Northwest Immigrant Rights Project et al v. United States Citizenship and Immigration Services et al

Filing 95

ORDER signed by Judge James L. Robart. The court GRANTS Defendants' motion to dismiss the 90-Day Plaintiffs' and 90-Day Subclass's claims (Dkt. # 88 ), DISMISSES those claims as moot, and GRANTS in part and DENIES in part 30-Day Pl aintiffs' motion for class certification (Dkt. # 82 ). The court APPOINTS A.A., Mr. Machic Yac, and W.H. as class representatives and DIRECTS the parties to review Rule 23(g), meet and confer, and brief the appointment of class counsel in the manner described above. Finally, the court DIRECTS the Clerk to update the docket to reflect substitution of government officials sued in their official capacities. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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WILMAN GONZALEZ ROSARIO,
et al.,

CASE NO. C15-0813JLR
ORDER

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Plaintiffs,
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v.
UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES,
et al.,

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Defendants.
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I.

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INTRODUCTION

Before the court are two motions: (1) a partial motion to dismiss (3d MTD (Dkt.
# 88)) by Defendants United States Citizenship and Immigration Services (“USCIS”);
United States Department of Homeland Security (“DHS”), which oversees USCIS; James
McCament, Acting Director of USCIS, in his official capacity; and John Kelly, Secretary
of DHS, in his official capacity (collectively, “Defendants”); and (2) a motion for class

ORDER - 1

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certification (3d MCC (Dkt. # 82)) by Plaintiffs Wilman Gonzalez-Rosario, L.S., K.T.,

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A.A., Karla Diaz Marin, Antonio Machic Yac, Faridy Salmon, Jaimin Shah, and W.H.

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(collectively, “Plaintiffs”).1 The court has considered the motions, the briefing filed in

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support thereof and opposition thereto, the relevant portions of the record, and the

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applicable law. In addition, the court held oral argument on July 13, 2017. Considering

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itself fully advised, the court GRANTS Defendants’ partial motion to dismiss and

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GRANTS in part and DENIES in part Plaintiffs’ motion for class certification.

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II.

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BACKGROUND

Through this injunctive class action, Plaintiffs seek to compel USCIS to abide by

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regulatory deadlines for adjudicating applications for employment authorization

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documents (“EADs”) filed by noncitizens. (See generally Am. Compl. (Dkt. # 58).)

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A.

Regulatory Structure

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For an alien to be eligible to work in the United States, the alien must file Form

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I-765 with DHS and obtain an EAD. (Am. Compl. ¶¶ 3-4; Instructions for Application

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for Employment Authorization (“I-765 Instructions”), U.S. Customs and Immigration

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Services (Nov. 4, 2015), available at https://www.uscis.gov/sites/default/files/files/form/

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i-765instr.pdf (last accessed July 18, 2017).2 USCIS is responsible for adjudicating Form

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//

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The court directs the Clerk to substitute James McCament for former Director of USCIS
Leon Rodriguez and John Kelly for former Secretary of DHS Jeh Johnson. See Fed. R. Civ. P.
25(d). Furthermore, pursuant to the court’s October 5, 2016, order, the court DIRECTS the
Clerk to terminate as plaintiffs Northwest Immigrant Rights Project, The Advocates for Human
Rights, Marvella Arcos, and Carmen Osorio. (See 10/5/16 Order (Dkt. # 80) at 17-18, 22-36.)
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Plaintiffs incorporate the I-765 Instructions into their amended complaint by reference.
(See Am. Compl. ¶ 8.)

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I-765. (Am. Compl. ¶ 4.) When Plaintiffs filed this lawsuit, federal regulations provided

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a 90-day timeline—with certain exceptions—for USCIS to adjudicate EAD applications.3

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See 8 C.F.R. §§ 274a.13(d) (effective until Jan. 16, 2017). The regulations excepted

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individuals seeking an initial EAD based on an underlying asylum applicationfrom the

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90-day timeline. See id. (excluding from the 90-day deadline “initial application[s] for

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employment authorization under 8 CFR 274a.12(c)(8)”); cf. id. §§ 274a.12(c)(8)

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(covering aliens who have “filed a complete application for asylum or withholding of

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deportation or removal pursuant to 8 CFR part 208”), 208.7(a)(1) (providing a timeline

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for adjudicating asylum-based EAD applications).

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Throughout this case, the regulations have conferred discretion on USCIS to

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approve or deny EAD applications unless they are filed by an applicant for asylum. See 8

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C.F.R. § 274a.13(a)(1); 8 C.F.R. § 274a.13(a)(1) (effective until Jan. 16, 2017); see also

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Guevara v. Holder, 649 F.3d 1086, 1091-92 (9th Cir. 2011) (“[T]he authorization for

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such employment is not mandated.”); Kaddoura v. Gonzales, No. C06-1402RSL, 2007

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WL 1521218, at *5 (W.D. Wash. May 21, 2007) (“While plaintiff is correct that as an

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‘alien who has filed an application for adjustment of status’ he is within the class of

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aliens ‘eligible’ for an EAD, under the plain language 8 C.F.R. §§ 274a.12 and 274a.13,

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his eligibility for an EAD resides within the discretion of USCIS and there is no appeal

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//

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The applicable regulations have changed since Plaintiffs filed this lawsuit, and those
changes are important to the motions before the court. Compare 8 C.F.R. § 274a.13(d) (effective
until January 16, 2017), with 8 C.F.R. § 274a.13(d) (eliminating the prior version’s 90-day
adjudication deadline and automatic issuance of an interim EAD). Except where parenthetically
noted, the court’s citations to the Code of Federal Regulations are to the current version.

