Reyes Briseda et al v. Bardini et al

Filing 25

ORDER by Judge Thomas S. Hixson granting 14 Defendants' Motion for Summary Judgment. The Court hereby GRANTS Defendants' motion for summary judgment and OVERRULES Plaintiffs' evidentiary objections. (tshlc2, COURT STAFF) (Filed on 5/8/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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JUAN REYES BRISEDA, et al.,

Case No. 23-cv-00495-TSH

Plaintiffs,

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ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

v.

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Re: Dkt. No. 14

DANIELLE LEHMAN, et al.,
Defendants.

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I.

INTRODUCTION

On February 2, 2023, Plaintiffs Juan Reyes Briseda1 and Maria de los Angeles Zamudio

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Gonzalez filed this case against Defendants Emilia M. Bardini,2 Alejandro Mayorkas, and Merrick

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Garland, seeking to compel Defendants to schedule asylum interviews for Plaintiffs. ECF No. 1

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[Complaint] ¶ 13.
Pending before the Court is the Defendants’ motion for summary judgment. ECF No. 14

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[Defs.’ Mot. for Summ. J.]. Plaintiffs filed an Opposition (ECF No. 18) and Defendants filed a

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Reply (ECF No. 23). For the reasons stated below, the Court GRANTS Defendants’ motion.3

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Reyes Briseda’s asylum application lists his name as Juan Reyes Breceda. ECF No. 1-1.
In this order, the Court adopts the alternative spelling used in the caption of the
complaint.
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Danielle Lehman is substituted for Emilia Bardini as the Director of the San Francisco Asylum
Office.
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The parties consent to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos. 5,
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II.

United States District Court
Northern District of California

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BACKGROUND

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Plaintiffs are Mexican citizens who filed applications for asylum in November 2020. ECF

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No. 1-1. Plaintiffs allege that they requested the scheduling of interviews with the Asylum Office

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on December 22, 2021 and September 15, 2022. Compl. ¶ 9. Because Defendants have not

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scheduled an interview between Plaintiffs and an Asylum Officer, Plaintiffs filed this lawsuit on

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February 2, 2023, bringing claims for mandamus relief under the Administrative Procedure Act

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(“APA”), 5 U.S.C. § 701 et seq, and the Mandamus Act, 28 U.S.C. § 1361, to compel Defendants

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to act on their asylum applications.4 Compl. ¶ 1. Plaintiffs ask that the Court enter an order

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compelling Defendants to issue an Asylum Office interview scheduling notice and awarding

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Plaintiffs reasonable attorney’s fees and costs. Id. ¶ 13. The defendants are relevant government

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officials, including the Director of the San Francisco Asylum Office, DHS secretary, and U.S.

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Attorney General.

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Under the Immigration and Nationality Act (“INA”), a noncitizen “who is physically

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present in the United States or who arrives in the United States” may apply to receive asylum in

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the United States, subject to certain exceptions. 8 U.S.C. § 1158(a). Applicants are eligible to

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apply for employment authorization, and are deemed to be “lawfully present” for the purpose of

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applying for certain benefits while their applications for asylum remain pending. 8 C.F.R. §

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208.7(a)(1); e.g., 8 C.F.R. § 1.3(a)(5) (deeming asylum applicants “lawfully present” for the

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purpose of applying for Social Security benefits). Employment authorizations are renewable for a

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continuous period, in increments of up to five years. 8 C.F.R. § 208.7(b); USCIS Policy Manual,

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Vol. 10, Part A, Ch. 4, § C.1, https://www.uscis.gov/policy-manual/volume-10-part-a-chapter-4.

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In the early 1990s, the former Immigration and Naturalization Service (“INS”) began

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automatically mailing employment authorizations to asylum applicants while their applications

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were pending, which would remain valid until the applications were fully adjudicated. ECF No.

