Najafi v. Pompeo

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 SONA NAJAFI, et al., Case No. 19-cv-05782-KAW 8 Plaintiffs, ORDER GRANTING EX PARTE 9 v. APPLICATION FOR EXPEDITED DISCOVERY 10 MICHAEL R. POMPEO, et al., Re: Dkt. No. 12 11 Defendants. [12] 13 On September 15, 2019, Plaintiffs filed the instant action against Defendants, alleging that 14 Defendants were improperly withholding adjudications of case-by-case waivers under Presidential 15 Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry 16 into the United States by Terrorists or Other Public-Safety Threats (“PP 9645”). (Compl. ¶ 1, Dkt. 17 No. 1.) PP 9645 prohibits the entry of all immigrants and certain non-immigrants for nationals of 18 Iran, Libya, Somalia, Syria, and Yemen, but provides for case-by-case waivers from the ban. 19 (Compl. ¶ 4.) Plaintiffs, however, assert that Defendants’ policies, decisions, and actions in 20 implementing PP 9645 have unreasonably delayed the adjudication of waivers. (Compl. ¶ 6.) For 21 example, Plaintiffs allege that Defendants have required approval of case-by-case waiver 22 adjudications by consular managers, visa chiefs, and consular section chiefs, and that authority for 23 such a designation is not provided for in PP 9645. (Compl. ¶¶ 8-9.) Based on these alleged 24 violations, Plaintiffs bring claims under the Administrative Procedure Act (“APA”), as well as for 25 deprivation of procedural due process. (Compl. ¶¶ 169, 176, 195.) 26 Pending before the Court is Plaintiffs’ motion for expedited discovery. (Pls.’ Mot. for 27 Discovery, Dkt. No. 12.) Plaintiffs seek to propound twenty-five interrogatories, which seek 1 national security or public safety of the United States, and whether Defendants have used a new 2 enhanced automated screening and vetting process for that individual’s PP 9645 waiver 3 adjudication.1 (See Id., Exh. A (“Proposed Interrogatories”).) On October 17, 2019, Defendants 4 filed their opposition. (Defs.’ Opp’n, Dkt. No. 20.) On October 18, 2019, Plaintiffs filed their 5 reply. (Pls.’ Reply, Dkt. No. 21.) 6 Having considered the parties’ filings and the relevant legal authority, the Court deems the 7 matter suitable for disposition without hearing pursuant to Civil Local Rule 7-1(b), and GRANTS 8 Plaintiffs’ motion for expedited discovery. 9 I. LEGAL STANDARD 10 Rule 26(d) provides that “[a] party may not seek discovery from any source before the 11 parties have conferred as required by Rule 26(f), except . . . when authorized by these rules, by 12 stipulation, or by court order.” In deciding whether to allow early discovery, courts apply a good 13 cause standard. Twitch Interactive, Inc. v. Johnston, Case No. 16-cv-3404-BLF, 2017 U.S. Dist. 14 LEXIS 44863 , at *5 (N.D. Cal. Mar. 27, 2017); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 15 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited 16 discovery, in consideration of the administration of justice, outweighs the prejudice to the 17 responding party.” Semitool, Inc., 208 F.R.D. at 276. Factors commonly considered by the courts 18 include: “(1) whether a preliminary injunction is pending; (2) the breadth of the discovery 19 requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants 20 to comply with the requests; and (5) how far in advance of the typical discovery process the 21 request was made.” Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1067 (C.D. Cal. 2009); 22 see also Apple Inc. v. Samsung Elecs. Co., Case No. 11-cv-1846-LHK, 2011 U.S. Dist. LEXIS 23 53233, at *4 (N.D. Cal. May 18, 2011). [25] 1 The enhanced automated screening and vetting process was implemented around July 2019, and is designed “to determine whether any additional review is required related to determin[ing] [26] whether the applicant has satisfied the national security and public safety waiver criterion . . . .” (Compl. ¶ 154.) The automated system is expected to “significantly increase the speed and [27] efficiency of the vetting process for both current and future waiver cases while maintaining all 1 II. DISCUSSION 2 A. Cognizable Claim 3 As an initial matter, in opposing Plaintiffs’ motion for expedited discovery, Defendants 4 argue that Plaintiffs lack a cognizable claim. (Defs.’ Opp’n at 4.) First, Defendants contend that 5 Plaintiffs cannot seek review of PP 9645 because it is a presidential action not subject to APA 6 review. (Id. at 5.) In general, “[a]s the APA does not expressly allow review of the President’s 7 actions, we must presume that his actions are not subject to its requirements.” Franklin v. 8 Massachusetts, 505 U.S. 788, 801 (1992). The Ninth Circuit, however, has found that “under 9 certain circumstances, Executive Orders, with specific statutory foundation, are treated as agency 10 action and reviewed under the [APA].” City of Carmel-by-the-Sea v. United States Dep’t of 11 Transp., 123 F.3d 1142 , 1166 (9th Cir. 1997). Thus, “an executive order or presidential 12 proclamation may also be subject to judicial review under the APA and treated as agency action 13 when the order or proclamation ‘rests upon statute.’” W. Watersheds Project v. Bureau of Land 14 Mgmt., 629 F. Supp. 2d 951, 965 (D. Ariz. 2009) (quoting Legal Aid Soc’y v. Brennan, 608 F.2d 15 1319, 1330 n.15 (9th Cir. 1979). 