs filed their Complaint in March 2021. The agency has abandoned the "mission-critical" label and now places visa applications into four tiers, with those in the first tier given the highest priority. Mot. Dismiss 12; see also Immigrant Visa Prioritization , U.S. Dep't of State—Bureau of Consular Affs., https://travel.state.gov/content/travel/en/News/visas-news/immigrant-visa-prioritization.html (last updated Sept. 13, 2021) ("Immigrant Visa Prioritization "). K-1 fiancée visas are considered a "Tier Two" priority, alongside almost all other immediate relative visas. Immigrant Visa Prioritization. Plaintiffs' allegations have therefore shifted in their Response to the Motion to Dismiss: they now suggest that the new four-tier prioritization scheme violates the APA, that the State Department has acted improperly by failing to reasonably adapt to the pandemic, and that the Manila Embassy, in particular, is functioning as an "island" with its "own system of prioritization." Pls.' Resp. Br. 7–8, 10, 15–16.
But Plaintiffs' new arguments are not included in the Complaint. The Court may not consider allegations outside of the pleadings on a motion to dismiss, and Plaintiffs' Response Brief cannot, on its own, amend the contents of those pleadings. See Roebuck , 515 F. App'x at 280 ; Morgan Distrib. Co. , 868 F.2d at 995. As such, the Court addresses only the allegations in the Complaint on Defendants' Motion to Dismiss.
a. Applicability of the TRAC factors
As a threshold matter, the parties dispute whether the Court should analyze the issue of unreasonable delay through the lens of the factors set out by the D.C. Circuit in Telecommunications Research & Action Center v. FCC , 750 F.2d 70 (D.C. Cir. 1984) (" TRAC factors"). In jurisdictions that rely on them, the following six factors help define when a delay is "so egregious" that judicial relief is necessary: 1) whether the time the agency takes to reach a decision is governed by a "rule of reason"; 2) whether Congress has provided a timetable or other indication of the appropriate speed for the action; 3) whether the delay affects human health and welfare versus economic interests; 4) the effect of expediting the action in question on agency actions of higher or competing priority; 5) the nature and extent of the interests prejudiced by the delay; and 6) whether there is any impropriety behind the delay, although a finding of impropriety is not required. Id. at 79–80.
Plaintiffs maintain that the TRAC factors are binding on the Court, or are at the very least persuasive authority, while Defendants argue that the factors are nonbinding and should be ignored. Compare Pls.' Resp. Br. 5–6 with Mot. Dismiss 7 n.12. Although the factors are not clearly binding, the Court considers them a useful framework for analyzing the relevant considerations when the claims cannot be easily dismissed on other grounds. See Gonzalez v. Cuccinelli , 985 F.3d 357, 375 (4th Cir. 2021) (observing that "most lower courts" apply the factors, which "offer helpful guidance in this inquiry, even if they do not define the entire field").
The Court notes that courts have divided on whether the TRAC factors are appropriate to consider on a motion to dismiss. See Mondragon Tinoco v. Mayorkas , No. 1:20-cv-4787-MLB, 2021 WL 3603373, at *10 (N.D. Ga. Aug. 13, 2021) (collecting cases and concluding that it is "premature to address these factors at the motion to dismiss stage"). Since the parties do not raise the issue, the Court assumes that the factors can apply before discovery has been granted.
b. The "mission-critical" system of classification
The central allegation in Plaintiffs' Complaint was that the "mission-critical" system of classification unreasonably delayed their application. Compl. ¶¶ 30, 33. They argued, in essence, that it was unlawful for the State Department to prioritize spousal visas more highly than fiancé(e) visas, and so there was no rule of reason behind their ongoing delay. Compl. ¶¶ 28, 30, 33. Thus, the State Department policy failed under the first TRAC factor, which Plaintiffs present as the "most important" factor. See Pls.' Resp. Br. 6 (quoting In re Core Commc'ns, Inc. , 531 F.3d 849, 855 (D.C. Cir. 2008) ).