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15 [Decl. of John L. Lafferty] ¶ 15. As processing times increased, so did the filing of non-

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12, 13.
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Plaintiffs also bring this action pursuant to 8 U.S.C. § 1447, which concerns hearings on denials
of applications for naturalization. Because Plaintiffs do not allege that they ever filed applications
for naturalization, the Court does not evaluate their claims under § 1447.
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United States District Court
Northern District of California

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meritorious or frivolous asylum claims to secure employment authorization. Id. By 1994, there

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were over 400,000 pending asylum applications for applicants who were physically present in the

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U.S. and not in removal proceedings (“affirmative asylum applications.”) Id. ¶¶ 6, 15. In

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response, in 1995, the INS implemented the “Last-In-First-Out” (“LIFO”) scheduling system,

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under which recently filed cases would be scheduled for interview before older cases. Id. ¶ 17.

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The INS reasoned that the possibility that asylum cases would be adjudicated quickly would

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discourage people from filing non-meritorious claims just to obtain work authorization for the

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pendency of their applications. Id.

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The LIFO policy reduced the backlog of asylum applications from over 464,100

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applications at the end of fiscal year 1995 to just over 4,200 applications that had been pending

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over six months by the beginning of fiscal year 2013. Id. ¶ 18. However, a surge in credible and

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reasonable fear and unaccompanied child cases diverted Asylum Officers from adjudicating other

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types of asylum applications, undermining the effectiveness of the LIFO system. Id. ¶¶ 19-21. In

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December 2014, USCIS announced it would temporarily adopt a “First-In-First-Out” (“FIFO”)

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policy, under which asylum applications were processed in the order in which they were filed. Id.

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¶ 21. In the years following the adoption of FIFO, the number of applications for employment

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authorization documents by initial pending asylum applicants increased more than sixfold, and

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USCIS saw a substantial increase in the number of non-meritorious asylum applications. Id. ¶ 22.

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On January 31, 2018, USCIS announced it would reinstate the LIFO scheduling system, which

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remains in place today. Id. ¶ 24, 60. Following the return to LIFO, the rate of growth in the

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backlog of asylum applications decreased. Id. ¶ 29.

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III.

LEGAL STANDARD

Summary judgment is proper where there is “no genuine dispute as to any material fact and

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the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving

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for summary judgment bears the initial burden of identifying those portions of the pleadings,

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discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that may affect the outcome

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of the case, and a dispute as to a material fact is genuine if there is sufficient evidence for a
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reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 248 (1986).

United States District Court
Northern District of California

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If the moving party meets its initial burden, the opposing party must then set forth specific

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facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S.

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at 250. All reasonable inferences must be drawn in the light most favorable to the nonmoving

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party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). However, it is not the

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task of the Court “to scour the record in search of a genuine issue of triable fact.” Keenan v.

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Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden “to identify with

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reasonable particularity the evidence that precludes summary judgment.” Id.; Cafasso, U.S. ex rel.

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v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (The nonmoving party “must

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set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.”)

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(citations omitted). Thus, “[t]he district court need not examine the entire file for evidence

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establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with

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adequate references so that it could conveniently be found.” Carmen v. S.F. Unified Sch. Dist.,

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237 F.3d 1026, 1031 (9th Cir. 2001); Christian Legal Soc. Chapter of Univ. of Cal. v. Wu, 626

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F.3d 483, 488 (9th Cir. 2010) (“Judges are not like pigs, hunting for truffles buried in briefs.”)

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(citations omitted).

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“While the evidence presented at the summary judgment stage does not yet need to be in a

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form that would be admissible at trial, the proponent must set out facts that it will be able to prove

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through admissible evidence.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010)

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(citing Fed. R. Civ. P. 56(c) (“An affidavit or declaration used to support or oppose a motion must

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be made on personal knowledge, set out facts that would be admissible in evidence, and show that

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the affiant or declarant is competent to testify on the matters stated.”)). If the nonmoving party

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fails to identify such evidence, or if it offers evidence that is “merely colorable, or is not

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significantly probative, summary judgment may be granted.” Anderson, 477 U.S. 242, 249–50

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(1986) (citations omitted).

