Opinion
Case No. 21-cv-01126 (APM)
2021-07-07
XIAODA LIU, et al., Plaintiffs, v. Alejandro MAYORKAS, Secretary of Homeland Security, et al., Defendants.
B. Marian Chou, Washington, DC, for Plaintiffs.
B. Marian Chou, Washington, DC, for Plaintiffs.
MEMORANDUM OPINION AND ORDER
Amit P. Mehta, United States District Court Judge
Before the court is Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 9 [hereinafter Pls.’ Mot.]. For the reasons that follow, the court denies the motion.
I.
Plaintiffs Xiaoda Liu and Rouyi Ding are Chinese citizens and residents of Washington State. Pet'n for Writ of Mandamus, ECF No. 1 [hereinafter Pet'n], at 2–3. They claim that the U.S. Citizenship and Immigration Services’ ("USCIS") adjudication of their applications for employment authorization benefits has been unreasonably delayed. See generally Pet'n. Specifically, Plaintiffs seek H-4 visas and attendant Employment Authorization Documents ("EADs"), which permit spouses of H-1B nonimmigrants to obtain temporary work authorization in the United States. See Pls.’ Mot., Statement of P. & A. in Supp. of Mot. for TRO & Prelim. Inj., ECF No. 9-1 [hereinafter Pls.’ Br.], at 7–9. Liu, whose previous work authorization expired on May 30, 2021, has had his applications pending for over seven months. Pet'n, Decl. of Xiaoda Liu, ECF No. 1-6 [hereinafter Liu Decl.], ¶¶ 3–4. Ding, whose current work authorization will expire on July 14, 2021, has had her applications pending for over five months. Pet'n, Decl. of Rouyi Ding, ECF No. 1-10 [hereinafter Ding Decl.], ¶¶ 3–4.
On April 26, 2021, Plaintiffs filed a mandamus petition, requesting relief pursuant to the Administrative Procedure Act for "agency action unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1). See Pet'n ¶¶ 44–46. Approximately a month-and-a-half later, on June 11, 2021, Plaintiffs filed the instant motion for injunctive relief. Pls.’ Mot. They assert that, without work authorizations, they and their families will suffer—or, in Liu's case, are already suffering—irreparable harm, including loss of employment, income, and benefits. Pls.’ Br. ¶¶ 63–65; see also Liu Decl. ¶¶ 17–19; Ding Decl. ¶¶ 14–17. Plaintiffs request, therefore, that the court order Defendants to provide them with EADs valid for at least the pendency of this litigation. Pls.’ Br. at 22.
Plaintiffs’ original mandamus petition included claims brought by a third Plaintiff, Jun Yan. See generally Pet'n. According to Defendants, "the two applications at issue for Yan have already been fully adjudicated by USCIS and an approval was issued for her EAD application on May 11, 2021." Mem. of P. & A. in Supp. of Defs.’ Combined Mot. to Dismiss & Opp'n to Pls.’ Mot. for TRO & Prelim. Inj., ECF No. 13, at 3 n.3 (indicating that Yan will soon be filing a voluntary dismissal of her individual claims). As a result, Plaintiffs’ motion for preliminary relief pertains only to the claims brought by Liu and Ding.
Defendants oppose Plaintiffs’ motion and further move to dismiss the entire action for failure to state a claim and improper venue. See Mem. of P. & A. in Supp. of Defs.’ Combined Mot. to Dismiss & Opp'n to Pls.’ Mot. for TRO & Prelim. Inj., ECF No. 13 [hereinafter Defs.’ Opp'n].
II.
Temporary restraining orders and preliminary injunctions are "extraordinary remed[ies] ... that should be granted only when the moving party, by a clear showing, carries the burden of persuasion." Sibley v. Obama , 810 F. Supp. 2d 309, 310 (D.D.C. 2011). "The standard for obtaining injunctive relief through either a temporary restraining order or a preliminary injunction is well established." Gomez v. Kelly , 237 F. Supp. 3d 13, 14 (D.D.C. 2017). The moving party must establish "that four factors, taken together, warrant relief: [(1)] likely success on the merits, [(2)] likely irreparable harm in the absence of preliminary relief, [(3)] a balance of the equities in its favor, and [(4)] accord with the public interest." League of Women Voters v. Newby , 838 F.3d 1, 6 (D.C. Cir. 2016) (internal quotation marks omitted).