In their Motion to Dismiss, Defendants do not respond to Plaintiffs' core legal argument that the State Department is required to give spousal visa applicants and fiancé(e) visa applicants equal prioritization; the words "mission-critical" never even appear in the Motion. The Motion was filed after the State Department had issued its new four-tier system, and Defendants only argue for the reasonableness of that later scheme. See Mot. Dismiss 12 ("U.S. embassies and consulates are using a tiered approach to triage immigrant visa applications based on the category of immigrant visa as they resume and expand processing. [...] This prioritization plan instructs posts to maximize their limited resources to accommodate as many immediate relative and fiancée cases as possible ...." (citations omitted)). Some of Defendants' contentions that Plaintiffs' delay is not unreasonable apply equally to both systems of prioritization, and so their Motion is not completely unresponsive to the Complaint—but Defendants never address Plaintiffs' key allegation that it was impermissible for the State Department to treat spousal visa applicants and fiancée visa applicants differently. Defendants even appear to agree that they are required to give foreign spouses and fiancé(e)s equal, or at least similar, treatment when they defend the four-tier system on the grounds that it "relies on clear direction from Congress to prioritize immediate relative visa applicants and K-1 fiancées of U.S. Citizens." Mot. Dismiss 12; see also Defs.' Reply 3 (citing Liu v. Blinken , No. 21-629 (TJK), 544 F.Supp.3d 1, 11-13 (D.D.C. June 18, 2021) ). Nor do Defendants argue that Plaintiffs' claims based on the unequal prioritization of spousal and fiancé(e) visa applicants are now moot; they simply describe the new situation without accounting for how these new facts affect the status of Plaintiffs' claims.
The Court is only aware of one case that has addressed the unequal treatment of fiancé(e) visas and spousal visas under the "mission-critical" scheme. See Milligan v. Pompeo , 502 F. Supp. 3d 302, 318 (D.D.C. 2020) ("Milligan I "). However, the court did not reach a legal conclusion about the proper prioritization of foreign fiancées; rather, it rejected the plaintiffs' allegations that they were being deprioritized based on statistical evidence. See id. at 319. As such, it appears that no court has reached the question of whether it was appropriate for the State Department to prioritize spousal visa applicants and fiancée visa applicants differently when the "mission-critical" policy was in effect. In the absence of proper briefing, the Court declines to do so as well.
Plaintiffs, for their part, also focus on the four-tier system in their Response Brief. While they briefly mention their original allegations about the arbitrariness of the "mission-critical" scheme, see Pls.' Resp. Br. 3, their legal arguments focus entirely on the four-tier scheme, see Pls.' Resp. Br. 7–8. They suggest that their new "Tier Two" classification is unlawful first, because it contradicts official statements indicating that K-1 visa applications would be given "high priority" and second, because the classification system is not being properly implemented on the ground. Pls.' Resp. Br. 7–8. Thus, Plaintiffs seemingly accept that the State Department no longer has a formal policy of processing fiancé(e) and spousal visa applications differently—and they do not argue that they are experiencing any ongoing redressable injury from the apparently defunct "mission-critical" scheme.
Given the shifting sands of both the facts and the parties' arguments, the Court finds itself unable to rule on Defendants' 12(b)(6) motion. The Motion to Dismiss does not address a central aspect of Plaintiffs' claim, but it is unclear if Plaintiffs even believe that they have a live claim based on their original allegations. So long as amendment is appropriate, the Court believes its only option would be to grant Plaintiffs leave to amend their Complaint.
3. Amendment
Although the Court may not consider allegations contained only in Plaintiffs' Response Brief on a motion to dismiss, it may choose to construe new factual statements as a motion for leave to amend the complaint. See Allen v. Ocwen Loan Servicing, LLC , No. H-15-1672, 2015 WL 12778694, at *4 (S.D. Tex. Dec. 24, 2015) (assuming that new allegations in a response opposing a motion to dismiss may be "appropriately construed as a motion for leave to amend" (citing Law v. Ocwen Loan Servicing, LLC , 587 F. App'x 790, 796 (5th Cir. 2014) )). Leave to amend should be "freely given when justice so requires," but should not be granted if there is "any apparent or declared reason" counseling against it, "such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman , 371 U.S. at 182, 83 S.Ct. 227 (quoting Fed. R. Civ. P. 15(a) ). The Court accordingly considers the contents of Plaintiffs' Response Brief to determine whether leave to amend is appropriate under the circumstances.