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IV.

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Mandamus Act

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Defendants argue that mandamus relief is unavailable in this case. Defs.’ Mot. for Summ.

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J. at 13. The Mandamus Act provides that “[t]he district courts shall have original jurisdiction of

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any action . . . to compel an officer or employee of the United States or an agency thereof to

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perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. “Mandamus is an extraordinary remedy

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granted in the court’s sound discretion. For mandamus relief, three elements must be satisfied: (1)

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the plaintiff’s claim is clear and certain; (2) the [defendant official’s] duty is ministerial and so

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plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available.”

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United States District Court
Northern District of California

A.

DISCUSSION

Johnson v. Reilly, 349 F.3d 1149, 1154 (9th Cir. 2003) (internal quotations and citations omitted).
Courts have found that 8 U.S.C. § 1158(d)(5)(A), governing procedures regarding the

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consideration of asylum applications, cannot provide a basis for mandamus relief because the INA

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expressly precludes a private right of action to enforce those timing requirements. See 8 U.S.C. §

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1158(d)(7) (“Nothing in this subsection shall be construed to create any substantive or procedural

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right or benefit that is legally enforceable by any party against the United States or its agencies or

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officers or any other person.”). “The Ninth Circuit has held that identical language in other

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immigration statutes foreclose[s] mandamus relief.” Alaei v. Holder, No. 2:15-cv-08906-ODW-

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JPR, 2016 WL 3024103, at *2, (C.D. Cal. May 26, 2016) (citing Campos v. I.N.S., 62 F.3d 311,

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313-14 (9th Cir. 1995)); see also Fang Yan v. Dir. of Los Angeles Asylum Off. for the United

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States Citizenship & Immigration Servs., No. 22-cv-05846-ODW-MRW, 2023 WL 4053410, at

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*5-6, (C.D. Cal. June 16, 2023) (same); Teymouri v. U.S. Citizenship & Immigration Servs., No.

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CV 22-7689 PA-JCX, 2022 WL 18717560, at *5, (C.D. Cal. Jan. 31, 2022) (same); Ma v. Jaddou,

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No. 2:22-cv-04210-MWF-KS, 2022 WL 17254783 at *2, (C.D. Cal. Sep. 26, 2022) (“Because

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Plaintiff has failed to state a claim for violation of the INA for which relief can be granted,

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Plaintiff has failed the first prong of the Mandamus Act that there is a clear and certain claim.”);

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Pesantez v. Johnson, No. 15-CV-1155-BMC, 2015 WL 5475655, at *2 (E.D.N.Y. Sept. 17, 2015)

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(concluding that “[i]t is beyond serious dispute that mandamus . . . is unavailable to compel

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compliance with a statutory obligation when the underlying statute expressly disclaims a private
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right of action”). Plaintiffs do not dispute this point or suggest there is any other basis for

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mandamus relief. ECF No. 18 at 2-3. Accordingly, the Court finds that Plaintiffs cannot state a

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claim under the Mandamus Act, and that Defendants are entitled to summary judgment on this

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claim.

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B.

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Defendants argue that the Court lacks subject matter jurisdiction to hear Plaintiffs’ APA

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claims. Defs.’ Mot. for Summ. J. at 14-15. “Repeatedly, courts in the Ninth Circuit that have

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addressed § 1158(d)(7) have declined to conclude that a private right of action exists” to enforce

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the timing requirements of 8 U.S.C. § 1158(d)(5)(A). Varol v. Radel, 420 F. Supp. 3d 1089, 1095-

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United States District Court
Northern District of California

Subject Matter Jurisdiction

96 (S.D. Cal. 2019); Yan, 2023 WL 4053410, at *2-3; Teymouri, 2022 WL 18717560, at *3.
At the same time, courts in the Ninth Circuit have found that this “prohibition against a

