1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

VALA MOGHADDAM and NAHID SHAREI,

Plaintiffs,

v.

MICHAEL POMPEO et al.,

Defendants.

Civil Action No. 19-668 (CKK)

MEMORANDUM OPINION

(January 22, 2020)

Pending before the Court is Defendants’ Motion to Dismiss, ECF No. 10. Defendants have 

moved to dismiss the operative Petition for Writ of Mandamus and Complaint for Declaratory and 

Injunctive Relief (“Compl.”), ECF No. 3–1, under Federal Rules of Civil Procedure 12(b)(1) and 

12(b)(6) for lack of subject-matter jurisdiction and for failure to state a claim. Upon consideration 

of the briefing,1 the relevant legal authorities, and the record as relevant to this Motion, the Court 

DENIES Defendants’ Motion. In particular, the Court finds that it has jurisdiction over Plaintiffs’ 

claims under the Administrative Procedure Act (“APA”) and accordingly concludes that it does not 

need to reach the question of whether it has jurisdiction under the Mandamus Act. Moreover, the 

Court finds that Plaintiffs have sufficiently pleaded the challenged claims under the APA.

 1 The Court’s consideration has focused on the following:

• Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 10;

• Pls.’ Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Opp’n”), ECF No. 12, along with the related 

Exhibits (“Pls.’ Exhibits”), ECF No. 13;

• Notice of Errata to Pls.’ Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Errata”), ECF No. 14; and 

• Reply Mem. in Supp. of Defs.’ Mot. to Dismiss Pls.’ Compl. (“Defs.’ Reply”), ECF No. 

16. 

In an exercise of its discretion, the Court finds that holding oral argument would not be of 

assistance in rendering a decision. See LCvR 7(f). 
2

I. BACKGROUND

In short, Plaintiffs allege that Defendants have denied them timely adjudication of Plaintiff 

Nahid Sharei’s visa application and associated waiver under Presidential Proclamation 9645, 

“Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United 

States by Terrorists or Other Public-Safety Threats,” which President Donald Trump signed on 

September 24, 2017. See 82 Fed. Reg. 45161 (2017) (“Proclamation”). The Proclamation “sought 

to improve vetting procedures by identifying ongoing deficiencies in the information needed to 

assess whether nationals of particular countries present ‘public safety threats.’” Trump v. Hawaii, 

138 S. Ct. 2392, 2404 (2018) (quoting Proclamation § 1(a)). To that end, the Proclamation 

restricted entry for nationals of several foreign states whose systems for managing and sharing 

such information the President considered inadequate. See id.; Proclamation § 2. This includes 

Iran, for which the Proclamation suspended entry of immigrants, with limited exceptions that are

inapplicable here. See Proclamation § 2(b). 

The Proclamation, however, also allows case-by-case waivers. See id. § 3(c). Under the 

Proclamation, a waiver is appropriate “when a foreign national demonstrates undue hardship, and 

that his [or her] entry is in the national interest and would not pose a threat to public safety.” Trump 

v. Hawaii, 138 S. Ct. at 2406; see Proclamation § 3(c)(i). The Proclamation singles out several 

scenarios as circumstances in which waivers “may be appropriate,” including when a “foreign 

national seeks to enter the United States to visit or reside with a close family member (e.g., a 

spouse, child, or parent) who is a United States citizen,” specifically when “the denial of entry 

would cause the foreign national undue hardship.” Proclamation § 3(c)(iv)(C). In describing the 

waivers, the Proclamation notes that waivers are “issued by a consular officer as part of the visa 

adjudication process.” Id. § 3(c)(iii). Moreover, the Proclamation requires the Department of 
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Homeland Security and the State Department to issue guidance “elaborating upon the 

circumstances that would justify a waiver.” Trump v. Hawaii, 138 S. Ct. at 2423; see Proclamation 

§ 3(c)(ii). 

Plaintiffs here are concerned with this waiver process as applied to them. Plaintiff Vala 

Moghaddam is a U.S. citizen while his wife, Plaintiff Nahid Sharei, is an Iranian national. Compl. 

¶¶ 21–22. They were married on January 29, 2016. Id. ¶ 55. On December 21, 2016, Plaintiff 

Moghaddam filed a Petition for Alien Relative (an I-130 Petition) on behalf of his wife, Plaintiff 

Sharei. Id. ¶ 57. The petition was approved on July 7, 2017. Id. Subsequently, on August 9, 

2017, Plaintiffs paid the visa processing fees and submitted Plaintiff Sharei’s Immigrant Visa 

Electronic Application (a DS-260 Application) for an immigrant visa with the U.S. Embassy in 

Ankara, Turkey. Id. She was assigned the consular case number ANK2017702009. Id. 

Plaintiff Sharei was interviewed by the Consular Section of the U.S. Embassy in Ankara 

on January 25, 2018. Id. ¶ 59. She attempted to submit a waiver request letter pursuant to the

Presidential Proclamation during the interview, but it was refused. Id. ¶¶ 59–60. Her visa 

application was refused under Section 212(f) of the Immigration and Nationality Act (“INA”) 

under the Presidential Proclamation. Id. ¶ 61. She was, however, referred for waiver eligibility 

review under the Proclamation. Id. She therefore filled out Supplemental Questions for Visa 

Application (a DS-5535 form). Id. ¶ 62.