III.
Because Plaintiffs have failed to demonstrate that they are likely to succeed on the merits of their claim under section 706(1), and because their showing of irreparable harm falls short of "extraordinary," the court must deny their motion. See Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; Sampson v. Murray , 415 U.S. 61, 92 n.68, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (holding that a finding of irreparable harm for loss of employment is limited to "genuinely extraordinary situation[s]").
A.
On the likelihood of success on the merits, the parties agree that Plaintiffs’ section 706(1) claim is governed by the six-factor test established in Telecommunications Research & Action Center v. F.C.C. , 750 F.2d 70 (D.C. Cir. 1984) (" TRAC "). See Pls.’ Br. ¶ 45; Defs.’ Opp'n at 16. Under that test, the court must balance the following:
(1) the time agencies take to make decisions must be governed by a "rule of reason";
(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;
(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;
(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and
(6) the court need not find any impropriety lurking behind agency lassitude in order to hold that the agency action is "unreasonably delayed."
The fourth factor—the effect of expediting delayed action on agency activities of a higher or competing priority—is the most significant one in this case and, arguably, is dispositive. See Mashpee Wampanoag Tribal Council, Inc. v. Norton , 336 F.3d 1094, 1100 (D.C. Cir. 2003) (emphasizing "the importance of ‘competing priorities’ in assessing the reasonableness of an administrative delay"). In In re Barr Laboratories, Inc. , for example, the D.C. Circuit refused to grant relief—even though all the other TRAC factors favored it—when "a judicial order putting [the movant] at the head of the queue [would have] simply move[d] all others back one space and [would have] produce[d] no net gain." 930 F.2d 72, 75 (D.C. Cir. 1991). Here, Plaintiffs’ requested relief suffers from the same defect. Compelling USCIS to issue valid H-4 visas and attendant EADs to Plaintiffs, even if only for the duration of this case, would permit them to leapfrog all applicants currently ahead of them in the processing queue—a move that would produce no overall benefit. Numerous courts in this District have held that such a result weighs heavily against movants situated similarly to Plaintiffs. See, e.g., Zeng v. Mayorkas , No. 21-cv-446 (DLF), 2021 WL 2389433, at *4 (D.D.C. April 16, 2021) ; Verma v. U.S. Citizenship and Immigration Servs. , No 20-cv-3419 (RDM), 2020 WL 7495286, at *9–10 (D.D.C. Dec. 18, 2020) ; Muvvala v. Wolf , No. 20-cv-2423 (CJN), 2020 WL 5748104, at *4 (D.D.C. Sept. 25, 2020).