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from the denial of the application.”). However, the prior version of the regulation used

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mandatory language when discussing the timeline for adjudicating such applications:

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USCIS will adjudicate the application within 90 days from the date of receipt
of the application. . . . Failure to complete the adjudication within 90 days
will result in the grant of an employment authorization document for a period
not to exceed 240 days. Such authorization will be subject to any conditions
noted on the employment authorization document. However, if USCIS
adjudicates the application prior to the expiration date of the interim
employment authorization and denies the individual’s employment
authorization application, the interim employment authorization granted
under this section will automatically terminate as of the date of the
adjudication and denial.

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8 C.F.R. § 274a.13(d) (effective until Jan. 16, 2017). In sum, if USCIS had not
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adjudicated an EAD application within 90 days of receipt, the regulation required USCIS
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to issue one or more interim EADs for 240 days or until USCIS adjudicated the EAD
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application, whichever came first.
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Effective January 17, 2017, DHS amended the regulations that imposed the 90-day
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deadline. The regulations no longer set a 90-day timeline for adjudicating EAD
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applications. See 8 C.F.R. § 274a.13(d); Retention of EB-1, EB-2, and EB-3 Immigrant
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Workers & Program Improvements Affecting High-Skilled Nonimmigrant Workers
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(“Retention of Immigrant Workers”), 81 Fed. Reg. 82,398, 82,455 (Nov. 18, 2016)
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(codified at 8 C.F.R. §§ 204-05, 214, 245, 274a). Instead, they provide for automatic
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extension of certain types of EADs upon the filing of an EAD renewal application. See 8
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C.F.R. § 274a.13(d); Retention of Immigrant Workers, 81 Fed. Reg. at 82,455-57.
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A different regulation governs asylum seekers applying for an initial EAD, who
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the court will refer to as initial asylum EAD applicants, and that regulation has not
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changed during the course of this litigation.4 See 8 C.F.R. §§ 208.7(a)(1), 274a.12(c)(8),

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274a.13(d); see also Carballo v. Meissner, No. C00-2145, 2000 WL 1741948, at *2

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(N.D. Cal. Nov. 17, 2000) (describing the process for an asylum applicant seeking an

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EAD). Section 274a.13(a)(2) mandates that USCIS adjudicate initial asylum EAD

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applications “in accordance with [Section] 208.7.” 8 C.F.R. § 274a.13(a)(2). After filing

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an application for asylum, an individual typically must wait 150 days before filing an

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initial EAD application, but there are exceptions to this rule. Id. § 208.7(a)(1). For

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instance, if asylum is granted within 150 days, the asylee may apply for an EAD

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immediately thereafter. Id. Additionally, if asylum is denied at any point, the applicant

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becomes ineligible for an EAD. Id.

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Assuming an individual’s “asylum clock” runs for at least 150 days without delay

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caused by the applicant, she may apply for an EAD while her asylum application pends.

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Id. §§ 208.7(a)(1)-(2), (4). USCIS “shall have 30 days from the date of filing of the

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request [sic] employment authorization to grant or deny that application,” except that in

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no event may USCIS grant the EAD prior to 180 days after the noncitizen files her

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asylum application. Id. § 208.7(a)(1); see also 8 U.S.C. § 1158(d)(2). Section 208.7 is

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silent about whether there is any consequence if USCIS fails to meet this 30-day

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adjudication deadline. See 8 C.F.R. § 208.7(a)(1); cf. id. § 274a.13(d) (effective until

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//

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//

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DHS did not amend 8 C.F.R. § 208.7, which governs initial asylum EAD applicants, as
part of the January 2017 amendments. See generally Retention of Immigrant Workers, 81 Fed.
Reg. 82,398.

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Jan. 16, 2017) (providing for interim EADs for other EAD applicants if USCIS has not

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decided their EAD applications within 90 days).

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B.

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Factual Allegations
Based on this regulatory structure, Plaintiffs seek to certify a nationwide class

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consisting of two subclasses. (See generally 3d MCC.) Each Plaintiff seeks to serve as a

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class representative of one of the two putative subclasses. (See Am. Compl. ¶¶ 89-90; 3d

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MCC at 5.) Plaintiffs propose the following class definition:

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Noncitizens who have filed or will file applications for employment
authorization that were not or will not be adjudicated within the regulatory
timeframe, namely:

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(1) 90 days, for those filing applications for employment authorization
under 8 C.F.R. § 274a.13 (“90-Day Subclass”); or

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(2) 30 days, for those filing initial applications for employment
authorization under 8 C.F.R. § 208.7 (“30-Day Subclass”); and

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who have not or will not be granted interim employment authorization.

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[The 90-Day Subclass] consists of only those applicants for whom 90 days
has accrued or will accrue under the applicable regulations, 8 C.F.R.
§§ 103.2(b)(10)(i), 274.13a.13(d).