As of the date of the filing of her Complaint, Plaintiff Sharei had waited nineteen months 

after filing her immigrant visa application and fourteen months since her interview without any 

determination of whether she was eligible for a waiver under the Proclamation. Id. ¶ 63. The 

online status checker for her visa application explained that her case was “undergoing necessary 

administrative processing.” Id.; see id. Ex. F. Although Plaintiffs have inquired as to the status of 
4

her application multiple times, they have not received any useful information indicating when her 

waiver eligibility will be processed. Id. ¶ 82. As of the date of this Memorandum Opinion,

Plaintiff has been waiting twenty-nine months (over two years) since filing her visa application 

and twenty-four months (around two years) since her interview to discover whether she is eligible 

for a waiver. See id. ¶ 63. Plaintiffs claim that as a result of their separation, they have suffered 

numerous emotional, psychological, and monetary harms. Id. ¶¶ 65–76.

Plaintiffs brought this suit on March 10, 2019. See Petition for Writ of Mandamus and 

Compl. for Declaratory and Injunctive Relief, ECF No. 1. Plaintiffs claim that Defendants have a 

non-discretionary duty to adjudicate both her visa application and the related waiver eligibility 

under the Proclamation and implementing agency guidance. See, e.g., Compl. ¶ 86. They further 

claim that Defendants have unreasonably withheld that adjudication. See, e.g., id. ¶ 87. 

Accordingly, Plaintiffs primarily ask for a writ of mandamus and injunction under the APA 

directing Defendants to adjudicate her visa application, by which Plaintiffs largely mean her 

waiver eligibility, within fifteen days of the order; issue a declaratory judgment that the delay in 

adjudicating her waiver eligibility is unreasonable and violates the APA and that she is entitled to 

adjudication of her visa application within fifteen days of the order; and a writ of mandamus under 

the Mandamus Act, 28 U.S.C. § 1361, compelling Defendants to adjudicate her visa application 

(that is, her waiver eligibility) within fifteen days of the order.2

 Id. at Prayer for Relief ¶¶ A–E.

 2 In their Complaint, Plaintiffs also request a preliminary injunction. Compl. at Prayer for Relief 

¶ A. Because Plaintiffs never moved separately for this relief and do not now seek it, the Court 

does not consider it here. 
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II. LEGAL STANDARDS

A. Subject Matter Jurisdiction under Rule 12(b)(1)

A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject matter 

jurisdiction. In determining whether there is jurisdiction, the Court may “consider the complaint

supplemented by undisputed facts evidenced in the record, or the complaint supplemented by 

undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion 

v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted) (quoting Herbert 

v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)); see also Jerome Stevens Pharm., Inc. 

v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider 

materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of 

jurisdiction.”)

In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all 

factual allegations in the complaint and construe the complaint liberally, granting plaintiff the 

benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole 

Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005) (“At the motion to dismiss stage, counseled 

complaints as well as pro se complaints, are to be construed with sufficient liberality to afford all 

possible inferences favorable to the pleader on allegations of fact.”); Leatherman v. Tarrant Cty. 

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993) (“We review here a decision 

granting a motion to dismiss, and therefore must accept as true all the factual allegations in the 

complaint.”); Koutny v. Martin, 530 F. Supp. 2d 84, 87 (D.D.C. 2007) (“[A] court accepts as true 

all of the factual allegations contained in the complaint and may also consider ‘undisputed facts 

evidenced in the record.’” (internal citations omitted) (quoting Mineta, 333 F.3d at 198)). 
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Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains 

the plaintiff’s burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. 

Farm Bureau v. United States Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000). 

“Although a court must accept as true all factual allegations contained in the complaint when 

reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual allegations in the 

complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) 

motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 

170 (D.D.C. 2007) (internal citations and quotation marks omitted) (quoting Grand Lodge of 

Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001)), aff’d, 2008 WL 

4068606 (D.C. Cir. Mar. 17, 2008). A court need not accept as true “a legal conclusion couched 

as a factual allegation” or an inference “unsupported by the facts set out in the complaint.” Trudeau 

v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotation marks omitted) 

(quoting Papasam v. Allain, 478 U.S. 265, 286 (1986)).

B. Failure to State a Claim under Rule 12(b)(6)

Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it 

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint 

is not sufficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 

(2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient 

factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” 

Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678. “In evaluating a motion to dismiss, the Court must accept the 
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factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff.” 

Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 27 (D.D.C. 2006).

When considering a Rule 12(b)(6) motion, courts may consider “the facts alleged in the 

complaint, documents attached as exhibits or incorporated by reference in the complaint” or 

“documents upon which the plaintiff’s complaint necessarily relies even if the document is 

produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward 

v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) 

(internal quotation marks and citations omitted) (quoting Gustave–Schmidt v. Chao, 226 F. Supp. 

2d 191, 196 (D.D.C. 2002); Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)). 

The court may also consider documents in the public record of which the court may take judicial 

notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).