16 Here, PP 9645 was issued pursuant to INA § 212(f), 8 U.S.C. §1182 . See Trump v. 17 Hawaii, 138 S. Ct. 2392, 2408 (2018) (finding that PP 9645 was a lawful exercise of the discretion 18 granted by § 1182). Further, as the instant case concerns the implementation of PP 9645, rather 19 than the legality of PP 9645 itself, Defendants’ actions are reviewable under the APA. Hawaii v. 20 Trump, 878 F.3d 662, 680-81 (9th Cir. 2017) (“because these agencies have consummated their 21 implementation of the Proclamation, from which legal consequences will flow, their actions are 22 ‘final’ and therefore reviewable under the APA”), rev’d and remanded on other grounds by Trump 23 v. Hawaii, 138 S. Ct. 2392 . 24 Second, to the extent Defendants argue that PP 9645 is nonreviewable because the decision 25 to grant or deny a visa or waiver is a matter of agency discretion, Plaintiffs are not challenging the 26 waiver decisions. (Defs.’ Opp’n at 5-7; Pls.’ Reply at 1.) Indeed, a decision has not been issued 27 in these cases. Rather, Plaintiffs are challenging the implementation of the PP 9645, which is a 1 Finally, Defendants contend that Plaintiffs’ APA claim fails because it lacks plausibility. 2 (Defs.’ Opp’n at 7.) Plaintiffs argue that the delay in the adjudication of their waivers “is due to 3 State officials unlawfully usurping the consular officers’ discretion to grant or deny Proclamation 4 waivers,” whereas Defendants respond that this claim “is unsupported by the text of the 5 Proclamation, does not reflect the reality of the waiver process, and flies in the face of common 6 sense.” (Id.) Defendants also argue there is no unreasonable delay at this point. (Id. at 8-9.) 7 These are factual questions that are not appropriately decided at this juncture. 8 Accordingly, the Court cannot at this time find that Plaintiffs have no cognizable claim. 9 B. Good Cause 10 The Court finds that Plaintiffs have demonstrated good cause for expedited discovery. 11 First, there is a pending motion for a preliminary injunction. “Good cause for expedited 12 discovery is frequently found . . . in cases where the plaintiff seeks a preliminary injunction.” AF 13 Holdings LLC v. Doe, No. 2:12-cv-2207 KJM DAD, 2012 U.S. Dist. LEXIS 178961 , at *3 (E.D. 14 Cal. Dec. 17, 2012). As Plaintiffs concede, however, this factor alone does not warrant expedited 15 discovery. (See Pls.’ Mot. at 9.) 16 Second, the Court finds that the discovery requests are limited to twenty-five 17 interrogatories focused on what information is still required for Defendants to determine whether 18 each Plaintiff’s entry would pose a threat to national or public safety, as well as whether the new 19 automated screening and vetting system is being used for these Plaintiffs. 20 Third, the Court finds that Plaintiffs have demonstrated a need for the expedited discovery. 21 While Defendants suggest that such information is not relevant to establishing delay, the reason 22 for the delay is relevant to determining whether any delay is reasonable. (See Defs.’ Opp’n at 11.) 23 For example, if no further information is necessary to make a determination, then any further 24 delay may be unwarranted, particularly if it is due to the allegedly improper implementation of PP 25 9645. 26 Finally, the Court finds that Defendants will have some burden in complying with the 27 requests, but that this burden does not outweigh Plaintiffs’ need for the discovery. Defendants 1 information that they consider in the course of their security reviews. (See Defs.’ Opp’n at 14.) 2 || This will also require Defendants to map out the interagency national security investigative 3 processes, standards, and considerations that go into waiver adjudications. (/d.) Plaintiffs, 4 however, do not ask for the processes, standards, or considerations; they ask only what 5 || information is still required to make Defendants’ national security determinations. This is a far 6 || narrower, more discrete request than Defendants contend. 7 Accordingly, the Court finds that Plaintiffs have established good cause for the expedited 8 discovery requested. 9 Hl. CONCLUSION 10 For the reasons stated above, the Court GRANTS Plaintiffs’ request for expedited 11 discovery. Defendants shall provide the requested discovery within fourteen days of the date of 12 || this order. 5 13 In light of this order, if the parties require additional extensions to the briefing schedule, 14 || the parties should promptly stipulate. The Court will not grant any extension that moves the reply 3 15 deadline to less than two weeks before the hearing date. a 16 IT IS SO ORDERED. 17 || Dated: October 23, 2019 18 □□□ entice 19 United States Magistrate Judge