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[The 30-Day Subclass] consists of only those applicants for whom 30 days
has accrued or will accrue under the applicable regulations, 8 C.F.R.
§§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4).
(3d MCC at 2.)
Mr. Gonzalez Rosario, L.S., K.T., Ms. Diaz Marin, Ms. Salmon, and Mr. Shah

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(collectively, “90-Day Plaintiffs”) seek to represent the 90-Day Subclass. (3d MCC at 5;

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see also Am. Compl. ¶ 89.) 90-Day Plaintiffs argued on behalf of the 90-Day Subclass

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that the previous version of 8 C.F.R. § 274a.13(d) obligated USCIS to either adjudicate

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their EAD application within 90 days or issue an interim EAD. (Am. Compl. ¶¶ 5-6; see

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also 10/5/16 Order (Dkt. # 80) at 7-9 (articulating in greater detail 90-Day Plaintiffs’

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factual allegations).) 90-Day Plaintiffs concede that the January 2017 amendments

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eliminate USCIS’s duty going forward to adjudicate EAD applications within 90 days or

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issue interim EADs, but 90-Day Plaintiffs maintain that injunctive relief is warranted.

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(3d MTD Resp. (Dkt. # 91) at 1-2.) Specifically, 90-Day Plaintiffs ask the court to enjoin

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Defendants from ascribing negative immigration consequences based on the 90-Day

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Subclass’s inability to legally work or decision to work unlawfully during USCIS’s

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failure to timely adjudicate the 90-Day Subclass’s EAD applications or issue interim

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EADs. (Id.)
A.A., Mr. Machic Yac, and W.H. (collectively, “30-Day Plaintiffs”) seek to

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represent the 30-Day Subclass. (Am. Compl. ¶ 90.) All three individuals are initial

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asylum EAD applicants and contend that Defendants failed to comply with their

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regulatory obligation to adjudicate 30-Day Plaintiffs’ EAD applications within 30 days.

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(Id. ¶¶ 21, 23, 28, 57, 62, 81.)

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C.

Procedural History

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Ms. Arcos, Ms. Osorio, W.H., Northwest Immigrant Rights Project, and The

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Advocates for Human Rights filed this lawsuit as a putative class action on May 22,

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2015. (Compl. (Dkt. # 1).) On February 10, 2016, the court concluded it lacked

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subject-matter jurisdiction over claims by Ms. Arcos, Ms. Osorio, Northwest Immigrant

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Rights Project, and The Advocates for Human Rights. (See 2/10/16 Order (Dkt. # 55).)

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//

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However, the court granted leave to amend the complaint to remedy the deficiencies

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identified in the order. (Id. at 37-39.)

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On March 10, 2016, the plaintiffs filed an amended complaint. (Am. Compl.)

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The amended complaint includes the five original plaintiffs and adds eight additional

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plaintiffs. (Id.) The day after filing their amended complaint, Plaintiffs moved for class

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certification. (2d MCC (Dkt. # 59).) Several weeks later, Defendants moved to dismiss

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the amended complaint. (2d MTD (Dkt. # 69).) The court granted in part the motion to

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dismiss and dismissed the claims of Ms. Arcos, Ms. Osorio, Northwest Immigrant Rights

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Project, and The Advocates for Human Rights. (10/5/16 Order at 17-18, 22-36); see also

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supra n.1. The court denied class certification with leave to renew the motion in a

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manner that cured commonality deficiencies that the court identified. (Id. at 41-55.) The

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currently pending motions followed the court’s order.

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III.
A.

ANALYSIS

Partial Motion to Dismiss
Defendants contend the amended EAD regulations that went into effect on January

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17, 2017, moot 90-Day Plaintiffs’ claims and the 90-Day Subclass’s claims. (See

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generally 3d MTD.) Accordingly, Defendants argue that the court should dismiss those

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claims for lack of subject-matter jurisdiction.

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1. Legal Standard

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“If the court determines at any time that it lacks subject-matter jurisdiction, the

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court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Because subject-matter

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jurisdiction is not waivable, parties may present a motion to dismiss for lack of

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subject-matter jurisdiction at any point in the litigation. Cf. Fed. R. Civ. P. 12(h)(1). A

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motion to dismiss for lack of subject-matter jurisdiction is either facial or factual. See

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Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack,

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the challenger asserts that the allegations contained in a complaint are insufficient on

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their face to invoke federal jurisdiction.” Id. The court accepts the factual allegations in

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the complaint as true, and the nonmoving party is entitled to have those facts construed in

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the light most favorable to it. Fed’n of African Am. Contractors v. City of Oakland, 96

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F.3d 1204, 1207 (9th Cir. 1996). However, if the moving party “convert[s] the motion to

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dismiss into a factual motion by presenting affidavits or other evidence properly brought

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before the court, the party opposing the motion must furnish affidavits or other evidence

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necessary to satisfy its burden of establishing subject[-]matter jurisdiction.” Savage v.

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Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th

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Cir. 2003) (citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)). In either

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instance, the party asserting its claims in federal court bears the burden of establishing

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subject-matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

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375, 377 (1994).

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Here, Defendants challenge the court’s subject-matter jurisdiction by arguing that

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90-Day Plaintiffs’ claims are moot. (See generally 3d MTD.) Mootness is “the doctrine

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of standing set in a time frame: The requisite personal interest that must exist at the

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commencement of litigation (standing) must continue throughout its existence

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(mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980). “To establish

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Article III standing, an injury must be ‘concrete, particularized, and actual or imminent;

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fairly traceable to the challenged action; and redressable by a favorable ruling.’” Clapper

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v. Amnesty Int’l USA, --- U.S. ---, 133 S. Ct. 1138, 1147 (2013) (quoting Monsanto Co. v.