III. DISCUSSION

Defendants raise several inter-related arguments supporting their Motion. Although it is at 

times difficult to separate these arguments in the briefing, the Court identifies the distinct 

arguments and discusses them below.3

A. Mootness 

First, Defendants argue that Plaintiffs’ claims are moot because her visa application itself 

has already been adjudicated. See Defs.’ Mot. at 14–17. In response, Plaintiffs explain that they 

are seeking adjudication specifically of her waiver eligibility, which they argue is part of the visa 

application process under the Proclamation. See, e.g., Pls.’ Opp’n at 6–7. This Court agrees that 

 3 Defendants’ Motion references a potential due process claim by Plaintiffs. Defs.’ Mot. at 3. 

However, because Defendants do not develop this argument other than a brief mention in their 

preliminary statement, and because it is unclear whether Plaintiffs even allege a due process claim,

the Court does not consider this argument here.
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Plaintiffs claims are not moot because Plaintiff Sharei’s waiver eligibility has not yet been 

adjudicated and she does not seek to have Defendants readjudicate the initial denial of her visa 

application. 

The jurisdiction of federal courts is limited by Article III of the Constitution to the 

adjudication of actual, ongoing cases or controversies. This limitation “gives rise to the doctrines 

of standing and mootness.” Foretich v. United States, 351 F.3d 1198, 1210 (D.C. Cir. 2003); see 

Sierra Club v. Jackson, 648 F.3d 848, 852 (D.C. Cir. 2011) (“Article III of the Constitution limits 

the federal courts to adjudication of actual, ongoing controversies.”). Pursuant to the mootness 

doctrine, it “is not enough that the initial requirements of standing and ripeness have been satisfied; 

the suit must remain alive throughout the course of litigation, to the moment of final appellate 

disposition. If events outrun the controversy such that the court can grant no meaningful relief; 

the case must be dismissed as moot.” People for the Ethical Treatment of Animals, Inc. v. United 

States Fish & Wildlife Serv., 59 F. Supp. 3d 91, 95 (D.D.C. 2014) (internal quotation marks and 

citations omitted) (quoting 13B Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 3533 (3d ed. 2014); McBryde v. Comm. to Review Circuit Council Conduct and 

Disability Orders of the Judicial Conference of the U.S., 264 F.3d 52, 55 (D.C. Cir. 2001)). “A 

case is moot when the challenged conduct ceases such that there is no reasonable expectation that 

the wrong will be repeated in circumstances where it becomes impossible for the court to grant 

any effectual relief whatever to the prevailing party.” United States v. Philip Morris USA Inc., 

566 F.3d 1095, 1135 (D.C. Cir. 2009) (internal quotation marks omitted) (quoting City of Erie v. 

Pap’s A.M., 529 U.S. 277, 287 (2000)).

Defendants argue that Plaintiffs’ claims are moot here because Plaintiff Sharei’s “visa was 

already denied.” Defs.’ Mot. at 16. Defendants, however, misunderstand the relief that Plaintiffs 
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are seeking. Plaintiffs make clear, both in their Complaint and in their briefing on this Motion, 

that they are specifically seeking adjudication of Plaintiff Sharei’s waiver eligibility. See, e.g., 

Pls.’ Opp’n at 5–6. Indeed, Plaintiffs acknowledge that Plaintiff Sharei’s initial visa application 

was refused. See Compl. ¶ 61 (explaining that Plaintiff Sharei was “given refusal notice under 

section 212(f) of the US Immigration and Nationality Act” and that her “visa application was 

refused under the Presidential Proclamation”); Pls.’ Opp’n at 5 (“Plaintiffs do not dispute that 

Plaintiff Sharei received a 212(f) refusal of her visa application, but clearly that refusal is not final 

and her application remains pending further administrative processing.”). To the extent that 

Plaintiffs phrase their requested relief as adjudication of her visa application, Plaintiffs do so 

because they view the waiver eligibility determination as part of the visa application process. See, 

e.g., Compl. ¶ 63 (explaining that online visa status check lists her case as “currently undergoing 

necessary administrative process”); id. at Prayer for Relief ¶¶ A–C (including “waiver eligibility” 

specifically in relief requested); Pls.’ Opp’n at 5 (“This deliberate and intentional language clearly 

indicates that waiver consideration is part of the visa adjudication process and must be completed 

before a final decision can be made.”). 

In light of Plaintiffs’ clarifications in their Complaint and briefing, this Court need not 

consider at this juncture whether the waiver eligibility determination should be considered part of 

the overall visa adjudication process. According to Plaintiffs, they primarily seek injunctive relief 

related to Plaintiff Sharei’s waiver eligibility. That they view this as part of the broader visa 

adjudication process is irrelevant to this argument because Defendants admit that her waiver 

eligibility has not yet been determined. See Defs.’ Mot. at 2 (“Plaintiff Sharei’s application for a 

waiver remains under consideration[.]”); see also Dybdahl Decl., ECF No. 10-3, ¶ 6 (“Ms. Sharei 
10

is undergoing consideration for a waiver of the Proclamation’s entry restrictions.”). Accordingly,

her claims seeking adjudication of that eligibility are not moot. 

B. Consular Nonreviewability 

Defendants’ second major argument is that Plaintiffs’ claim is not reviewable under the 

consular nonreviewability doctrine. But Defendants overlook that the consular nonreviewability 

doctrine applies only to decisions actually made by consular officers; Plaintiffs are not challenging 

any such decisions here. 