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private right of action to enforce the timing requirements set forth in Section 1158(d)(5)(A) does

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not deprive the Court of subject matter jurisdiction[.]” Yan, 2023 WL 4053410, at *3. These

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courts have reasoned that “the prohibition against a private right of action articulated in Section

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1158(d)(7) does not preclude judicial review of USCIS’s inaction under the APA,” nor does it

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“include the jurisdiction-stripping language found elsewhere in the [Immigration and Nationality

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Act (‘INA’)].” Id. at *3; see also Varol, 420 F. Supp. 3d at 1096 (distinguishing from other

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subsections of the INA that expressly preclude judicial review and finding the court retains subject

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matter jurisdiction); Kang v. Jaddou, No. 2:21-cv-09488-RGK-E, 2022 WL 2189634 at *2 (C.D.

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Cal. Apr. 25, 2022) (same).

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Defendants maintain that the Court lacks subject matter jurisdiction because DHS “is not

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compelled to act within a certain time period,” ECF No. 23 at 4. But “the APA requires an

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administrative agency to adjudicate matters presented to it within a ‘reasonable time.’” Varol, 420

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F. Supp. 3d at 1096 (quoting 5 U.S.C. § 555(b)). “Thus, courts in this Circuit have repeatedly

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found that even if there is no private right of action to enforce the time frames set forth in 8 U.S.C.

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§ 1158(d)(5)(A), the court may still review the agency’s actions under the APA, which specifies

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that an agency shall not unreasonably delay any discrete agency action.” Su v. Mayorkas, — F.

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Supp. 3d —, No. 23-cv-00566-KAW, 2023 WL 7209630, at *4 (N.D. Cal. Oct. 17, 2023) (quoting
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United States District Court
Northern District of California

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Kang, 2022 WL 2189634, at *2); see 5 U.S.C. § 706(1) (a “reviewing court shall . . . compel

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agency action unlawfully withheld or unreasonably delayed”). Plaintiffs’ complaint makes no

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mention of the 45-day timeline set forth in 8 U.S.C. § 1158(d)(5)(A). Rather, their complaint is

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grounded in the notion that the existing delay is unreasonable. See Compl. ¶¶ 11 (noting the

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“alleged delay in the issuance of an interview scheduling notice”), 12 (alleging “Plaintiffs are

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harmed because of the delay of defendants”). See also Kang, 2022 WL 2189634, at *2 (denying

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Defendants’ motion to dismiss Plaintiff’s APA claim for lack of subject matter jurisdiction

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pursuant to Rule 12(b)(1) and noting that “Plaintiff does not seek to enforce the 45-day time

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period. Rather, Plaintiff seeks a determination of unreasonable delay, and an order compelling

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Defendants to place her asylum application in the priority dictated by Defendants’ agency policy

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and grant her an interview.”). Accordingly, the Court finds it has jurisdiction to review Plaintiffs’

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APA claims.

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C.

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Administrative Procedure Act
Finally, Defendants argue that Plaintiffs cannot establish an APA claim. To determine

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whether agency delay is unreasonable, courts typically apply the factors set out in

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Telecommunications Research and Action Center v. FCC (“TRAC factors”):

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(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 the delay; and (6) the
court need not find any impropriety lurking behind agency lassitude
in order to hold that agency action is unreasonably delayed.

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750 F.2d 70, 80 (D.C. Cir. 1984) (cleaned up); see also, e.g., Brower v. Evans, 257 F.3d 1058,

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1068 (9th Cir. 2001) (applying TRAC factors in assessing whether National Marine Fisheries

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Service unreasonably delayed congressionally mandated stress studies). “The most important

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TRAC factor is the first factor, the ‘rule of reason,’ though it, like the others, is not itself

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determinative.” Cmty. Voice v. United States EPA (In re Cmty. Voice), 878 F.3d 779, 786 (9th
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Cir. 2017). “[C]ourts measure the period of delay from the last government action to the issuance

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of the opinion.” Dang v. Mayorkas, No. 23-cv-02212-LB, 2023 WL 8007993, at *4 (N.D. Cal.