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Geertson Seed Farms, 561 U.S. 139, 149 (2010)). Even if the plaintiff had standing

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when the complaint was filed, a case becomes moot if at any point it “does not satisfy the

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case-or-controversy requirement of Article III, § 2 of the Constitution.” Caswell v.

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Calderon, 363 F.3d 832, 836 (9th Cir. 2004).

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2. 90-Day Plaintiffs’ Claims

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“The type of claim asserted in the complaint dictates the nature of the relief that

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may be afforded to the plaintiff.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1277 n.6

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(9th Cir. 2006). 90-Day Plaintiffs assert two claims on behalf of themselves and the

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90-Day Subclass—one under the Mandamus Act, 28 U.S.C. § 1361, and one under the

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Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (Am. Compl. ¶¶ 104-10,

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125-28.) The Mandamus Act vests original jurisdiction in the district courts over “any

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action in the nature of mandamus to compel an officer or employee of the United States

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

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Section 706(1) operates similarly in this realm, permitting courts to “compel agency

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action unlawfully withheld or unreasonably delayed.” Id. § 706(1). The APA also

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provides for judicial review of “final agency action for which there is no other adequate

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remedy in a court.” 5 U.S.C. § 704. The court may “hold unlawful and set aside” such

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agency action where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in

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accordance with law.” Id. § 706(2)(A).

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a. Claims under APA Section 706(1) and the Mandamus Act
APA Section 706(1) and the Mandamus Act do not permit the relief 90-Day

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Plaintiffs now seek. APA Section 706(1) empowers the court to “compel agency action

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unlawfully withheld or unreasonably delayed.” Id. § 706(1). However, such a claim

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“can proceed only where a plaintiff asserts that an agency failed to take a discrete agency

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action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64

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(2004). “Absent such an assertion, a Section 706(1) claim may be dismissed for lack of

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jurisdiction.” Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1019-20 (9th Cir.

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2007); see also Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2006)

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(upholding the district court’s dismissal of an APA claim for lack of jurisdiction because

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the plaintiffs failed to demonstrate the government’s obligation to “take discrete

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nondiscretionary actions”). Furthermore, “when an agency is compelled by law to act

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within a certain time period, but the manner of its action is left to the agency’s discretion,

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a court can compel the agency to act, but has no power to specify what the action must

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be.” Norton, 542 U.S. at 65 (clarifying that “law” can include “agency regulations that

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have the force of law”).

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The Mandamus Act operates similarly in this context, empowering district courts

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“to compel an officer or employee of the United States or any agency thereof to perform

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a duty owed to the plaintiff.” 28 U.S.C. § 1361; see also Garcia v. Johnson, No.

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14-cv-1775-YGR, 2014 WL 6657591, at *5 (N.D. Cal. Nov. 21, 2014) (“The

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jurisdictional dimensions of the APA and the Mandamus Act are considered to be

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coextensive for purposes of compelling agency action that has been unreasonably

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delayed.”). “Although the exact interplay between these two statutory schemes has not

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been thoroughly examined by the courts, the Supreme Court has construed a claim

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seeking mandamus under the [Mandamus Act], ‘in essence,’ as one for relief under

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[Section] 706 of the APA.” Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.

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1997) (citing Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4

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(1986)); see also Garcia, 2014 WL 6657591, at *5 (“Where, as here, the relief sought is

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identical under the APA and the mandamus statute, proceeding under one as opposed to

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the other is not significant.”).

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90-Day Plaintiffs indicate that in light of the amendments to 8 C.F.R.

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§ 274a.13(d), they “no longer seek class-wide relief” in the form of compelling

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Defendants to either adjudicate EADs within 90 days or grant an interim EAD. (3d MTD

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Resp. at 1.) Rather, 90-Day Plaintiffs now contend that they and the 90-Day Subclass

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suffered harm by either (1) being unlawfully deprived of the opportunity to work, or (2)

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engaging in unauthorized employment, which may count against applicants in any

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subsequent application for immigration benefits. (Id. at 1-7.) 90-Day Plaintiffs therefore

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now seek relief in the form of “an order enjoining Defendants from denying 90-Day

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Subclass members’ future applications for immigration benefits based on unauthorized

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employment during any periods when adjudication of their EAD applications was

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delayed beyond 90 days.” (Id. at 12-13.) In other words, 90-Day Plaintiffs no longer

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seek to compel Defendants to take a discrete agency action that they are required to take.5

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At oral argument, 90-Day Plaintiffs narrowed their amended request for relief. 90-Day
Plaintiffs suggested that the court could merely compel Defendants to adjudicate EAD

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See Norton, 542 U.S. at 64; cf. Viet. Veterans of Am. v. Cent. Intelligence Agency, 811

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F.3d 1068, 1075-82 (9th Cir. 2015) (affirming remedial injunctive relief under APA

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Section 706(1) where the applicable regulation “unequivocally command[ed]” the

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defendants to provide that relief in the first instance, but the defendants failed to do so).

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Instead, they now seek injunctive relief to remedy potential collateral harm from

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Defendants’ alleged violations of the previous iteration of 8 C.F.R. § 274a.13(d).

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Accordingly, the court concludes that 90-Day Plaintiffs’ claims under the Mandamus Act

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and APA Section 706(1) are moot and dismisses those claims.