The Court does not perceive any bad faith or risk of undue prejudice, and the Plaintiffs have not previously been granted leave to amend, so the primary consideration is whether amendment would be futile. Amendment is futile if the amended complaint would fail to state a claim upon which relief could be granted. Stripling v. Jordan Prod. Co., LLC , 234 F.3d 863, 873 (5th Cir. 2000). However, leave to amend should only be denied on grounds of futility if amendment would be "clearly futile." De La Garza Gutierrez v. Pompeo , 741 F. App'x 994, 1000 (5th Cir. 2018).
Plaintiffs do not identify how their suggested allegations pertain to specific potential claims for relief. However, the Court identifies three potential claims contained in Plaintiff's Response Brief: 1) that the State Department's four-tier scheme has unreasonably delayed their application, 2) that the State Department's internal policies in response to COVID-19 has unreasonably delayed their application, and 3) that the Manila Embassy's failure to properly implement the four-tier scheme has unreasonably delayed their application.
a. "Tier Two" classification
The first novel aspect of Plaintiffs' Response Brief involves the categorization of K-1 visas as a "Tier Two" priority, which they argue has unreasonably delayed their visa application. Pls.' Resp. Br. 7. The Court considers whether it would be futile for Plaintiffs to amend their Complaint to reflect these potential claims by analyzing them through the TRAC factors.
i. Factor one: rule of reason
The first TRAC factor asks whether the timing of the agency action is governed by a "rule of reason." TRAC , 750 F.2d at 80. If Congress has not supplied a deadline, "courts typically turn to case law as a guide" to determine when a delay becomes unreasonable. Sarlak v. Pompeo , No. 20-35 (BAH), 2020 WL 3082018, at *6 (D.D.C. June 10, 2020). "No bright lines have been drawn in this context [of immigration visas], but ‘[d]istrict courts have generally found that immigration delays ... between three to five years are often not unreasonable.’ " Id. (quoting Yavari v. Pompeo , No. 19-cv-02524, 2019 WL 6720995, at *8 (C.D. Cal. Oct. 10, 2019) ). However, what kind of timing is unreasonable "cannot be decided in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful," but depends "upon the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency." Mashpee Wampanoag Tribal Council, Inc. v. Norton , 336 F.3d 1094, 1102 (D.C. Cir. 2003). In their Response Brief, Plaintiffs suggest that the government is not being guided by a rule of reason because they believe that the "Tier Two" classification conflicts with public statements promising that the State Department was working to ensure that K visas would be given "high priority" and "would be among the first visas to be adjudicated." Pls.' Resp. Br. 7. Defendants retort that the Department "did not deprioritize K visas, but instead prioritized cases that presented special humanitarian hardship on their face." Defs.' Reply 3. As Defendants observe, the State Department may be required to prioritize K-1 visas, but that does not mean that their processing must be the Department's top priority. Compare Pls.' Resp. Br. 7 (objecting to the "Tier Two" classification) with Mot. Dismiss 12 (describing the four-tier prioritization system as "instruct[ing] posts to maximize their limited resources to accommodate as many immediate relative and fiancée cases as possible with a goal of at a minimum preventing the backlog from growing in these categories and hopefully reducing it."); see also Liu , 544 F.Supp.3d at 11 (holding that the State Department properly "prioritiz[ed] immediate relative visa applicants and K-1 fiancées of U.S. citizens" at the expense of non-relative applicants). Plaintiffs' interpretation of a handful of public statements from State Department officials as signaling that K-1 visa applicants would soon be moved to the front of the line, see Pls.' Resp. Br. 7, does not undermine the rationale of the four-tier system that is now in place. See Milligan v. Blinken , No. 20-2631 (JEB), 2021 WL 3931880, at *8 (D.D.C. Sept. 2, 2021) (" Milligan II ") (rejecting the argument that an agency's public announcements "should be understood to supply the granular substance of a rule of reason").