“Normally a consular official’s discretionary decision to grant or deny a visa petition is not 

subject to judicial review.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997). Courts do not 

typically have subject-matter jurisdiction to review decisions of consular officers to deny visas 

because the INA confers “upon consular officers [the] exclusive authority to review applications 

for visas.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1156–57 (D.C. Cir. 1999). Under this 

doctrine, called consular nonreviewability, “a consular official’s decision to issue or withhold a 

visa is not subject to judicial review, at least unless Congress says otherwise,” as matters of “policy 

toward aliens are . . . so exclusively entrusted to the political branches of government as to be 

largely immune from judicial inquiry or interference.” Id. at 1159 (internal quotation marks 

omitted) (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952)); see also United 

States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (“[I]t is not within the province of 

any court, unless expressly authorized by law, to review the determination of the political branch 

of the Government to exclude a given alien.”). But when the suit challenges inaction, “as opposed 

to a decision taken within the consul’s discretion,” there is jurisdiction. Patel, 134 F.3d at 931–

32; see Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the United States 

v. Kerry, 168 F. Supp. 3d 268, 290 (D.D.C. 2016) (“Nine Iraqi Allies”) (“[T]he doctrine of consular 
11

nonreviewability is not triggered until a consular officer has made a decision with respect to a 

particular visa application.”).

That is what Plaintiffs seek here. Plaintiffs do not challenge the initial denial of Plaintiff 

Sharei’s visa application. See, e.g., Pls.’ Opp’n at 3 (explaining that Plaintiffs’ claims specifically 

target “indefinite delay in the adjudication” of her visa application). Instead, in Plaintiffs’ own 

words, they challenge “not a visa denial, but rather the failure of Defendants to, properly and within 

a reasonable time, perform their mandatory, non-discretionary duty to adjudicate Plaintiff Sharei’s 

visa application and waiver, which clearly remains pending and has not been denied.” Id. at 4. As 

explained above, Plaintiffs refer to the visa application process as a whole but are specifically 

concerned with Plaintiff Sharei’s waiver eligibility, which they view as part of the overall visa 

application process. See id. Defendants provide scant support for their extension of the consular 

nonreviewability doctrine from judicial review of visa decisions to the alleged withholding of a 

visa or waiver decision. Their references to Trump v. Hawaii, in which the Supreme Court upheld 

the Proclamation against several challenges and discussed the discretion given to the President in 

the INA, are inapposite, as that discussion did not touch on the consular nonreviewability doctrine. 

See Defs.’ Mot. at 8–9 (acknowledging that Supreme Court “had no occasion to reach” consular 

nonreviewability doctrine).

Nor does the doctrine suggest that such an extension is appropriate. The limited scope of 

the doctrine exists because “it protects the prerogative of the political branches to regulate the 

manner in which aliens may enter the United States.” Nine Iraqi Allies, 168 F. Supp. 3d at 290. 

But “[w]hen the Government simply declines to provide a decision in the manner provided by 

Congress, it is not exercising its prerogative to grant or deny applications but failing to act at all.” 

Id. at 290–91. The doctrine’s underlying purpose is not served by extending it to this context, and 
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this Court rejects Defendants’ invitation to do so here. See Am. Acad. of Religion v. Chertoff, 

463 F. Supp. 2d 400, 421 (S.D.N.Y. 2006) (“But the wide latitude given the Executive to grant or 

deny a visa application—a discretion bounded only by the U.S. Constitution and Congressional 

mandate—does not include the authority to refuse to adjudicate a visa application.”). Because of

these principles, and because waiver decisions are not discretionary as discussed below, this 

argument is unpersuasive. See Didban v. Pompeo, No. 19-CV-881 (CRC), 2020 WL 224517, at 

*4 (D.D.C. Jan. 15, 2020) (finding that consular nonreviewability doctrine did not apply to case 

alleging unreasonable delay of waiver eligibility decision); Motaghedi v. Pompeo, No. 

119CV01466LJOSKO, 2020 WL 207155, at *8 (E.D. Cal. Jan. 14, 2020) (finding that consular 

nonreviewability doctrine did not apply to waiver delay challenge and rejecting argument that 

consular nonreviewability doctrine extends to whether waiver decision must be made).

C. Committed to Agency Discretion

Defendants next argue that Plaintiffs’ claims cannot succeed because they are challenging

agency action “committed to agency discretion by law,” which is exempted from review under the 

APA. See Defs.’ Mot. at 10 (citing 5 U.S.C. § 701(a)(2)). Defendants appear to suggest the entire 

waiver program is committed to agency discretion in addition to decisions on individual waivers. 

See id. (“Rather, the waiver program is governed exclusively by the Proclamation—a presidential 

action that is not subject to the APA.”). Neither argument, however, is persuasive.

The APA provides for judicial review of certain agency actions and requires the reviewing 

court to set aside any “agency action, findings, and conclusions” found to be, among other things, 

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2)(A). However, judicial review is not available where the agency action “is committed to 

agency discretion by law.” Id. § 701(a)(2). The Supreme Court has articulated as least two 
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scenarios in which this exclusion applies: (1) “in those rare instances where statutes are drawn in 

such broad terms that in a given case there is no law to apply,” Citizens to Preserve Overton Park, 

Inc. v. Volpe, 401 U.S. 402, 410 (1971) (internal quotation marks omitted), and (2) when “the 

statute is drawn so that a court would have no meaningful standard against which to judge the 

agency’s exercise of discretion,” Heckler v. Chaney, 470 U.S. 821, 830 (1985). “Agency actions 

in these circumstances are unreviewable because the courts have no legal norms pursuant to which 

to evaluate the challenged action, and thus no concrete limitations to impose on the agency’s 

exercise of discretion.” Sierra Club v. Jackson, 648 F.3d 848, 855 (D.C. Cir. 2011) (internal 

quotation marks omitted).