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b. Claims under APA Sections 704 and 706(2)

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90-Day Plaintiffs pivot and argue that their complaint supports a claim under other

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sections of the APA. Specifically, APA Section 704 authorizes courts to review “final

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agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704,

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and APA Section 706(2) empowers courts to “hold unlawful and set aside agency action,

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//

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applications or issue interim EADs—rather than granting further collateral relief—for the
90-Day Subclass members who (1) are subject to the prior version of 8 C.F.R. § 274a.13(d); (2)
have not yet received a final adjudication of their EAD application from USCIS; and (3) have not
received an interim EAD. (But see MTD Resp. at 1:18-2:7.) Although this narrowed,
backward-looking relief arguably constitutes discrete agency action that Defendants were
required to take, it applies to an ever-shrinking putative class about which 90-Day Plaintiffs
make no showing of numerosity. (See generally 3d MCC Reply (Dkt. # 87) (proposing a new
class definition that incorporates the January 16, 2017, amendment, but failing to make any
showing of the numerosity of that class); cf. Fed. R. Civ. P. 23(a)(1). Under that theory, class
certification is unwarranted, see Fed. R. Civ. P. 23(a)(1), and 90-Day Plaintiffs’ claims are moot.
Therefore, no class action-specific exceptions to mootness save 90-Day Plaintiffs’ claims. (Cf.
10/5/16 Order at 21-22 (holding that the claims of the individual plaintiffs, including 90-Day
Plaintiffs, are subject to the inherently transitory exception to mootness “[u]ntil the court issues a
final determination on the merits of class certification”).) Accordingly, 90-Day Plaintiffs’
narrowed request for relief also fails to avoid the court’s conclusion that 90-Day Plaintiffs’ APA
Section 706(1) and Mandamus Act claims are moot.

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findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or

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otherwise not in accordance with law,” id. § 706(2)(A).

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“A final agency action ‘for which there is no other adequate remedy in a court’ is

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subject to judicial review under” APA Sections 704 and 706(2). WildEarth Guardians v.

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Mont. Snowmobile Ass’n, 790 F.3d 920, 924 (9th Cir. 2015). Typically, two conditions

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must be met for agency action to be considered final: (1) “the action must mark the

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‘consummation’ of the agency’s decisionmaking process—it must not be of a merely

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tentative or interlocutory nature”; and (2) “the action must be one by which ‘rights or

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obligations have been determined,’ or from which ‘legal consequences will flow.’”

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Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted) (quoting Chi.

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& S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948); Port of Bos.

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Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).

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The Ninth Circuit has explained that this exhaustion requirement avoids undertaking

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judicial review “where pending administrative proceedings or further agency action

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might render the case moot and judicial review completely unnecessary.” Sierra Club v.

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U.S. Nuclear Regulatory Comm’n, 825 F.2d 1356, 1362 (9th Cir. 1987). Courts lack

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subject-matter jurisdiction to review claims under APA Sections 704 and 706(2) unless

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the responsible agency has taken final action. See City of San Diego v. Whitman, 242

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F.3d 1097, 1102 (9th Cir. 2001).

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90-Day Plaintiffs make passing reference to the arbitrary and capricious standard

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in their amended complaint (Am. Compl. ¶ 125), and they allege in conclusory fashion

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that they have suffered “final agency action within the meaning of 5 U.S.C. § 704” (id.

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¶ 126). However, they have litigated the entirety of this case in pursuit of their claim

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under APA Section 706(1) and the related Mandamus Act claim. (See, e.g., 1st MCC

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(Dkt. # 5) at 1; MSJ (Dkt. # 24) at 23-24; 1st MTD Resp. (Dkt. # 40) at 7-12; 2d MCC

4

(Dkt. # 59) at 1; 2d MTD Resp. (Dkt. # 73) at 4-6; 3d MCC at 6-11.) Even assuming the

5

amended complaint sufficiently informs Defendants of claims under other sections of the

6

APA and the relief 90-Day Plaintiffs now pursue, Defendants’ delay in adjudicating

7

90-Day Plaintiffs’ EAD applications does not constitute final agency action.6 See Sze v.

8

I.N.S., No. C-97-0569 SC, 1997 WL 446236, at *5 n.2 (N.D. Cal. July 24, 1997)

9

(rejecting an analogous argument as “frivolous”). Indeed, the absence of a timely final

10

decision by Defendants caused Plaintiffs to seek to compel adjudication pursuant to APA

11

Section 706(1) and the Mandamus Act.7 In contrast, the harm 90-Day Plaintiffs now

12

//

13

“Agency action” includes the failure to act. See 5 U.S.C. § 551(13); see also 5 U.S.C.
§ 701(b)(2) (“‘[A]gency action’ ha[s] the meaning given to [it] by [S]ection 551 of this title.”).
However, “the relief the APA provides for a failure to act is that ‘[t]he reviewing court shall . . .
compel agency action unlawfully withheld or unreasonably delayed’” pursuant to APA Section
706(1). Leigh v. Salazar, No. 3:13-cv-00006-MMD-VPC, 2014 WL 4700016, at *4 (D. Nev.
Sept. 22, 2014) (quoting 5 U.S.C. § 706(1); Norton, 542 U.S. at 62) (second and third alterations
in original); see also S.F. BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002)
(distinguishing between an unreasonable delay claim under the APA, which is based on an
agency’s failure to act, and an APA Section 706(2) claim, which must be based on a final
decision); Audubon Soc’y of Portland v. Jewell, 104 F. Supp. 3d 1099, 1102 (D. Or. 2015). In
other words, the APA channels failure-to-act claims into Section 706(1). The court has
concluded 90-Day Plaintiff’s claim under APA Section 706(1) is moot. See supra § III.A.2.a.
The failure-to-act theory does not alter the court’s rationale or conclusion regarding APA Section
706(1) or apply to 90-Day Plaintiffs’ claim under any other sections of the APA.