The fact that many visa applications are being similarly delayed does not, on its own, mean that the State Department's policies are reasonable. See Barrios Garcia , 14 F.4th at 488 (rejecting defendants' argument that long average wait times meant that plaintiffs' wait was necessarily reasonable because "[w]e find it unhelpful to fixate on the average snail's pace when comparing snails against snails in a snails' race"). But Plaintiffs' wait time has not yet crossed the threshold of what courts have considered unlawful under normal circumstances; the Court cannot say that the State Department's current attempt to triage applications during a pandemic via the four-tier scheme lacks a rule of reason. See Schwartz v. U.S. Dep't of Homeland Sec. , No. 21-378 (JEB), 2021 WL 4133618, at *3 (D.D.C. Sept. 10, 2021). As such, the first factor favors Defendants.
ii. Factor two: congressional guidance
The second factor asks whether Congress has supplied the content of a "rule of reason" via "a timetable or other indication of the speed at which it expects the agency to proceed." TRAC , 750 F.2d at 80. Plaintiffs urge that the State Department long ago shattered two relevant deadlines; Defendants argue that those alleged deadlines are both aspirational and inapplicable. Plaintiffs' first alleged deadline comes from 8 U.S.C. § 1571(b), which states,
It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under section 1184(c) of this title should be processed not later than 30 days after the filing of the petition.
See Compl. ¶ 34.
Defendants counter that 1) the 180-day timeline only applies to DHS, which has already adjudicated Plaintiffs' visa petition, and 2) the Fifth Circuit has interpreted the statute to mean that "180 days is merely a goal, not a mandate." Mot. Dismiss 8–9 (citing Bian v. Clinton , 605 F.3d 249, 255 (5th Cir. 2010), vacated as moot , 2010 WL 3633770 (5th Cir. Sept. 16, 2010) ). The Court is persuaded by Defendants' arguments. Although the 180-day expectation may "carry some weight" in the Court's analysis, it is not a "hard and fast rule" after which the delay becomes per se unreasonable. Parcharne v. Dep't of Homeland Sec. , No. 1:21-CV-115-SA-DAS, 2021 WL 4497481, at *6 (N.D. Miss. Sept. 30, 2021) ; see also Chuttani , 2020 WL 7225995, at *3 n.22 (holding that Bian , 605 F.3d at 255, "is still binding precedent. At the very least, it is highly persuasive").
Plaintiffs' second deadline comes from Pub. L. 106-113, § 237(a), 113 Stat. 1051 (Nov. 29, 1999): "It shall be the policy of the Department of State to process ... nonimmigrant K-1 visa applications ... within 30 days of the receipt of all necessary documents from the applicant and the Immigration and Naturalization Service." See Compl. ¶ 35. This policy is cited in the regulations in the Foreign Affairs Manual, which states that "[t]he Department expects all posts to strive to meet the 30-day requirement." 9 FAM 502.7-3(c)(2)(a)(1); see also Compl. ¶ 35. Plaintiffs concede that "this is no statutory deadline" but argue that it creates "a required policy regarding the timeline of processing visas." Pls.' Resp. Br. 9. Defendants point to two flaws in this argument. First, the timeline expressed in FAM is "merely what [the State Department] asks itself to ‘strive to meet,’ " not a deadline that Plaintiffs can use to state a claim for unreasonable delay. Mot. Dismiss 9–10 n.16 (quoting Milligan v. Pompeo , 502 F. Supp. 3d 302, 318 (D.D.C. 2020) (" Milligan I ")). Second, the thirty-day period only begins once the State Department has received all the necessary information and documentation from the applicant, including the information communicated during the in-person interview. Mot. Dismiss 9–10 n.16 (citing Milligan I , 502 F. Supp. 3d at 318 ). Since Plaintiffs have been unable to schedule their interview, the clock has not yet started running. The Court agrees with Defendants that the thirty-day timeline is not yet applicable, if it is applicable at all.
The INS has since been replaced by USCIS, operating under DHS. See 6 U.S.C. §§ 271, 291.
