Pandya v. Cuccinelli

Decision Date13 January 2021
Docket NumberCivil Action No.: 5:20-cv-01541-JMC
PartiesHirenkumar Govindlal Pandya and Purvi Pravinkumar Joshi, Plaintiffs, v. Kenneth Cuccinelli, as the Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services, Defendant.
CourtU.S. District Court — District of South Carolina

Currently before the court is Defendant Kenneth Cuccinelli's Motion to Dismiss for Lack of Jurisdiction. (ECF No. 6.) Plaintiffs Hirenkumar Govindlal Pandya and Purvi Pravinkumar Joshi filed a Brief in opposition to the Motion (ECF No. 9), to which Defendant filed a Reply (ECF No. 11). Also before the court is Plaintiffs' Motion to Expedite Discovery. (ECF No. 10.) Defendant filed a Brief opposing the Motion (ECF No. 14), to which Plaintiffs replied (ECF No. 15). For the following reasons, the court GRANTS in part and DENIES in part Defendant's Motion to Dismiss without prejudice (ECF No. 6), and DENIES Plaintiffs' Motion to Expedite Discovery without prejudice (ECF No. 10).


Joshi and her husband Pandya are Indian citizens currently residing in South Carolina. (ECF No. 1 at 2 ¶¶ 1-2.) This case arises from their application for U Nonimmigrant Status ("U-Visa"). U-Visas are "set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity."1 Victims of Criminal Activity: U Nonimmigrant Status, (last visited Dec. 12, 2020).

In support of his application for a U-Visa, Pandya claims he was feloniously assaulted in 2007 and 2012, reported the crimes to the Orangeburg County Sheriff's Department, and thereafter assisted in the criminal investigations. (ECF No. 1 at 9-10 ¶¶ 49-50.) In August 2017, Plaintiffs allege they submitted U-Visa applications,2 requested work authorization on the face of the applications, and sought pre-waitlist work authorization based on the applications. (Id. at 10 ¶¶ 52-55.) Plaintiffs assert that "Defendant has taken no action on any of these applications from August 14, 2017, to date." (Id. ¶ 55.)

Plaintiffs allege United States Citizenship and Immigration Services ("USCIS") has unreasonably delayed determining whether they should be placed on the U-Visa waitlist (ECF No. 1 at 14-19 ¶¶ 86-134), and has relatedly unreasonably delayed or unlawfully withheld "pre-waiting list" employment authorizations under the Administrative Procedure Act, 5 U.S.C. § 706 (1966) ("APA") (ECF No. 1 at 11-13 ¶¶ 68-85). Plaintiffs further seek to disclose prior requests they sent to USCIS under the Freedom of Information Act, 5 U.S.C. § 552 (2016) ("FOIA")3 (ECF No. 1 at19-20 ¶¶ 135-141), and ask for attorney's fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412 (2019) ("EAJA") (ECF No. 1 at 20 ¶¶ 142-146).

Defendant subsequently filed the instant Motion to Dismiss, contending that "courts lack subject matter jurisdiction over APA claims that request review of matters committed to an agency's discretion" under Federal Rule of Civil Procedure 12(b)(1). (ECF No. 6 at 2.) Alternatively, Defendant posits that Plaintiffs have not stated a claim under Rule 12(b)(6). (Id. at 3.) As a consequence, Defendant requests the court deny fees and costs under the EAJA because Plaintiffs are not the prevailing parties in this action. (Id. at 4.)


"Federal courts are courts of limited subject matter jurisdiction, and as such there is no presumption that the court has jurisdiction." Pinkley, Inc. v. City of Fredrick, Md., 191 F.3d 394, 399 (4th Cir. 1999). A Rule 12(b)(1) motion for lack of subject matter jurisdiction raises the fundamental question of whether a court has jurisdiction to adjudicate the matter before it. FED. R. CIV. P. 12(b)(1). In determining whether jurisdiction exists, the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). "The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (citation omitted). The plaintiff bears the burden of proof on questions of subject matter jurisdiction. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted "challenges the legal sufficiency of a complaint." Francis v. Giacomelli, 588 F.3d 186, 192 (4thCir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) ("A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."). To be legally sufficient, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2).

A Rule 12(b)(6) motion "should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6) motion, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (citing Twombly, 550 U.S. at 556). Courts commonly refer to this as the Twombly/Iqbal standard for federal pleadings, which a plaintiff needs to overcome to survive a Rule 12(b)(6) dismissal. Brown-Thomas v. Hynie, 412 F. Supp. 3d 600, 605 (D.C. 2019).


Defendant essentially seeks to dismiss Plaintiffs' claims regarding USCIS's pace of U-Visa waitlist adjudication and lack of a separate adjudication process to determine "pre-waitlist" eligibility under two theories: (1) the court lacks subject matter jurisdiction under Rule 12(b)(1); and (2), alternatively, Plaintiffs have failed to state a claim under Rule 12(b)(6).

A foreign national may only accept employment within the United States if they are a lawful permanent resident or "otherwise authorized" to be employed. 8 U.S.C. § 1324a(h)(3) (2004); 8 C.F.R. § 274a.12 (2020). U-Visa petitioners may be "otherwise authorized" for employment by obtaining an Employment Authorization Document ("EAD") in three circumstances during the U-Visa application process: (1) when issued a U-Visa; (2) if placed on the waitlist to receive a U-Visa (i.e., USCIS concludes a pending application is "approvable" but for Congress' limitation allowing only 10,000 U-Visas to be issued per year);4 or (3) if, before being placed on the waitlist, USCIS determines the applicant has a "bona fide" pending application (also referred to as the "pre-waitlist"). (See ECF No. 6 at 5-11.) Yet USCIS has not implemented a separate program to determine pre-waitlist eligibility, despite Congress' mandate that USCIS "may" do so. (Id. at 9-11.) Thus options (1) and (2) above are currently the only means in which U-Visa applicants may obtain work authorization.

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

The APA states that, "[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." 5 U.S.C. § 555 (1966) (emphasis added). "Moreover, § 706 of the APA states that the reviewing court "shall compel agency action unlawfully withheld or unreasonably delayed." Solis v. Cissna, No. 9:18-CV-00083-MBS, 2018 WL 3819099, at *4 (D.S.C. Aug. 10, 2018) (citing 5 U.S.C. § 706(1)).

Yet the court's review of agency action is limited. The court may hear unreasonable delay claims against an agency only "so long as judicial review is not precluded by statute and agencyaction is not committed to agency discretion by law. Solis, 2018 WL 3819099, at *4 (citing 5 U.S.C. §§ 701-706; Asheville Tobacco Bd. of Trade, Inc. v. Fed. Trade Comm'n, 294 F.2d 619, 627 (4th Cir. 1961)); see Gonzalez v. Cissna, 364 F. Supp. 3d 579, 584 (E.D.N.C. 2019) (explaining courts "cannot review 'any . . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security'") (citing 8 U.S.C. § 1252(a)(2)(B)(ii) (2005) (emphasis added)); Patel v. Cissna, 400 F. Supp. 3d 1373, 1379 (M.D. Ga. 2019) ("It is well established that judicial compulsion of agency action is limited to the enforcement of 'specific, unequivocal commands' that the agency had 'no discretion whatever' to deny." (citation and internal marks omitted)).

(1) Pace of U-Visa Waitlist Adjudication

To start, the court finds it has subject matter jurisdiction over Plaintiffs' claim related to the pace of USCIS's U-Visa waitlist adjudication. Plaintiffs dispute whether such adjudication has occurred within a reasonable time. At the time the...

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