14
15
16
17
18
19
20
21
22

6

(See, e.g., Am. Compl. ¶¶ 6 (“USCIS regularly fails to timely adjudicate EAD
applications and never issues interim employment authorization.”), 9 (“The interim employment
authorization process was intended to allow people to work lawfully while awaiting final
adjudication of pending EAD applications.”), 12 (“Plaintiffs seek declaratory and injunctive
relief to remedy Defendants’ unlawful failure to timely adjudicate EAD applications and their
unlawful withholding of interim employment authorization . . . .”).)
7

ORDER - 15

1

assert that they fear—adverse immigration consequences from unauthorized employment

2

(3d MTD Resp. at 10, 12-13)—can be addressed, in the event it arises, through an APA

3

challenge to that final agency action, see Bennett, 520 U.S. at 177-78.

4

The absence of a final decision by Defendants lays bare 90-Day Plaintiffs’ attempt

5

to shoehorn their Mandamus Act and APA Section 706(1) claims into APA Sections 702,

6

704 or 706(2)(A) to avoid mootness problems. See Sze, 1997 WL 446236, at *5 n.2.

7

Because 90-Day Plaintiffs allege facts that demonstrate the lack of a final agency action

8

by Defendants, the court concludes that it lacks subject-matter jurisdiction over their

9

claims under other sections of the APA. See Whitman, 242 F.3d at 1102. The court

10

accordingly dismisses those claims without prejudice and without leave to amend.

11

Having dismissed 90-Day Plaintiffs’ claims, the court DENIES as moot 90-Day

12

Plaintiffs’ motion for class certification8 and turns to 30-Day Plaintiffs’ motion for class

13

certification.

14

B.

30-Day Plaintiffs’ Motion for Class Certification
After excising the portion of Plaintiffs’ proposed class definition that applies to the

15
16

90-Day Subclass, 30-Day Plaintiffs’ proposed class definition reads:

17

//

18

//

19

//

20
This determination also moots the parties’ dispute over whether Plaintiffs adequately
presented their amended proposed class definition by providing it in their reply brief, because the
amended proposed class definition only altered portions of the original proposed class definition
that applied to the 90-Day Subclass. (See 3d MCC Reply at 2 & n.2; 3d MTD at 3 n.2.)
8

21
22

ORDER - 16

1

Noncitizens who have filed or will file applications for employment
authorization that were not or will not be adjudicated within . . . 30 days . . .
and who have not or will not be granted interim employment authorization.
[This class] consists of only those applicants for whom 30 days has accrued
or will accrue under the applicable regulations, 8 C.F.R. §§ 103.2(b)(10)(i),
208.7(a)(2), (a)(4).

2
3
4

(3d MCC at 2; 3d MCC Reply at 2.)
5
1. Legal Standard
6
“Class certification is governed by Federal Rule of Civil Procedure 23.”
7
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Under Federal Rule of Civil
8
Procedure Rule 23(a), the party seeking certification must first demonstrate that “(1) the
9
class is so numerous that joinder of all members is impracticable; (2) there are questions
10
of law or fact common to the class; (3) the claims or defenses of the representative parties
11
are typical of the claims or defenses of the class; and (4) the representative parties will
12
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). “Second,
13
the proposed class must satisfy at least one of the three requirements listed in Rule
14
23(b).” Dukes, 564 U.S. at 345; see also Leyva v. Medline Indus. Inc., 716 F.3d 510, 512
15
(9th Cir. 2013). Here, Plaintiffs seek to certify a class under Rule 23(b)(2), which
16
requires that “the party opposing the class has acted or refused to act on grounds that
17
apply generally to the class, so that final injunctive relief or corresponding declaratory
18
relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); (see 3d
19
MCC at 2.) “Rule 23(b)(2) applies only when a single injunction or declaratory judgment
20
would provide relief to each member of the class.” Dukes, 564 U.S. at 360.
21
//
22

ORDER - 17

1

Rule 23 “does not set forth a mere pleading standard.” Id. at 350. Rather,

2

“certification is proper only if the trial court is satisfied, after a rigorous analysis, that the

3

prerequisites of Rule 23(a) have been satisfied.” Id. at 350-51 (internal quotation

4

omitted). “[I]t may be necessary for the court to probe behind the pleadings before

5

coming to rest on the certification question.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.

6

147, 160 (1982). This is because “the class determination generally involves

7

considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s

8

cause of action.” Id. (internal quotation omitted). Nonetheless, the ultimate decision

9

regarding class certification “involve[s] a significant element of discretion.” Yokoyama

10

v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1090 (9th Cir. 2010).

11

2. Numerosity

12

“The prerequisite of numerosity is discharged if ‘the class is so large that joinder

13

of all members is impracticable.’” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th

14

Cir. 1998) (quoting Fed. R. Civ. P. 23(a)(1)). In its previous order on class certification,

15

the court concluded that the 30-Day Subclass was sufficiently numerous to satisfy Rule

16

23(a)(1). (10/5/16 Order at 40-41.) Although 30-Day Plaintiffs have since altered the

17

proposed class definition, the size of the putative class has not changed and Defendants

18

do not challenge numerosity. (See id.; see generally 3d MCC Resp. (Dkt. # 86).)

