1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FARANGIS EMAMI, et al., Case No. 18-cv-01587-JD

8 Plaintiffs,

ORDER RE SUMMARY JUDGMENT

v. 9

10 ALEJANDRO MAYORKAS, et al., Defendants. 11

12 PARS EQUALITY CENTER, et al., Case No. 18-cv-07818-JD

13 Plaintiffs, 14 v.

15 ANTONY BLINKEN, et al., Defendants. 16

17 18 In these related cases, plaintiffs ask for summary judgment on their claims under the 19 Administrative Procedure Act. Dkt. No. 197.1 They do not seek summary judgment for their 20 APA claims based on the Accardi doctrine, see id. at 11 n.13, and so those claims are not 21 addressed in this order. They request summary judgment only on their APA claims brought 22 pursuant to 5 U.S.C. §§ 706(2)(A) and (D). See id. at 16-23. The Court finds plaintiffs’ motion to 23 be suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b). 24 The government makes only one real argument in opposition to plaintiffs’ summary 25 judgment motion. They say that plaintiffs’ claims are moot because President Biden revoked 26 Proclamation 9645 issued by former President Trump, and so “the waiver process implemented by 27 1 the U.S. Department of State [pursuant to Proclamation 9645] that is the sole subject of these 2 lawsuits no longer exists.” Dkt. No. 202 at 1. 3 While the revocation provided substantial relief, it did not moot all of plaintiffs’ claims. 4 The government says that plaintiffs “do not suffer any continuing harms from the Department’s 5 implementation of the waiver provisions in Proclamation 9645.” Dkt. No. 202 at 12. But 6 plaintiffs have demonstrated that their visa applications were denied without the opportunity to 7 apply under a properly-administered waiver process, and even if permitted to reapply, they will 8 bear undue transactional costs, financial and otherwise, that they should not be required to bear for 9 a second time. See, e.g., Dkt. No. 197-6 (Scott Declaration) ¶¶ 13, 19-20; Dkt. No. 197-7 10 (Farnoodian-Tedrick Declaration) ¶¶ 13-14. These are genuine injuries that continue to exist 11 independent of the revocation, and which plaintiffs seek to remedy. 12 The government’s suggestion that, because of the revocation, any order by the Court would 13 be tantamount to an “advisory” opinion is also misdirected. Dkt. No. 202 at 15. To start, the 14 government rather surprisingly did not adduce proof that the “agency guidance materials relating 15 to Proclamation 9645 . . . became defunct with the revocation of Proclamation 9645.” Id. at 16. 16 That statement is purely argument by the government’s counsel, without any evidence the Court 17 can bank on. As the District of Columbia Circuit Court noted in Almaqrami v. Pompeo, 933 F.3d 18 774 (D.C. Cir. 2019), it was not clear that the State Department’s guidance memo in that case 19 “expired by its own terms” along with the Executive Order that the memo was related to, and in 20 fact there was “‘nothing in the record suggesting that’ the Guidance Memo or the policy it 21 announced ‘was ever rescinded or modified.’” 933 F.3d at 783 (internal citations omitted). So too 22 here. The government did not establish that the agency guidance materials at issue do not “remain 23 on the books for now.” Id. (quoting Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 627 n.5 24 (2018)). 25 Even assuming for discussion that the government had done that, a genuine dispute 26 remains for the Court to resolve. The decision in Uzuegbunam v. Preczewski, 141 S. Ct. 792 27 (2021), indicates that the Court may determine the legality of withdrawn materials where, as here, 1 Justice had some qualms about that, as expressed in his lone dissent, see 141 S. Ct. at 802-03 2 (Roberts, C.J., dissenting), but the majority concluded that even though the challenged speech 3 restrictions had been withdrawn, the case before the Court was not moot, and there remained a live 4 case about the constitutionality of those withdrawn speech policies. See id. at 796-802. The same 5 principle applies in full force here. 6 That puts to rest the entirety of the government’s arguments in opposition to summary 7 judgment, Dkt. No. 202, and the Court finds that plaintiffs’ submissions affirmatively support a 8 grant of summary judgment in their favor. Summary judgment may be granted when there is no 9 genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. 10 Ecological Rights Foundation v. Federal Emergency Management Agency, 384 F. Supp. 3d 1111, 11 1119 (N.D. Cal. 2019). In an APA case, the Court decides summary judgment motions based on a 12 review of the agency’s administrative record. Id. The Court’s role is to determine whether the 13 agency’s record supports the agency’s decision as a matter of law under the APA’s arbitrary and 14 capricious standard of review. See Occidental Engineering Co. v. I.N.S., 753 F.2d 766, 769 (9th 15 Cir. 1985). In so doing, the Court may rely on the portions of the record that the parties have cited 16 and argued. It is not the Court’s task to “scour the record in search of a genuine issue of triable 17 fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotations and citations 18 omitted). 19 Drawing all inferences and viewing all evidence in the light most favorable to the 20 government, the Court finds that plaintiffs have met their burden of showing that there is no 21 genuine dispute as to any material fact, and that the waiver implementation guidance was arbitrary 22 and capricious in violation of the APA. Plaintiffs have come forward with numerous waiver 23 criteria -- such as for “undue burden,” “undue hardship,” “national interest,” and “national 24 security,” Dkt. No. 197 at 5-7, 21-22 -- for which the government promulgated unduly narrow and 25 restrictive limitations, and for which no rational explanations can be found in the administrative 26 record, Dkt. No. 98-1. 27 Consequently, summary judgment is granted in plaintiffs’ favor on the APA claims 1 meet and confer, and discuss the following issue: the procedures the government will use 2 (i) to confirm that affected applicants wish to have their applications reconsidered, as well as 3 (ii) for those interested applicants to update their applications in a way that is least burdensome to 4 || the applicants but will still provide the government with any necessary updates that would be 5 || material to the government’s consideration of the applications. 6 The summary judgment hearing set for August 16, 2022, at 2:00 p.m. is changed to a status 7 conference to discuss the issue identified by the Court. The remote access information remains the 8 same. See Dkt. No. 206. 9 The Court expects that plaintiffs’ APA notice-and-rulemaking claims and Accardi claims 10 can be dismissed once the remedy issue has been worked out, since the APA arbitrary-and- 11 capricious claim should be a sufficient basis for plaintiffs to obtain the totality of the relief they 12 are still seeking in this case. 13 IT IS SO ORDERED. 14 |] Dated: August 1, 2022

16 5 AME NATO. nitedfftates District Judge 18 19 20 21 22 23 24 25 26 27 28