Additionally, the Court notes that Congress has provided no cut-off date after which Plaintiffs' application will no longer be viable. A handful of courts have recently recognized unreasonable delay claims in the context of diversity visas, which have "an absolute, unyielding deadline by which selectees must receive their visas." Gomez v. Trump , 485 F. Supp. 3d 145, 196 (D.D.C. 2020) (" Gomez I "). This deadline "manifests Congress's intent that the State Department undertake good-faith efforts to ensure that diversity visas are processed and issued before the deadline," because "[s]urely a delay that results in the permanent loss of a statutory benefit is not reasonable." Id. While the delay that Plaintiffs continue to face is without a doubt painful, Congress has not subjected their application to a similar statutory countdown.
All these considerations lead to the conclusion that the second factor does not favor either party. See Barrios Garcia , 14 F.4th at 487 ("[W]hen no statute sets a deadline for an agency action, the second TRAC factor is not relevant for an ‘unreasonably delayed’ analysis."). iii. Factors three and five: costs of delay
The third and fifth factors consider the costs of delay on the plaintiffs. Under the third factor, "[d]elays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake," and under the fifth factor, "[t]he court should ... take into account the nature and extent of the interests prejudiced by delay." TRAC , 750 F.2d at 80. The parties do not dispute that these factors favor Plaintiffs. Plaintiffs allege that they are experiencing significant mental and physical suffering as they await an interview. Compl. ¶ 37; Compl. Ex. A ("Plaintiffs' Affidavit"). Even before the pandemic struck, international travel was physically and psychologically taxing on Mr. Jaraba; the only way for Plaintiffs to be together as a couple is for Ms. Mahinay to come to this country. Pls.' Aff. It is difficult for them to communicate across timezones, via internet connections that are frequently unreliable. Pls.' Aff. Moreover, Mr. Jaraba's father has been diagnosed with a terminal lung disease, and each passing day makes it less likely that he will be able to meet the woman who hopes to marry his son. Pls.' Aff. It is clear that meaningful human interests are being negatively impacted by the slowed pace of visa processing.
While these factors certainly weigh in Plaintiffs' favor, the prejudice from delay is less severe than it could be. The differences between the K-1 visa program and diversity visa program are once again instructive. Some courts have been willing to hear unreasonable delay claims from diversity visa selectees in part because the prejudice they face from delay is uniquely "dire": under the statutory scheme, applicants who have won the diversity visa lottery "risk losing their (likely) once-in-a-lifetime opportunity to immigrate to the United States" if their visas are not adjudicated in time. Rai v. Biden , No. 21-cv-863-TSC, 2021 WL 4439074, at *11 (D.D.C. Sept. 27, 2021) (quoting Filazapovich v. Dep't of State , No. 21-cv-00943 (APM), 2021 WL 4127726, at *19 (D.D.C. Sept. 9, 2021) ). Plaintiffs are being harmed by the delay, and reasonably suggest that "the passage of time [is] further compound[ing] the suffering," Pls.' Resp. Br. 11, but they are not trapped in a now-or-never statutory countdown where these two factors might outweigh other considerations.
iv. Factor four: agency priorities
Defendants emphasize that regardless of how the Court understands the other factors, "the effect of expediting delayed action on agency activities of a higher or competing priority," TRAC , 750 F.2d at 80, should be dispositive. See Defs.' Reply 5–6. Even where all the other factors indicate that agency delay is unreasonable, courts have refused to issue judicial orders that would just put the litigants "at the head of the queue ... and produce[ ] no net gain." In re Barr Lab'ys, Inc. , 930 F.2d 72, 75 (D.C. Cir. 1991). Plaintiffs respond that this consideration does not apply because "the Department of State has never communicated to Plaintiffs that they are in any sort of line at all, nor have they provided any evidence to support their argument that a line even exists." Pls.' Resp. Br. 12. Plaintiffs' frustration that they do not know where they stand in line is understandable, but it is insufficient to support their conclusion that the line is a fiction. See Barrios Garcia , 14 F.4th at 487 (reversing dismissal of plaintiffs' cases when their complaints "adequately alleged ... many U-visa applications were filed after but decided before theirs"). As Defendants observe, Plaintiffs' own Response Brief indicates that there must be some sort of order, seeing as they complain that other kinds of visa interviews are being scheduled at higher rates than K-1 visa interviews. See Defs.' Reply 5 (citing Pls.' Resp. Br. 11–12). These other interviews are "competing priorit[ies]" that would be pushed back if the Court granted Plaintiffs' request to be pushed to the front. "[O]ther applicants in the queue undoubtedly also face personal hardships due to the State Department's delays, and there is no net gain in prioritizing Plaintiff[s] at their expense." Primeaux v. U.S. Dep't of Homeland Sec. , No. 21-480 (FYP), 2021 WL 4940938, at *3 (D.D.C. Oct. 22, 2021). The fourth factor therefore supports Defendants.
