ZEMEKA et al v. HOLDER, JR. et al

Filing 14

MEMORANDUM OPINION AND ORDER denying Defendants' 10 Motion to Dismiss without prejudice. Defendants may file a motion for summary judgment by September 18, 2013; Plaintiffs may oppose by October 4, 2013; and Defendants may reply by October 15, 2013. Signed by Judge James E. Boasberg on 8/28/13. (lcjeb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ERIC DAVID ZEMEKA, et al.,
Plaintiffs,
v.

Civil Action No. 12-1619 (JEB)

ERIC H. HOLDER, JR., Attorney General
of the United States, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiffs Eric and Annie Zemeka were married in March 2010 in Maryland. Annie, an
American citizen, then filed an I-130 petition with the U.S. Citizenship and Immigration Service
to obtain “immediate relative” status for Eric, a native of Cameroon. USCIS denied the petition
on the ground that Eric was permanently barred from obtaining such status because his prior
wife, Sabrina Stephens, had previously filed an I-130 petition for him based on a fraudulent
marriage. Plaintiffs have filed this action asking the Court to find USCIS’s determination
arbitrary and capricious. Defendants have now moved to dismiss, contending Plaintiffs cannot
meet that standard. As neither party bases its pleadings on the administrative record, the Court
will deny the Motion without prejudice and permit Defendants to renew their arguments in a
motion for summary judgment.
The Court has jurisdiction to review a final agency decision denying an I-130 petition on
the basis of marriage fraud under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. See,
e.g., Ginters v. Frazier, 614 F.3d 822, 828-29 (8th Cir. 2010) (finding U.S. District Court has
subject-matter jurisdiction to review USCIS denial of I-130 Petition). Pursuant to the APA, the

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Court reviews agency decisions to determine if they are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). “Summary
judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is
supported by the administrative record and consistent with the APA standard of review.” Loma
Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C .2010) (citing Stuttering
Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007)).
Instead of waiting for summary judgment, however, defendants may have solid grounds
for moving to dismiss complaints in cases brought under the APA. For example, there may be
jurisdictional bars such as standing, finality, or ripeness. See Brown v. FBI, 793 F. Supp. 2d
368, 375-376 (D.D.C. 2011) (standing); West v. Horner, 810 F. Supp. 2d 228, 236-237 (D.D.C.
2011) (finality); Nat’l Wildlife Fed’n v. EPA, No. 13-167, 2013 WL 2112178, at *4-8 (D.D.C.
May 16, 2013) (ripeness). In this case, however, the only argument that Defendants raise is the
merits point that “the Agency’s decision was plainly correct.” Motion at 1, 8, 9, 10. In so doing,
the Court would naturally expect the Government to rely on the administrative record of the
agency’s proceedings. Instead, the only citations the Government offers are ones to the
Complaint and two documents attached thereto. See id. at 2-5 (citing Compl., Attach. 7 (7/31/12
BIA Decision and 10/26/11 USCIS Denial). While it is conceivable that these may be sufficient
to corroborate Defendants’ position, the case becomes substantially muddied by Plaintiffs’
reliance on evidence wholly extrinsic to the agency record: the Zemekas attach two new
affidavits and other documentary evidence in support of their Opposition. See Opp., Exhs. A-F.
Only with Defendants’ Reply is the nearly 700-page administrative record actually filed. See
ECF No. 13. The procedural posture of the case, therefore, is hardly conducive to its resolution.

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This is so because review by this Court under the APA is generally limited to the
administrative record that was before the agency when it reached its decision. Voyageurs Nat’l
Park Ass’n v. Norton, 381 F.3d 759, 766 (8th Cir. 2004). “Under the APA, it is the role of the
agency to resolve factual issues to arrive at a decision that is supported by the administrative
record, whereas the function of the district court is to determine whether or not as a matter of law
the evidence in the administrative record permitted the agency to make the decision it did.”
Cottage Health Sys. v. Sebelius, 631 F. Supp. 2d 80, 89-90 (D.D.C. 2009) (internal quotation
marks omitted).
Section 706 of the APA establishes that “the reviewing court shall . . . review the whole
record or those parts of it cited by a party.” 5 U.S.C. § 706; Pac. Shores Subdivision, California
Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 4 (D.D.C. 2006) (citing Ctr. for
Auto Safety v. Fed. Highway Admin., 956 F.2d 309, 314 (D.C. Cir. 1992)). The Supreme Court
defined “the whole record” to include “the full administrative record” that was before the
decision-makers. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971),
abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). “Limiting review of the
administrative record to only what the agency decision[-]makers directly or indirectly considered
is important. A broad application of the phrase ‘before the agency’ would undermine the value
of judicial review.’” Pac. Shores, 448 F. Supp. 2d at 5. A fair review of an agency decision
therefore requires that a reviewing court “should have before it neither more nor less information
than did the agency when it made its decision.” Walter O. Boswell Mem’l Hosp. v. Heckler, 749
F.2d 788, 792 (D.C. Cir. 1984); see also Hill Dermaceuticals, Inc. v. Food & Drug Admin., 709
F.3d 44, 47 (D.C. Cir. 2013) (“it is black-letter administrative law that in an APA case, a