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Nov. 17, 2023) (internal quotations omitted). Accordingly, the delay here is measured from

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November 2020, when DHS acknowledged receipt of Plaintiffs’ asylum applications. The Court

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finds the TRAC factors favor Defendants, and that summary judgment must be granted in

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Defendants’ favor.

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The first TRAC factor “requires that the time it takes for the agency to act is governed by a

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‘rule of reason.’” Su, 2023 WL 7209630, at *5 (quoting Ray v. Cuccinelli, No. 20-cv-06279-JSC,

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United States District Court
Northern District of California

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Rule of Reason

2020 WL 6462398 at *8, 2020 (N.D. Cal. Nov. 3, 2020)).
The Court finds that the LIFO policy is a rule of reason. Defendants have explained that

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LIFO was implemented to reduce the backlog of asylum applications and to discourage

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individuals from filing frivolous or non-meritorious applications to obtain work authorization. See

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Lafferty Decl. ¶¶ 15, 17, 29. Defendants have demonstrated LIFO’s practical effects, including

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considerably reducing the backlog and deterring the filing of non-meritorious applications. Id.

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¶¶ 18, 22. Defendants have also demonstrated how the temporary adoption of FIFO beginning in

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2014 led to a substantial increase in non-meritorious asylum applications and in the backlog, id.

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¶¶ 22, 34, and how the current LIFO policy and priority system for scheduling affirmative asylum

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interviews is intended to stem the backlog. Id. ¶ 24-26, 60.

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In response, Plaintiffs contend that LIFO is not a rule of reason because the policy has

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failed to address what Plaintiffs identify as systemic problems with the asylum process. ECF No.

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18 at 5. To dispute LIFO’s reasonableness and efficacy, Plaintiffs point to increases in

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backlogged asylum applications in recent years despite the 2018 reimplementation of LIFO. Id.

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But satisfaction of the first TRAC factor requires only that the policy be governed by an

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“identifiable rationale.” Ray, 2020 WL 6462398, at *9. Defendants also explained that the surge

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in affirmative asylum applications in recent years comes primarily from people whose countries of

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origin are “experiencing well-documented political and humanitarian crises,” and that “LIFO is

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not designed to deter applications made in good faith.” Lafferty Decl. ¶¶ 35-36.
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Accordingly, the Court finds that a rule of reason governs the LIFO policy, and that the
first TRAC factor favors Defendants.

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2.
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Congressional Timetable

“The second TRAC factor considers whether Congress has provided an indication of the
speed with which it expects an agency to act.” Su, 2023 WL 7209630, at *6 (quoting Jain v.

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Jaddou, No. 21-cv-03115-VKD, 2023 WL 2769094 at *6 (N.D. Cal. Mar. 31, 2023)). Courts
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have consistently acknowledged that Congress has “provided a clear timetable for the processing
of asylum applications, including 8 U.S.C. § 1158(d)(5)(A)’s expectation that interviews be

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scheduled within 45 days.” Id. (citing Varol, 420 F. Supp. 3d at 1097). However, those same
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United States District Court
Northern District of California

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courts have found that “the plain language of 8 U.S.C. § 1158(d)(5)(A) clarifies that the timing
requirements are not mandatory” and that the timetable “does not outweigh the rule of reason

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which supports the USCIS policies which have caused the challenged delays.” Varol, 420 F.
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Supp. 3d at 1097. Rather, Congress has “indicated that USCIS retains limited discretion as to the
timing of the adjudication of asylum applications under exceptional circumstances.” Yan, 2023

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WL 4053410, at *4.
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In deciding this factor, courts have also considered the length of the delay, and found
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reasonable even delays of over five years. See Teymouri, 2022 WL 18717560, at *4 (“Moreover,

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while Plaintiff’s application has been pending for over five years, courts have found similar delays
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to be reasonable.”); Yan, 2023 WL 4053410, at *4 (finding a pending application of over four
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years to be reasonable); Singh, 2023 WL 4669864, at *2. While the Court does not seek to
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downplay the now over three-year delay Plaintiffs have endured since filing their asylum
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applications in 2020, the length of this delay is not unreasonable under the TRAC factors.
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Thus, the Court finds the second TRAC factor favors Defendants.
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3.