Section 701(a)(2) “provides a ‘very narrow exception’ that applies only in ‘rare instances.’” 

Cody v. Cox, 509 F.3d 606, 610 (D.C. Cir. 2007) (quoting Volpe, 401 U.S. at 410). Courts “begin 

with the strong presumption that Congress intends judicial review of administrative action, and 

that the court will not deny review ‘unless there is persuasive reason to believe that such was the 

purpose of Congress.’” Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338, 1343–44 (D.C. Cir.

1996) (citation omitted) (quoting Dickson v. Sec’y of Defense, 68 F.3d 1396, 1401 (D.C. Cir. 

1995)). To determine whether an action is committed to agency discretion, courts consider “both 

the nature of the administrative action at issue and the language and structure of the statute that 

supplies the applicable legal standards for reviewing that action.” Sec’y of Labor v. Twentymile 

Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006) (internal quotation marks omitted).

Defendants here first suggest that because the Proclamation is not subject to the APA, and 

because it was upheld against certain challenges by the Supreme Court, all decisions made under 

it—such as waiver decisions—are similarly not reviewable. See Defs.’ Mot. at 10; Defs.’ Reply at 

4. Defendants present no authority that sufficiently supports this sweeping assertion. The 
14

“committed to agency discretion” exception has consistently been recognized, in the Supreme 

Court, the D.C. Circuit, and elsewhere, as a “very narrow exception.” Cody, 509 F.3d at 610 

(internal quotation marks omitted). 

Nor does the exception apply here, as there are meaningful standards and law to apply. 

Defendants propose that because there is no “statutory or regulatory entitlement to any particular 

process by which or timeframe within which an applicant is considered for waiver,” the committed 

to agency discretion exception applies. Defs.’ Mot. at 10. Plaintiffs do not contest that there is no 

strict timeframe set by the Proclamation or agency guidance for processing waivers. Instead, 

Plaintiffs argue that the general APA reasonableness standard governs the timeframe and that,

while the ultimate decision of whether to grant a visa is discretionary, the agency has no discretion 

whether to consider waiver eligibility. See Pls.’ Opp’n at 8–18. The Court agrees with Plaintiffs 

on both points. 

1. Reasonable Timeframe

Sections 555(b) and 706(1) of the APA, upon which Plaintiffs rely, see, e.g., id. at 9, 

generally require agencies to act within a reasonable time. Cases like this one that target agency 

action unreasonably delayed turn on “whether the agency’s delay is so egregious as to warrant 

mandamus.” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (internal quotation 

marks omitted) (quoting Telecommc’ns Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79 

(D.C. Cir. 1984)). “There is ‘no per se rule as to how long is too long’ to wait for agency action, 

but a reasonable time for agency action is typically counted in weeks or months, not years.” In re 

Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (citation omitted) (quoting 

In re Int’l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992)). In considering whether 

agency delay is unreasonable, courts in this circuit consider six factors, which are:
15

(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 agency action is unreasonably delayed.

In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (internal 

quotation marks omitted). The D.C. Circuit has explained that the first factor—that “the time 

agencies take to make decisions must be governed by a rule of reason”—is the most important. In 

re Core Commc’ns Inc., 531 F.3d at 849 (internal quotation marks omitted). 

At the motion to dismiss stage, this Court need not consider whether the agency delay 

alleged here is unreasonable. Undergoing such a fact-specific inquiry at this stage would be 

premature.4

 See, e.g., M.J.L. v. McAleenan, No. A-19-CV-00477-LY, 2019 WL 6039971, at *6 

(W.D. Tex. Nov. 13, 2019) (finding that “at the motion to dismiss stage and before discovery has 

been completed,” it would be “premature to address these [TRAC] factors”); Hamandi v. Chertoff, 

550 F. Supp. 2d 46, 54 (D.D.C. 2008) (“While the court has jurisdiction over USCIS, the 

determination of whether an agency’s delay is unreasonable is a fact specific inquiry that is 

premature at this stage of the proceedings.”); see also Mashpee Wampanoag Tribal Council, Inc. 

v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (“Resolution of a claim of unreasonable delay is 

ordinarily a complicated and nuanced task requiring consideration of the particular facts and 

circumstances before the court.”).