Other TRAC factors also weigh against a finding of unreasonable delay. Courts have recognized that a "first in, first out" policy of adjudicating H-4 and EAD immigration applications is a "rule of reason" under the first TRAC factor. See Verma , 2020 WL 7495286 at *6 (citing cases). Plaintiffs are incorrect that Defendants have not supplied evidence of a "first in, first out" policy governing such applications. See Pl.’s Reply to Defs.’ Opp'n to Pls.’ Mot., ECF No. 15 [hereinafter Pls.’ Reply], at 2; Defs.’ Opp'n at 17 n.8 (citing USCIS website explaining that the agency will "generally process cases in the order [it] receive[s] them"). As for the second TRAC factor, Congress has not provided a firm deadline by which USCIS must adjudicate H-4 and EAD applications. See Verma , 2020 WL 7495286, at *7. Plaintiffs insist that, under 8 U.S.C. § 1571(b), the agency is required to process applications within 30 days. Pls.’ Reply at 4–5. Not so. The 30-day period referenced in section 1571(b) applies solely to "petition[s] for [ ] nonimmigrant visa[s] under section 1184(c)," which are not the type of applications at issue here. See 8 U.S.C. § 1571(b) ; 8 U.S.C. § 1184(c) (addressing "Petition[s] of importing employer[s]"). For H-4 and EAD applications, the relevant time period under section 1571(b) is 180 days. The statute provides only that "[i]t 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." 8 U.S.C. § 1571(b) (emphasis added). The emphasized language renders the 180-day deadline non-binding. See Verma , 2020 WL 7495286, at *7 (noting that such language sets only "a normative expectation of a reasonable processing time" rather than a "mandatory timeline"). Although Congress's expectation provides some weight in favor of a plaintiff claiming unreasonable delay, it is not comparable to a statutory directive. See id. In any event, even a processing time in excess of six months—as is the case for Liu (around seven months), though not Ding (around five months)—is not by itself sufficient to warrant relief. See In re Barr Labs. , 930 F.2d at 75 ("[A] finding that delay is unreasonable does not, alone, justify judicial intervention.").
The third and fifth TRAC factors—whether health and human welfare are at stake and the prejudice due to delay—are related, and here they weigh in favor of court intervention, but only modestly. Both Plaintiffs have demonstrated an actual or imminent loss of employment and/or income. See Liu Decl. ¶ 18; Ding Decl. ¶¶ 14–15. Additionally, neither will be able to earn an income while their applications are adjudicated, which could take up to an additional three months, meaning a lengthy period of significant lost wages. See Defs.’ Suppl. Mem., ECF No. 18, at 16. Both Plaintiffs also are likely to experience increased health care costs. See Suppl. Decl. of Xiaoda Liu, ECF No. 17-1, ¶ 4; Suppl. Decl. of Rouyi Ding, ECF No. 17-2, ¶ 3. That said, both Plaintiffs have working spouses, and neither Plaintiff has made a sufficiently concrete representation about savings that might be available to cover regular household expenses in the coming months. Of course, the court does not mean to diminish the stress and anxiety Plaintiffs and their families must be experiencing during this time of uncertainty. But their situation is not dissimilar to others, see, e.g., Zeng , 2021 WL 2389433, at *4 ; Verma , 2020 WL 7495286, at *8, and so the court is compelled to conclude that the third factor does not favor relief and the fifth factor does so only nominally.
Finally, the sixth factor—whether any agency impropriety is at play—is neutral, as Plaintiffs do not identify any maladministration on the part of Defendants. See Verma , 2020 WL 7495286, at *10.
In sum, application of the TRAC factors on the present record does not demonstrate that Plaintiffs are likely to succeed on the merits of their unreasonable delay claim.
B.
The court addresses irreparable harm only briefly. As the Supreme Court has explained, irreparable harm arising from lost employment is limited to "extraordinary cases." Sampson , 415 U.S. at 92 n.68, 94 S.Ct. 937. The Court has not defined what constitutes an "extraordinary case," but it has "held that an insufficiency of savings or difficulties in immediately obtaining other employment—external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself—will not support a finding of irreparable injury, however severely they may affect a particular individual." Id. The court has little doubt that the conditions Plaintiffs face are extraordinary from their perspective, but that does not make theirs an "extraordinary case" as contemplated by Sampson . Plaintiffs therefore have not established irreparable harm on the present record.
IV.
Because Plaintiffs have not carried their burden with respect to the two most significant preliminary injunction factors—likelihood of success and irreparable harm—the court denies their motion.
The court will defer consideration of Defendants’ motion to dismiss. Defendants shall file by August 6, 2021, a Status Report that updates the court on the adjudication of Plaintiffs’ applications. See Mashpee , 336 F.3d at 1102 ("[I]f the district court is unable to conclude that the delay to date has been unreasonable, then it may nevertheless retain jurisdiction over the case in order to monitor the agency's assurances that it is proceeding as diligently as possible with the resources available to it").