Human Health and Welfare, and Nature of Interests

“The third and fifth TRAC factors, which overlap, concern ‘whether human health and
welfare are at stake and the nature and extent of the interests prejudiced by delay.’” Su, 2023 WL

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7209630, at *6 (quoting Yan, 2023 WL 4053410, at *5).
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United States District Court
Northern District of California

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Here, Plaintiffs assert that they are “greatly damaged” by Defendants’ delay and “refusal”

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to schedule their asylum interviews. Compl. ¶ 12. However, Plaintiffs provide no evidence

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supporting the damage they allege. See generally Compl.; ECF No. 18. Again, the Court does not

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seek to minimize the delay Plaintiffs have faced, but courts have repeatedly found that these TRAC

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factors favor the defendants, even where plaintiffs have alleged more specific harms. For

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example, the plaintiff in Yan alleged that the four-year delay in processing her asylum application

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caused her “fear, despair, preoccupation and uncertainty,” and deprived her of “the opportunity to

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timely obtain the substantial and unique benefits of asylum status,” such as the freedom of

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movement and travel. Yan, 2023 WL 4053410, at *5. Still, the court in Yan found that “any

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prejudice Yan faces from delay is likewise faced by all asylum applications in similar positions,”

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and that “the risk to human health and welfare and potential prejudice from delay in the processing

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of the Application favor denying relief.” Id.; see also Varol, 420 F. Supp. 3d at 1097

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(acknowledging “the difficulty in waiting for the asylum interview and the processing of Plaintiff's

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application,” but finding that these factors favored the defendants as “Plaintiff continues to reside

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in the United States pending the processing of her application and is authorized to work”); Alaei,

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2016 WL 3024103, at *3 (finding “no human health and welfare at stake in the delay as Plaintiff

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can legally live and work in the United States pending adjudication of her application”); Teymouri,

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2022 WL 18717560, at *4 (finding allegations that “the unexplained delay [was] extremely

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stressful for Plaintiff” and causing “significant emotional damage due to the uncertainty and worry

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that he is suffering with no hope on the horizon” were insufficient, and that such “allegations

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represent an extremely minimal showing of risk to human health or welfare” and are “inherent in

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the process of seeking asylum.”). The Court acknowledges that Mr. Reyes Briseda’s renewal

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request for work authorization currently remains pending, as he failed to timely request its

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renewal. Defs.’ Mot. at 22. Still, Plaintiffs do not allege that they have been damaged by Mr.

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Reyes Briseda’s ongoing wait for renewed work authorization. See generally Compl.; ECF No.

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18. Meanwhile, Ms. Zamudio Gonzales remains authorized to work, and both Plaintiffs can

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remain in the United States without fear of removal while their applications are pending

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adjudication. See Defs.’ Mot. for Summ. J. at 12, 22.
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United States District Court
Northern District of California

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Thus, the Court finds the third and fifth TRAC factors favor Defendants.

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4.

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The fourth factor “consider[s] the agency’s competing priorities.” Indep. Mining Co., Inc.

Effect of Expediting Delayed Action

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v. Babbitt, 105 F.3d 502, 510 (9th Cir. 1997). Here, the agency’s competing priorities are the

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other asylum applications awaiting adjudication, including pending applications that were filed

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before Plaintiffs’. Accordingly, “granting relief to the Plaintiff[s] simply moves [them] to the

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front of the line at the expense of all other applicants who may not have filed an application for

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mandamus relief.” Varol, 420 F. Supp. 3d at 1098.

