Vulupala v. Barr, Civil Action No. 19-378 (ABJ)

Decision Date07 February 2020
Docket NumberCivil Action No. 19-378 (ABJ)
Citation438 F.Supp.3d 93
Parties Prithvi VULUPALA, Plaintiff, v. William P. BARR, in his official capacity as Attorney General of the United States, et al., Defendants.
CourtU.S. District Court — District of Columbia

Jennifer E. Nimer, Nimer Law LLC, Powell, OH, for Plaintiff.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff has filed a petition for writ of mandamus asking the Court to order the defendants, U.S. Attorney General William P. Barr, U.S. Secretary of State Michael R. Pompeo, Assistant Secretary for Consular Affairs Carl Risch, Acting Secretary of Homeland Security Chad Wolf,1 Consul General-U.S. Consulate-Hyderabad, India Katherine Hadda, and Consular Officers John Does # 1–10, to perform their non-discretionary duty to adjudicate his visa application. See generally Compl. [Dkt. # 1]. The petition is combined with a complaint that seeks declaratory and injunctive relief under section 706(1) et seq. , of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1) et seq. ; in it, plaintiff asks the Court to declare that since September 2018, defendants have unreasonably delayed final adjudication of his H-1B work visa application, and to compel them to make the awaited determination. Compl. at 19.

Defendants have filed a motion to dismiss for lack of subject matter jurisdiction, arguing that plaintiff's claims are foreclosed by the doctrine of consular nonreviewability. Defs.' Mot. to Dismiss [Dkt. # 7] ("Defs.' Mot."); Defs.' Mem. of P. & A. in Supp. of Defs.' Mot. [Dkt. #7-1] ("Defs.' Mem."). The motion will be denied because the doctrine applies to final decisions made by the agency, and plaintiff's application is still under review.

BACKGROUND

Plaintiff Prithvi Vulupala, a citizen of India, entered the United States in 2013 on an F-1 visa, which allowed him to complete a master's degree at a university in Texas. Compl. ¶¶ 30, 31. In 2016, after completing additional optional training, plaintiff began working for 9to9 Software Solutions, LLC in the United States as a Technical Lead/SAN Engineer. Compl. ¶ 32.

In August 2018, plaintiff returned to India to visit his family. Compl. ¶ 34. While there, he began the process of applying for an H-1B visa under the Immigration and Nationality Act ("INA"). Compl. ¶ 34. An H-1B visa authorizes American employers to hire foreign workers trained in specialty occupations for a temporary period of time. 8 U.S.C. § 1101(a)(15)(H)(i)(b) ; 8 C.F.R. § 214.2(h)(1)(ii)(B). As a necessary first step, 9to9 Software submitted an I-129 Petition for Nonimmigrant Worker on plaintiff's behalf on April 13, 2016, and it was approved. Compl. ¶¶ 22, 32; Ex. A to Notice of Pl.'s Position [Dkt. # 13-1].

On September 5, 2018, plaintiff participated in a mandatory visa interview at the U.S. consulate in Hyderabad, India. Compl. ¶ 35. He alleges that at the conclusion of the interview, he was told that "everything looked good." Compl. ¶ 35. On September 19, 2018, plaintiff received an email from the consulate asking him to complete a form containing supplemental questions, which he submitted on September 21, 2018. Compl. ¶ 36. In the interim, on September 20, 2018, plaintiff "received his passport back from the consulate with a section 221(g) visa refusal2 stating that his application was subject to further administrative processing." Compl. ¶ 38.

Plaintiff filed this action on February 13, 2019, approximately five months after he was interviewed at the consulate. Compl. ¶ 39. He alleges that his visa remains "in administrative processing," despite his repeated contacts with the consulate, his employer's efforts to inquire about his visa status, and inquiries made by two Members of Congress. Compl. ¶¶ 39, 44, 45, 46.