19

Accordingly, the court’s previous analysis applies (see 10/5/16 Order at 40-41), and the

20

court concludes that 30-Day Plaintiffs satisfy the numerosity requirement.

21

//

22

//

ORDER - 18

1

3. Commonality

2

The requirement of “commonality” is met through the existence of a “common

3

contention” that is of “such a nature that it is capable of classwide resolution.” Dukes,

4

564 U.S. at 350. A contention is capable of classwide resolution if “the determination of

5

its truth or falsity will resolve an issue that is central to the validity of each one of the

6

claims in one stroke.” Id. Accordingly, “what matters to class certification . . . is not the

7

raising of common questions—even in droves—but, rather the capacity of a classwide

8

proceeding to generate common answers apt to drive the resolution of the litigation.” Id.

9

This requirement is “construed permissively.” Hanlon, 150 F.3d at 1019. Accordingly,

10

“[a]ll questions of fact and law need not be common to satisfy the rule.” Id.; see also

11

Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010).

12

In its previous order, the court denied class certification largely because 30-Day

13

Plaintiffs failed to demonstrate commonality. (10/5/16 Order at 41-48.) The court noted

14

that “answers to one legal question and one factual question will ‘drive the resolution of

15

the litigation.’” (Id. at 42 (quoting Dukes, 564 U.S. at 350).) The court determined that

16

the legal question—“whether USCIS is legally obligated to adjudicate EAD applications

17

within a certain timeframe”—was “a ‘common contention’ that is ‘capable of classwide

18

resolution.’” (Id. (quoting Dukes, 564 U.S. at 350).) However, the court concluded that

19

fact-specific tolling inquiries precluded a finding of commonality. (See id. at 42-45.) In

20

response, 30-Day Plaintiffs altered their proposed class definition and now contend that

21

the proposed class definition eliminates the commonality flaw: “If tolling occurred, the

22

regulatory adjudication deadline would not have expired, and the applicant would not be

ORDER - 19

1

a class member, at least until the problem that gave rise to tolling is remedied and the

2

day-count restarts and reaches . . . 30 . . . .” (3d MCC at 8; see also 3d MCC at 2 (“To

3

address the court’s concerns about commonality, Plaintiffs propose a simplified class

4

definition that limits the class members to individuals whose claims have accrued.”).)

5

The court agrees that by excluding from the class definition any applicants whose

6

deadline has not passed due to tolling, 30-Day Plaintiffs have remedied the commonality

7

issue that the court identified in its prior order. (Cf. 10/5/16 Order at 44-45 & n.20

8

(rejecting the same argument based on the court’s reading of the previous proposed class

9

definition).) Unlike the previous class definition, 30-Day Plaintiffs’ current proposal

10

limits the class to “applicants for whom 30 days has accrued or will accrue under the

11

applicable regulations, 8 C.F.R. §§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4).” (3d MCC at 2.)

12

This excludes from the class any applicants whose 30 days has not accrued and will not

13

accrue under the applicable regulations due to tolling or other regulatory provisions.

14

Defendants argue that the individualized six-factor reasonableness analysis from

15

Telecommunications Research & Action Center v. F.C.C. (“TRAC”), 750 F.2d 70, 80

16

(D.C. Cir. 1984), precludes the conclusion that common questions will generate common

17

answers apt to drive the resolution of the litigation.9 (See 3d MCC Resp. at 10-13.) In

18
19
20
21
22

9

Under the TRAC standard, the court balances the following factors: (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

ORDER - 20

1

most circumstances, the TRAC standard governs unreasonable delay claims under APA

2

Section 706(1). See Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir. 2001). However,

3

the Ninth Circuit has rejected the TRAC standard where “Congress has specifically

4

provided a deadline for performance.” Biodiversity Legal Found. v. Badgley, 309 F.3d

5

1166, 1177 n.11 (9th Cir. 2002); see also Ctr. for Food Safety v. Hamburg, 954

6

F. Supp. 2d 965, 970-71 (N.D. Cal. 2013) (quoting Badgley, 309 F.3d at 1177 n.11)

7

(“[W]here Congress has specifically provided a deadline for performance by an agency,

8

‘no balancing of factors is required or permitted.’”).

9

Here, agency regulations rather than a congressional statute provided a deadline

10

for performance, but the court has already concluded that those regulatory deadlines are

11

mandatory.10 (2/10/16 Order at 21-26.) The court discerns no reason to differentiate

12

those mandatory regulatory deadlines from the mandatory statutory deadlines in Badgley,

13

Hamburg, and similar cases from district courts in the Ninth Circuit. See, e.g., Garcia,

14

2014 WL 6657591, at *12 (observing that Ninth Circuit authority suggests that the court

15

“need not undertake TRAC’s six-factor balancing inquiry” where a regulation imposes a

16

firm deadline). Accordingly, the court rejects Defendants’ argument that the

17

individualized TRAC inquiry undermines commonality. Having concluded that 30-Day

18

//

19

need not find any impropriety lurking behind agency lassitude in order to hold that agency action
is unreasonably delayed. TRAC, 750 F.2d at 80; see also Indep. Mining, 105 F.3d at 507 n.7.