 4 Defendants separately argue that Plaintiffs’ claims must be dismissed because the delay alleged 

is not unreasonable. See Defs.’ Mot. at 12–13. As the Court finds that analyzing whether the delay 

was unreasonable would be premature at the motion to dismiss stage and before discovery has 

been completed, it does not reach this argument in this Memorandum Opinion. 
16

However, these factors shed light on what is required for Plaintiffs’ claims to survive 

Defendants’ arguments. In short, Defendants argue that there is no timeframe that this Court can 

apply to consider whether the action is unreasonably delayed. But that is not the case. There does 

not need to be a more specific timeframe for a claim brought under the APA other than the 

reasonableness standard, and the six related factors, discussed above. See Motaghedi, 2020 WL 

207155, at *7 (“The absence of any standard upon which to frame a timing requirement is not 

unusual in APA unreasonable delay cases. . . . [the] framework for evaluating such claims takes 

this into account.”). Defendants have provided no reason why this standard does not apply in this 

case as well. As there are meaningful standards and law to apply here, the committed to agency 

discretion exception is inapplicable with respect to the timeframe. See id. at *8–*9 (applying same 

standard in waiver eligibility delay context); Yavari v. Pompeo, No. 2:19-CV-02524-SVW-JC, 

2019 WL 6720995, at *5 (C.D. Cal. Oct. 10, 2019) (applying same standard in waiver eligibility 

delay context and noting that “[c]ourts generally analyze these two statutory requirements (‘within 

a reasonable time’ [under APA Section 555(b)] and ‘unreasonable delay’ [under Section 706(1)]) 

under the same standard” (quoting In re Pesticide Action Network N. Am., Nat. Res. Def. Council, 

Inc., 798 F.3d 809, 813 (9th Cir. 2015))). 

2. Duty to Consider Waivers

Moreover, Defendants suggest that there is no mandatory duty to determine waiver 

eligibility for applicants. Contrary to Defendants’ arguments, Plaintiffs have sufficiently 

demonstrated that the agency does not have discretion on whether to consider certain individuals 

for waivers. This is made clear not only by the text of the Proclamation itself, but also by the 

guidance issued regarding the waiver process. The Proclamation explains that waivers “may” be 

granted “on a case-by-case basis.” Proclamation § 3(c). It requires the Secretary of State and the 
17

Secretary of Homeland Security to “adopt guidance addressing the circumstances in which waivers 

may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.” Id.

§ 3(c). It goes on to specify that this guidance “shall address the standards, policies, and 

procedures” for determining whether foreign nationals satisfy the discretionary waiver 

requirements. Id. § 3(c)(ii). 

The Department of State’s internal guidance discusses the waiver program. Exhibit A to 

Plaintiffs’ Opposition is internal guidance issued by the agency on January 23, 2018; it is titled 

“Operational Q&As on P.P. 6645 in light of the U.S. Supreme Court orders of December 4, 2017, 

lifting lower court injunctions and pursuant to guidance in 17 STATE 97682.” Pls.’ Exhibits Ex. 

A at 1. Defendants do not challenge—or even specifically address—Exhibit A. At several points, 

the guidance makes clear that when an applicant meets certain requirements, they must be 

considered for a waiver. For example, one question and answer pair states that:

Q4: Does the consular officer have to consider a waiver for every applicant who 

is subject to the restrictions of the P.P., otherwise eligible for a visa and to 

which an exception does not apply?

A: Yes, each applicant who meets the conditions described in the question 

posed above must be considered for a waiver, based on the purpose of travel 

and any other information provided by the applicant. However, if the applicant 

fails to meet any one of the three waiver criteria outlined in PP 9645, the officer 

may proceed to refuse the case under refusal code EO17. Consular officers should 

check the appropriate box on the visa denial letter given to applicants subject to the 

P.P., indicating either that a waiver will not be granted or that waiver eligibility will 

be reviewed. 

Pls.’ Exhibits Ex. A at 8 (emphasis added). In response to a question regarding “how long . . . it 

take[s] to issue a waiver,” the guidance explains that “[t]he granting of a waiver under the P.P. is a 

decision that is made by the consular officer and the manager as part of the adjudication.” Id. 

Ex. A at 20 (emphasis added). Later in the document, when discussing visa refusals, the guidance 

explains that before an applicant can be refused under the Proclamation, the officer “must 
18

determine whether the applicant may qualify for a waiver.” Id. Ex. A at 26. Officers must provide 

applicants with a “refusal letter indicating either that a waiver will not be granted or waiver 

eligibility is under review,” and the internal guidance provides exact language to be used in those 

letters. Id. at 26–27. That language explains that applicants under waiver consideration “will be 

contacted with a final determination on [their] visa application[s] as soon as practicable.” Id. Ex. 

A at 27 (emphasis added). This exact language was present in the letter that Plaintiff Sharei 

received. See ECF No. 1-5. Taken together, the guidance reflects the agency’s view that for those 

applicants that meet certain criteria and are under waiver consideration, a decision on the waiver 

must ultimately be made. 

The Department of State’s external guidance, issued after the Supreme Court’s June 26, 

2018 decision in Trump v. Hawaii and which is available on the agency’s website, demonstrates 

the same.5

 For instance, in response to the frequently asked question “What immigrant visa classes 

are subject to the Proclamation?”, the guidance includes the following language: “A consular 

officer will carefully review each case to determine whether the applicant is affected by the 

Proclamation and, if so, whether the case qualifies for an exception or a waiver.” The guidance 

contains nearly identical language explaining that consular officers “will carefully review each 

 5 This webpage is titled “June 26 Supreme Court Decision on Presidential Proclamation 9645,” 

and is available at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/pr

esidential-proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation

9645.html (last accessed Jan. 22, 2020). Under Federal Rule of Evidence 201, a court can take 

judicial notice of “a fact that is not subject to reasonable dispute because it: (1) is generally known 

within the trial court’s territorial jurisdiction” or “(2) can be accurately and readily determined 

from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Moreover, 

a court “may take judicial notice on its own” and “at any stage of the proceeding.” Fed. R. Evid. 