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reviewing court should have before it neither more nor less information than did the agency
when it made its decision”) (internal quotation marks omitted).
Under exceptional circumstances, courts may permit a party to present “extra-record”
evidence – “evidence outside of or in addition to the administrative record that was not
necessarily considered by the agency.” Pac. Shores, 448 F. Supp. 2d at 5. To invoke this limited
exception, the D.C. Circuit previously required that a party prove the applicability of one of eight
exceptions. See Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). These exceptions are:
(1) when agency action is not adequately explained in the record
before the court; (2) when the agency failed to consider factors
which are relevant to its final decision; (3) when an agency
considered evidence which it failed to include in the record; (4)
when a case is so complex that a court needs more evidence to
enable it to understand the issues clearly; (5) in cases where
evidence arising after the agency action shows whether the
decision was correct or not; (6) in cases where agencies are sued
for failure to take action; (7) in cases arising under the National
Environmental Policy Act; and (8) in cases where relief is at issue,
especially at the preliminary injunction stage.
Id. (internal citations omitted). More recently, these exceptions appear to have been narrowed.
See Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010)
(“The APA limits judicial review to the administrative record except when there has been a
strong showing of bad faith or improper behavior or when the record is so bare that it prevents
effective judicial review”) (internal quotation marks omitted); Axiom Res. Mgmt. v. United
States, 564 F.3d 1374, 1380 (Fed. Cir. 2009) (“Esch’s vitality even within the D.C. Circuit is
questionable in light of more recent opinions by that court which demonstrate a more restrictive
approach to extra-record evidence”); IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C. Cir. 1997)
(listing only four instances in which consideration of extra-record evidence is appropriate). The
presumption against reviewing extra-record evidence has “‘its maximum force when the

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substantive soundness of the agency’s decision is under scrutiny. . . .’” The Cape Hatteras
Access Pres. Alliance v. U.S. Dep’t of Interior, 667 F. Supp. 2d 111 (D.D.C. 2009) (quoting
Esch, 876 F.2d at 991).
Plaintiffs do not explain why their new evidence may appropriately be considered by the
Court under Esch or the more recent cases articulating the standard for extra-record evidence.
They have simply appended these exhibits to their Opposition to “give a better understanding
behind the facts” and “provide an accurate summary of the relevant facts.” See Opp. at 2; see
also id. at 15 (listing exhibits A through F, of which only D was submitted to USCIS). In their
Opposition, moreover, Plaintiffs suggest that they intend to submit “additional evidence to
establish their case” but again provide no justification as to why such evidence could be
introduced. Id. at 13. The appropriate time to have submitted this evidence was in response to
USCIS’s Notice of Intent to Deny, issued September 13, 2011, at which point Plaintiffs were
“afforded the opportunity to . . . submit any additional evidence in support of the visa petition.”
AR 108. Plaintiffs provide no explanation for their untimely submission.
The Court, therefore, believes that the most appropriate course here is to deny the Motion
to Dismiss and require Defendants to renew their arguments in a motion for summary judgment
with citations to the administrative record. Plaintiffs may then oppose, again confining their
citations to the record unless they believe there is some other means to introduce extrinsic
evidence. The Government may then reply. At that point, the Court will be in a position to
determine whether the agency action is supported by the administrative record and is otherwise
consistent with the APA standard of review. Although there are certainly circumstances in
which a court may convert a motion to dismiss into one for summary judgment, see Fed. R. Civ.

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P. 12(d), this is not one of them. It is not the Court’s role in the first instance to sort through the
full record to look for support for each party’s position.
The Court, therefore, ORDERS that:
1. Defendants’ Motion is DENIED WITHOUT PREJUDICE; and
2. Defendants may file a motion for summary judgment by September 18, 2013;
Plaintiffs may oppose by October 4, and Defendants may reply by October 15.
IT IS SO ORDERED.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 28, 2013

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