This is not to say that the mere existence of a line, or the inevitability of competing priorities, means that the fourth factor will always weigh in the government's favor. An agency's prioritization scheme may be so irrational that it stops being "a matter of reordering ‘competing priorities’ " and becomes "an abject failure to comply with statutory obligations and make rational decisions." Gomez v. Biden , No. 20-cv-01419 (APM), 2021 WL 3663535, at *19 (D.D.C. Aug. 17, 2021) ("Gomez III ") (quoting Mashpee Wampanoag , 336 F.2d at 1100 ). Plaintiffs' Response Brief does not suggest that such an "abject failure" exists at the level of State Department policy.
v. Factor six: impropriety
Although Plaintiffs say they "allege impropriety" in their Response Brief, that impropriety appears to relate to the State Department's general response to COVID-19. See Pls.' Resp. Br. 15–16. The Court cannot discern any suggested allegations of impropriety related to the Department's classifications of K-1 visa applications. As such, the final factor does not weigh in favor of either party. See Brzezinski v. U.S. Dep't of Homeland Sec. , No. 21-376 (RC), 2021 WL 4191958, at *6 (D.D.C. Sept. 15, 2021) ("In instances where a plaintiff makes no allegation of bad faith, courts often have ... chosen not to apply the sixth TRAC factor at all.").
In sum, the TRAC factors weigh in favor of Defendants on this set of Plaintiffs' suggested allegations, and the Court cannot see how a well-pleaded complaint could change that analysis. Leave to amend the Complaint to allege that the State Department's "Tier Two" classification of K-1 visas is unreasonably delaying Plaintiffs' visa application is therefore denied on the grounds of futility.
b. General COVID-19 response
Second, Plaintiffs' Response Brief suggests allegations that the State Department's general response to the pandemic has been a failure, causing unreasonable delay in processing their application. They say that the Department "stands alone as an agency absolutely paralyzed by COVID-19," and go so far as to "allege impropriety" of "either incredible ineptitude or intentionality" behind that seeming failure to adapt. Pls.' Resp. Br. 15–16. They suggest that, if Defendants were responding reasonably, they would have adopted such policies as "requiring negative COVID tests or allowing video interviews" to expedite the visa process. Pls.' Resp. Br. 15. The State Department's apparent refusal to implement alternative measures to safely conduct visa interviews has, according to Plaintiffs, created a "crisis level backlog" and unreasonably delayed their application. Pls.' Resp. Br. 15–16.