The I-129 petition submitted by plaintiff's employer expired on September 11, 2019, and on January 6, 2020, the Court issued a Minute Order directing the parties to "file separate notices ... of their respective positions on whether the expiration ... has any bearing on this matter." Minute Order of Jan. 6, 2020. On January 13, 2020, plaintiff informed the Court that a new I-129 petition had been filed, and he stated in that pleading that he had been re-interviewed by consular officials in Hyderabad twice since the parties completed briefing the motion to dismiss. Notice of Pl.'s Position [Dkt. # 13] ("Pl.'s Notice") at 1. He added that at one of the interviews – on November 26, 2019 – a consular officer requested additional documents, which he promptly provided. Pl.'s Notice at 1. Since that time, plaintiff has not received any additional communications about his application. Pl.'s Notice at 2.

Plaintiff alleges that the delay in adjudicating his visa is unreasonable and, therefore it violates sections 555 and 706 of the APA. Compl. ¶¶ 77–82. While plaintiff is not seeking monetary damages, he asserts that the Court must act because he has suffered and will continue to suffer harm, including the significant disruption of his career, lost income and the financial burden associated with maintaining an empty residence here, and severe emotional distress. Compl. ¶¶ 54–57. His prayer for relief asks for a writ of mandamus and/or an injunction under the APA requiring defendants to adjudicate his visa within fifteen days, declaratory relief that continued failure to adjudicate his application constitutes unlawful agency action, and attorney's fees and other costs. Compl. at 19–20.

Defendants have moved to dismiss the petition and complaint under Federal Rule of Civil Procedure 12(b)(1) on the grounds that the doctrine of consular nonreviewability "precludes judicial review of a consular officer's refusal of a visa application."

Defs.' Mem. at 4. Plaintiff filed an opposition, Pl.'s Opp. to Defs.' Mot. to Dismiss [Dkt. # 10] ("Pl.'s Opp."), defendants replied, Defs.' Reply to Pl.'s Opp. [Dkt. # 12] ("Defs.' Reply"), and the matter is ripe for decision.

STANDARD OF REVIEW

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Shekoyan v. Sibley Int'l Corp. , 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; see also Gen. Motors Corp. v. EPA , 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). "[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement ... no action of the parties can confer subject-matter jurisdiction upon a federal court.’ " Akinseye v. District of Columbia , 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States , 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds , 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics , 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992) ; see also Jerome Stevens Pharms., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005).

ANALYSIS
I. The doctrine of consular nonreviewability does not apply to this case.

The Immigration and Nationality Act of 1952, 8 U.S.C. § 1101, et seq. , governs the visa adjudication process, and it grants "consular officers exclusive authority to review applications for visas." Saavedra Bruno v. Albright , 197 F.3d 1153, 1156–57 (D.C. Cir. 1999), citing 8 U.S.C. §§ 1104(a), 1201(a).

In view of the political nature of visa determinations and of the lack of any statute expressly authorizing judicial review of consular officers' actions, courts have applied what has become known as the doctrine of consular nonreviewability. The doctrine holds that a consular official's decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise.

Id. at 1159. An applicant cannot avoid the impact of this doctrine by artfully casting his complaint in terms of a challenge to the validity of the regulations on which the decision was based or the agency's failure to follow those regulations, see, e.g. , Centeno v. Shultz , 817 F.2d 1212 (5th Cir. 1987) ; Grullon v. Kissinger , 417 F. Supp. 337 (E.D.N.Y. 1976), aff'd 559 F.2d 1203 (2d. Cir. 1977), or merely by invoking the Administrative Procedure Act. See Saavedra Bruno , 197 F.3d. at 1160.3

Defendants point out that plaintiff has alleged that he received "a section 221(g) visa refusal," Defs.' Mem. at 5, and they recite the legal principle that the doctrine of consular nonreviewability divests the Court of subject matter jurisdiction to review a consular officer's refusal of a visa application. Defs.' Mem. at 4. Defendants submit that since "the relief plaintiff seeks requires this court to adjudicate a consular visa decision made in a foreign country, the doctrine of consular nonreviewability bars plaintiff's claims." Defs.' Mem. at 5.

But the motion to dismiss and the complaint seem to be two ships passing in the night. Plaintiff does not seek to challenge or adjudicate the merits of a "decision to issue or withhold" his application, see Saavedra Bruno , 197 F.3d at 1159 ; he complains that...

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