201(c)–(d). “Courts in this jurisdiction have frequently taken judicial notice of information posted 

on official public websites of government agencies.” Pharm. Research & Mfrs. of Am. v. United 

States Dep’t of Health & Human Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014) (collecting cases). 

The Court follows their lead and does the same here for the facts from this webpage discussed in 

the body of the Memorandum Opinion. See id. 
19

case to determine whether . . . the applicant qualifies for an exception or a waiver” in answers to 

five distinct questions. Confirmation of this understanding also comes from a letter dated February 

22, 2018 from Mary K. Waters, Assistant Secretary of Legislative Affairs in the Department of 

State, to Senator Chris Van Hollen, available at https://www.aila.org/infonet/dos-responds-tosenator-van-hollens-concerns, which states that “[e]ach applicant who meets the conditions set 

forth in section 3(c) of the Proclamation must be considered for a waiver,” id. at 2. See Compl. 

¶¶ 43–48 (referencing and discussing letter). 

Furthermore, the Supreme Court’s opinion in Trump v. Hawaii further reflects this 

understanding that consular officers must consider—and ultimately determine—whether 

applicants qualify for a waiver. See, e.g., Trump v. Hawaii, 138 S. Ct. at 2422 (explaining that 

“consular officers are to consider in each admissibility determination whether the alien 

demonstrates” requirements for waiver); see also Motaghedi, 2020 WL 207155, at *7 (“As several 

courts have recognized, in upholding the constitutionality of PP 9645, the Supreme Court relied in 

part on the waiver program[.]”); Emami v. Nielsen, 365 F. Supp. 3d 1009, 1013 (N.D. Cal. 2019) 

(“The allowance for waivers in the Proclamation was an important reason why the five-justice 

majority upheld it as serving a legitimate national security interest.”).

Defendants do not respond directly to the guidance referenced by Plaintiffs, other than to 

suggest that there is no entitlement to a decision on a waiver because there is discretion on whether 

a waiver may be granted, and that discretion is committed entirely to the executive branch. See 

Defs.’ Reply at 3–7. For example, Defendants propose that “[t]he processing of a waiver 

application is committed entirely to agency discretion by Presidential Proclamation 9645—a 

presidential action that is not subject to the APA or Mandamus given the absence of a 
20

nondiscretionary duty.” Defs.’ Mot. at 11. They also suggest that the Proclamation’s disclaimer

that it does not create private rights precludes Plaintiffs from bringing suit.6 Defs.’ Mot. at 12. 

But Defendants’ arguments overlook several important points. First, although “the APA 

does not expressly allow review of the President’s actions,” Franklin v. Massachusetts, 505 U.S. 

788, 801 (1992), Plaintiffs here do not challenge the President’s actions and instead challenge 

agency adherence to the Proclamation itself and agency guidance. See, e.g., Compl. ¶ 114 

(referencing Accardi doctrine relating to agency adherence to guidance). While this circuit has not 

clearly determined whether action taken pursuant to the Proclamation is reviewable, the Ninth 

Circuit has persuasively decided that “officer suits against executive branch officials charged with 

carrying out the instructions contained in Proclamation 9645” are APA-reviewable. Yavari, 

2019 WL 6720995, at *6 (finding waiver eligibility challenge reviewable under APA); see Hawaii 

v. Trump, 878 F.3d 662, 681 (9th Cir. 2017) (“[B]ecause these agencies have consummated their 

implementation of the Proclamation, from which legal consequences will flow, their actions are 

final and therefore reviewable under the APA.” (internal quotation marks and alternations omitted)

(quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997))), rev’d and remanded on other grounds, 

138 S. Ct. 2392 (2018); cf. Chamber of Commerce of United States v. Reich, 74 F.3d 1322, 1326 

(D.C. Cir. 1996) (finding that agency regulations pursuant to executive order were reviewable 

under APA); Tulare Cty. v. Bush, 306 F.3d 1138, 1143 (D.C. Cir. 2002) (suggesting that challenge 

to agency action pursuant to presidential proclamation might have been reviewable under APA if 

 6 Note that Defendants do not clearly separate their “committed to agency discretion” argument 

from their broader consular nonreviewability argument and their suggestion that the Proclamation 

and such presidential actions more generally are not reviewable under the APA, which makes 

untangling the support and reasoning underlying Defendants’ arguments more difficult. See, e.g., 

Defs. Mot. at 10–12. The Court therefore addresses some of these arguments together in this 

Memorandum Opinion. 
21

plaintiffs had alleged with sufficient specificity); O.A. v. Trump, 404 F. Supp. 3d 109, 147 (D.D.C. 

2019) (finding that action was reviewable under APA because rule at issue was promulgated 

pursuant to presidential proclamation). 