The Court need not consider the TRAC factors to conclude that there is no conceivable claim for relief behind these statements, and so any amendment to the Complaint would be obviously futile. In the absence of congressional direction, how an agency chooses to run its internal affairs is a quintessential matter of discretion. See People's Couns. of D.C. v. Public Serv. Com. of D.C. , 474 A.2d 1274, 1288 (D.C. Cir. 1984) ("Because a court generally will be ill-equipped to second guess agency judgment on matters of internal agency management, judicial review will be of little value."); Wyoming v. U.S. Dep't of the Interior , No. 14-CV-0248, 2015 WL 12916334, at *4 (D. Wyo. Apr. 21, 2015) (cautioning against "judges issuing directives to federal agencies which result in either undue judicial interference with lawful discretion, judicial entanglement in abstract policy disagreements, or the interjection of a judge into day-to-day agency management in the context of broad statutory mandates" (citing S. Utah Wilderness All. , 542 U.S. 55, 124 S.Ct. 2373 )). Agency officials are infinitely better positioned than the Court to make complex decisions about technology, health, and safety in the midst of a pandemic—and Plaintiffs do not cite any authority that would permit the Court to reach so deeply into the State Department's daily workings. See Liu , 544 F.Supp.3d at 13 ("Defendants, not this Court, are best positioned to understand the continued effect of the pandemic on their operations, the entire backlog of visa applications, [and] the competing demands on involved personnel ...."); Tate v. Pompeo , 513 F. Supp. 3d 132, 150–51 (D.D.C. 2021) (" ‘[T]he government's interests in balancing its own priorities’ and determining how to allocate scarce resources in a global pandemic outweigh plaintiffs' interests in immediate adjudication of their visas." (quoting Milligan I , 502 F. Supp. 3d at 320 )). The Court will not order the State Department to begin conducting its affairs via videoconference or any other similar measure, nor will it consider the Department's failure to implement such measures as evidence of impropriety in any other claim of unreasonable delay. Plaintiffs are therefore denied leave to amend their Complaint to allege that the State Department's general COVID-19 response is a source of unreasonable delay.
c. Manila Embassy implementation
Third, Plaintiffs' Response Brief suggests allegations against the Manila Embassy. While Plaintiffs' Complaint focuses almost entirely on State Department policies, their Response Brief suggests that there may be considerable light between official State Department directives and their implementation in Manila. They state that evidence shows that "the Embassy has developed its own system of prioritization not in line with [State Department] stated priorities" and posit that "this is a primary reason for the processing delays." Pls.' Resp. Br. 8, 10; see also Defs.' Reply 10 ("It is clear from Plaintiffs' Response that their issue is with the Embassy Manila, not the State Department as a whole ...."). Thus, even if the Department's policies are reasonable, "[a]ny attempt at creating a rule of reason was thwarted by the Embassy operating as its own island with little control from the Department of State." Pls.' Resp. Br. 10.
Turning to the TRAC factors, the Court reads Plaintiffs' Response Brief as suggesting that the Manila Embassy is undermining the State Department's rule of reason (factor one), or perhaps that the Embassy's ordering of competing priorities is unlawful (factor four). It may also insinuate some manner of impropriety (factor six)—although the Court cannot guess at the nature of such potential allegations at this stage. These considerations could conceivably shift the scales such that a well-pleaded complaint alleging unreasonable delay specifically from the Manila Embassy might survive a 12(b)(6) motion to dismiss. To be clear: the Court cannot be certain at this stage that there is a viable claim arising from these underdeveloped, suggested allegations—but "denial of leave to amend is improper where the amendment adds claims that are not clearly futile." De La Garza Gutierrez , 741 F. App'x at 1000 (emphasis added). Plaintiffs' potential claims suggesting that the Manila Embassy is ignoring State Department guidance and unreasonably delaying their application are not, at this point, "clearly futile," and so the Court will grant Plaintiffs leave to amend their Complaint to reflect how their claims have evolved since March.
The Court notes that three recent cases address allegations that the Manila Embassy has been derelict in its duty to process K-1 visa applications at a reasonable pace during the pandemic. All were dismissed for failure to state a claim. See Primeaux , 2021 WL 4940938, at *4 ; Brzezinski , 2021 WL 4191958, at *6 ; Schwartz , 2021 WL 4133618, at *4. Plaintiffs would be well advised to find a way to differentiate any amended complaint from the claims of Primeaux , Brzezinski , and Schwartz . The Court appreciates that Plaintiffs have a limited ability to access specific facts about the workings of the Manila Embassy before they are granted discovery. However, they must offer more than uninterpreted statistics and bare allegations of "an agency in chaos" if they hope to survive a future motion to dismiss. See Pls.' Resp. Br. 8. Plaintiffs may also wish to consider which parties would be the proper defendants for any amended claims. See, e.g., Gjoci v. Dep't of State , No. 1:21-cv-00294-RCL, 2021 WL 3912143, at *11 (D.D.C. Sept. 1, 2021) (refusing to consider allegations that embassies were failing to implement the latest State Department guidance when "no consulate officials [were] named in th[e] lawsuit"); Filazapovich , 2021 WL 4127726, at *15 (concluding that the Secretary of State was a proper defendant because "the challenged policies were issued on behalf of the Secretary, not at the consular level").