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Courts have declined to grant relief “[u]nder such circumstances, where a judicial order

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putting an individual at the head of the queue would simply move all others back one space and

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produce no net gain.” Su, 2023 WL 7209630, at *7 (quoting Mashpee Wampanoag Tribal

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Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003)) (internal quotation marks omitted);

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see also Varol, 420 F. Supp. 3d at 1098 (explaining that “it was sufficient to deny relief based on

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the fourth factor alone” where “advancing [the plaintiff’s] asylum application for interview and

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adjudication may negatively affect other applicants in a similar position”); Yan, 2023 WL

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4053410, at *5 (same); Teymouri, 2022 WL 18717560, at *5 (“advancing Plaintiff’s Application

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would not serve a higher or competing priority, but would instead merely delay the adjudication of

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all other applicants”). Thus, the Court finds the fourth TRAC factor favors Defendants.

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5.

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“The final factor considers whether there was any impropriety by the agency.” Su, 2023

Impropriety

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WL 7209630, at *7. Plaintiffs concede they do not know of any impropriety by Defendants, ECF

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No. 18 at 7, and the Court has not found any. Accordingly, this factor is neutral. Id.; Yan, 2023

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WL 4053410, at *5.

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6.

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Taken together, the Court finds that most of the TRAC factors favor Defendants, and weigh

Conclusion

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against granting relief to Plaintiff under the APA. Accordingly, Defendants are entitled to

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summary judgment on Plaintiffs’ APA claims.

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D.

Plaintiffs also bring this action pursuant to 28 U.S.C. § 2201, which allows courts to issue

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declaratory judgments in cases within the Court’s jurisdiction. Compl. ¶ 1; 28 U.S.C. § 2201(a).

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Because the Court finds Defendants are entitled to summary judgment under the APA and

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Mandamus Act, the Court finds Plaintiffs are likewise not entitled to declaratory relief.

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E.

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United States District Court
Northern District of California

Declaratory Relief

Evidentiary Objections
Finally, Plaintiffs in their opposition raise several evidentiary objections to the ten exhibits

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Defendants attached to their motion for summary judgment. ECF No. 18 at 7. Plaintiffs argue

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that all of Defendants’ exhibits constitute hearsay and do not fall under an exception, are lacking

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in foundation and personal knowledge, call for speculation, and are unduly prejudicial. Id. “But

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at the summary judgment stage, we do not focus on the admissibility of the evidence’s form. We

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instead focus on the admissibility of its contents.” Sandoval v. Cty. of San Diego, 985 F.3d 657,

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666 (9th Cir. 2021) (quoting Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)); see also

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Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (“[a]t summary judgment, a

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party does not necessarily have to produce evidence in a form that would be admissible at trial”)

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(internal quotations omitted); Garlick v. Cty. of Kern, 167 F. Supp. 3d 1117, 1125 (E.D. Cal.

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2016) (summarily dismissing blanket objections to evidence in support of motions for summary

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judgment based on relevance, hearsay, lack of foundation, lack of personal knowledge, prejudice,

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improper character evidence, and assuming facts not in evidence); Fed. R. Civ. Pro. 56(c)(4) (“An

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affidavit or declaration used to support or oppose a motion must be made on personal knowledge,

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set out facts that would be admissible in evidence, and show that the affiant or declarant is

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competent to testify on the matters stated.”). The Court therefore overrules Plaintiffs’ blanket

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objections and declines to exclude these exhibits on these grounds. Regardless, even if the Court

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excluded all of the exhibits Plaintiffs objected to, it would still grant summary judgment anyway,

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as this order does not cite or rely on any of those exhibits.

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V.

CONCLUSION

Based on the analysis above, the Court hereby GRANTS Defendants’ motion for summary
judgment and OVERRULES Plaintiffs’ evidentiary objections.
IT IS SO ORDERED.

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Dated: May 8, 2024

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THOMAS S. HIXSON
United States Magistrate Judge

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United States District Court
Northern District of California

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