Defendants’ arguments in this vein also ignore that an agency may be bound by its own 

policies, and that Plaintiffs here are arguing (among other things) that Defendants are bound by 

their own implementing policies to issue waiver decisions. See, e.g., Pls.’ Opp’n 4–6, 8–9, 14–15; 

see also Compl. ¶ 114 (referencing Accardi doctrine). In fact, “[i]t is well settled that an agency, 

even one that enjoys broad discretion, must adhere to voluntarily adopted, binding policies that 

limit its discretion.” Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987). This doctrine stems 

from the case of United States ex rel. Accardi v. Shaunessy, 347 U.S. 260 (1954). “Accardi has 

come to stand for the proposition that agencies may not violate their own rules and regulations to 

the prejudice of others.” Battle v. F.A.A., 393 F.3d 1330, 1336 (D.C. Cir. 2005); see Steenholdt v. 

F.A.A., 314 F.3d 633, 639 (D.C. Cir. 2003) (“The Accardi doctrine requires federal agencies to 

follow their own rules, even gratuitous procedural rules that limit otherwise discretionary 

actions.”); Damus v. Nielsen, 313 F. Supp. 3d 317, 335–38 (D.D.C. 2018) (explaining connection 

between Accardi doctrine and APA cases). In fact, “in the immigration context,” courts have found 

that “the Accardi doctrine’s ‘ambit is not limited to rules attaining the status of formal regulation,’ 

and that it can be applied to internal agency guidance.” Damus, 313 F. Supp. 3d at 336 (quoting 

Montilla v. INS, 926 F.2d 162, 167 (2d Cir. 1991)). The D.C. Circuit has explained that “an agency 

pronouncement is transformed into a binding norm if so intended by the agency,” and to determine 

agency intent, a court must examine “‘the statement’s language, the context, and any available 

extrinsic evidence.’” Padula, 822 F.2d at 100.
22

If an APA claim premised in part on the agency’s own guidance and pronouncements is 

possible, the question becomes whether Plaintiffs have sufficiently pleaded such a claim. They 

have. Most importantly, Plaintiffs have included in their pleading the internal guidance adopted 

by the Department of State as well as the February 22, 2018 letter. Each of these three 

pronouncements from the agency treat waiver eligibility decisions as mandatory. The same is true 

of the agency’s external guidance, which was specifically made public in such a way that 

applicants can accessit. At bottom, then, the agency pronouncements at issue all states that officers 

do not have the discretion to never act on a waiver application. See, e.g., Najafi v. Pompeo, No. 

19-CV-05782-KAW, 2019 WL 6612222, at *5 (N.D. Cal. Dec. 5, 2019) (finding that “mandatory 

language” in agency guidance relating to Proclamation “demonstrates a decision is required” on 

waivers and noting that “[t]o now argue that the waiver program requires no decision would be to 

render the waiver program illusory”). Considering that the agency has represented this in its 

internal guidance (which was intended to be used by its consular officers), its external guidance 

(which was intended to be accessed, and potentially relied upon, by applicants), in its argument to 

the Supreme Court (as reflected in the Supreme Court’s opinion in Trump v. Hawaii), and in a 

letter sent to a member of Congress, the agency certainly intended to be bound by this guidance. 

Cf. Emami, 365 F. Supp. 3d at 1021 (finding that plaintiffs sufficiently alleged Accardi claim in 

broader challenge to waiver program).

Accordingly, Plaintiffs have sufficiently shown that the challenged decisions do not qualify 

for the committed to agency discretion exception under the APA. Motaghedi, 2020 WL 207155, 

at *6–*7 (finding that delayed waiver decisions were not committed to agency discretion); 

Darchini v. Pompeo, No. SACV191417JVSDFMX, 2019 WL 7195621, at *4 (C.D. Cal. Dec. 3, 

2019) (finding that agency’s guidance demonstrates that action is not committed to agency 
23

discretion); Yavari, 2019 WL 6720995, at *7 (denying motion to dismiss on committed-to-agencydiscretion grounds due to narrowness of exception); Emami, 365 F. Supp. 3d at 1018–19 (denying 

motion to dismiss similar claims in face of arguments that decisions are committed to agency 

discretion). 

D. Mandamus Act 

Defendants also challenge Plaintiffs’ claims brought under the Mandamus Act, 28 U.S.C. 

§ 1361. The writ of mandamus is available “to compel an officer or employee of the United States 

or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. A court may 

grant mandamus relief only if “(1) the plaintiff has a clear right to relief; (2) the defendant has a 

clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.” In re 

Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (internal quotation marks 

omitted). Because this Court found that it had jurisdiction under the APA, an alternative and 

adequate remedy is available to Plaintiffs, and the Court need not reach these arguments. See 

Action All. of Senior Citizens v. Leavitt, 483 F.3d 852, 858 (D.C. Cir. 2007) (noting that “the 

existence of an administrative remedy . . . preclude[d] the exercise of mandamus”); Fort Sill 

Apache Tribe v. Nat’l Indian Gaming Comm’n, 103 F. Supp. 3d 113, 120 n.6 (D.D.C. 2015) (“The 

Court need not reach the question of whether a writ of mandamus is available to compel NIGC to 

issue a decision since it finds it has APA jurisdiction over Count 1.”). 

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Defendants’ Motion to Dismiss. An 

appropriate Order accompanies this Memorandum Opinion.

Date: January 22, 2020 /s/

COLLEEN KOLLAR-KOTELLY

United States District Judge