The Court notes Defendants' argument that an agency official's decisions about how to implement formal guidance are a matter of unreviewable discretion. Defs.' Reply 10. It could well be that the Manila Embassy's rate of processing K-1 visa applications is a reasoned, discretionary response to "local country conditions and restrictions placed on it by local authorities" after considering "all relevant factors specific to [the] consular section." Defs.' Reply 6. If Plaintiffs' application has been delayed because the Manila Embassy is making reasonable, good faith efforts to follow State Department policy and procedure in light of local conditions, then the Court cannot and will not intervene. See Gonzalez v. U.S. Dep't of Homeland Sec. , 500 F. Supp. 3d 1115, 1130–31 (E.D. Cal. 2020) (recognizing that "courts should generally defer to agencies' assessments of where their resources should be devoted" but concluding that deference does not bar review of an unreasonable delay claim).
But the Court has rejected Defendants' argument that consular nonreviewability bars judicial review of all stages of the process of visa issuance. The fact that officials have discretion to reasonably implement agency rules does not mean that they are free to apply those rules arbitrarily, let alone to ignore them altogether—and Plaintiffs' Response Brief sketches a picture of an embassy gone rogue. See McMahon v. Califano , 476 F. Supp. 978, 981 (D. Mass. 1979) (reasoning that "the appearance of some discretion on the part of the officer involved is not determinative of whether mandamus lies" because that discretion may be abused). Whether there is any substance to Plaintiffs' suggestions remains to be seen, but local officials' implementation of State Department policy does not appear to be categorically immune from judicial review. Courts have recognized unreasonable delay claims related to both formal State Department policies and officials' failures to follow those policies. Compare Gomez v. Biden , No. 20-cv-01419 (APM), 2021 WL 3663535, at *24 (D.D.C. Aug. 17, 2021) (" Gomez III ") (granting relief to diversity visa selectees after the diversity visa program was effectively suspended) with Nine Iraqi Allies , 168 F. Supp. 3d at 289, 296 (refusing to dismiss claims alleging that State Department officials failed to follow correct procedures for adjudicating visa applications after the plaintiffs' interviews). Agencies must abide by their own rules. See McMahon , 476 F. Supp. at 983 ("Suffice to say, the Secretary has a duty to abide by the regulations ...."); Andujar v. Weinberger , 69 F.R.D. 690, 693–94 (S.D.N.Y. 1976) ("A violation of a governmental agency's own regulations can be the basis for § 1361 jurisdiction."). If Plaintiffs believe they have a viable claim that consular officials have failed to do so, then the Court grants them leave to set forth those allegations in an amended complaint.
While the duplicative nature of Mandamus Act relief and APA relief strips the Court of mandamus jurisdiction, the essential similarity of the two claims means that mandamus analysis can inform the Court's APA analysis. See Alsharqawi , 2007 WL 1346667, at *3 (applying a single set of standards for "compelling agency action ... regardless of the statute from which the remedy derives").
4. Dismissal of the Attorney General
Defendants argue that the Attorney General should be dismissed from the suit as an improper defendant, and Plaintiffs do not oppose the request. Mot. Dismiss 20; Pls.' Resp. Br. 18. Former Acting U.S. Attorney General Monty Wilkinson is accordingly dismissed.
III. CONCLUSION
For the foregoing reasons, Defendants' Motion, ECF No. 4, is GRANTED in part and DENIED in part. The Motion is GRANTED as to Plaintiffs' claims under the Mandamus Act and claims against the Attorney General. Plaintiffs are GRANTED leave to amend any remaining claims in a manner not inconsistent with this order. Plaintiffs are ORDERED to file their amended Complaint or otherwise inform the Court how they wish to proceed on or before November 22, 2021 .