20
21
22

Defendants contrast the court’s prior ruling, which they characterize as concluding that
“the regulations created a mandatory duty for Defendants to act,” with their current argument—
that the regulatory timeline is not mandatory. (3d MCC Resp. at 11 n.2.) The court rejects this
characterization of the court’s previous decision and Defendants’ effort to relitigate whether the
30-day deadline is directory or mandatory. (See 2/10/16 Order at 25-26 & n.18.)
10

ORDER - 21

1

Plaintiffs remedied the previously identified commonality flaws and rejected Defendants’

2

argument regarding the TRAC factors, the court concludes that Plaintiffs meet Rule 23’s

3

commonality requirement.

4

4. Typicality

5

“[R]epresentative claims are ‘typical’ if they are reasonably co-extensive with

6

those of absent class members; they need not be substantially identical.” Hanlon, 150

7

F.3d at 1020. “Typicality refers to the nature of the claim or defense of the class

8

representative, and not to the specific facts from which it arose or the relief sought.”

9

Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Nonetheless, the

10

“commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457

11

U.S. at 157 n.13. “Both serve as guideposts for determining whether under the particular

12

circumstances maintenance of a class action is economical and whether the named

13

plaintiff’s claim and the class claims are so interrelated that the interests of the class

14

members will be fairly and adequately protected in their absence.” Id. In determining

15

typicality, courts consider “whether other members have the same or similar injury,

16

whether the action is based on conduct which is not unique to the named plaintiffs, and

17

whether other class members have been injured by the same course of conduct.” Hanon,

18

976 F.2d at 508.

19

The court has already concluded that 30-Day Plaintiffs’ previous proposed class

20

definition satisfies the typicality requirement, and the court’s analysis of the previous

21

class definition applies with equal force to the current class definition. (Compare 10/5/16

22

Order at 48-50, with 3d MCC at 2.) Defendants’ only new argument pertaining to

ORDER - 22

1

typicality is based on the TRAC standard. (See 3d MCC Resp. at 13-14.) The court

2

concluded that the TRAC standard does not apply to the 30-day deadline in 8 C.F.R.

3

§ 208.7(a)(1), see supra § III.B.3., and the individual analysis required under that

4

standard therefore presents no obstacle to class certification. Accordingly, the court

5

concludes that the proposed 30-Day Subclass satisfies Rule 23’s typicality requirement.

6

5. Adequacy

7

“The final hurdle interposed by Rule 23(a) is that ‘the representative parties will

8

fairly and adequately protect the interests of the class.’” Hanlon, 150 F.3d at 1020

9

(quoting Fed. R. Civ. P. 23(a)(4)); see also Fed. R. Civ. P. 23(g). “Resolution of two

10

questions determines legal adequacy: (1) do the named plaintiffs and their counsel have

11

any conflicts of interest with other class members and (2) will the named plaintiffs and

12

their counsel prosecute the action vigorously on behalf of the class?” Id. (citing Lerwill

13

v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)).

14

As Defendants acknowledge (3d MCC Resp. at 15 n.4), the court has already

15

concluded that the putative class representatives and putative class counsel are adequate

16

(10/5/16 Order at 50-53). The putative class representatives and putative class counsel

17

for the 30-Day Subclass have not changed since the court made that conclusion. (See

18

generally Am. Compl.) Nonetheless, “Defendants request that the Court reconsider their

19

arguments and also preserve the issue for appeal.” (3d MCC Resp. at 15 n.4.)

20

Defendants’ deadline to move for reconsideration of the court’s October 5, 2016, order

21

passed more than eight months ago. See Local Rules W.D. Wash. LCR 7(h)(2). They

22

raise no new arguments, and most of their arguments pertain specifically to the now-moot

ORDER - 23

1

90-Day Subclass. (3d MCC Resp. at 15-16.) The court therefore appoints 30-Day

2

Plaintiffs as class representatives.
However, the court’s rulings significantly narrow this case, and 30-Day Plaintiffs

3
4

have not shown that the appointment of 10 lawyers as class counsel is warranted. Federal

5

Rule of Civil Procedure 23(g) governs the appointment of class counsel, and the

6

Committee Note regarding that subsection provides, in part:
The rule states that the court should appoint “class counsel.” In many
instances, the applicant will be an individual attorney. In other cases,
however, an entire firm, or perhaps numerous attorneys who are not
otherwise affiliated but are collaborating on the action will apply. No rule of
thumb exists to determine when such arrangements are appropriate; the court
should be alert to the need for adequate staffing of the case, but also to the
risk of overstaffing or an ungainly counsel structure.

7
8
9
10
11

Fed. R. Civ. P. 23(g) advisory committee’s note to 2003 amendment. Rule 23(g) also

12

permits the court to “include in the appointing order provisions about the award of

13

attorney’s fees or nontaxable costs under Rule 23(h).” Fed. R. Civ. P. 23(g)(1)(D). The

14

court’s experience with this case and similar past actions suggests that 10 lawyers would

15

constitute overstaffing and an ungainly counsel structure. See Fed. R. Civ. P. 23(g)

16

advisory committee’s note to 2003 amendment. Accordingly, the court directs the parties

17

to review Rule 23(g), meet and confer regarding the appointment of class counsel, and

18

file a motion—or motions, see Fed. R. Civ. P. 23(g)(2)—to appoint class counsel that

19

contemplate the narrowing of the case and the considerations articulated above. If the

20

parties agree regarding class counsel, they may file a stipulated motion; if the parties

21

cannot agree, the motion or motions must be noted for the second Friday and briefed

22

//

ORDER - 24

1

accordingly. See Local Rules W.D. Wash. LCR 7(d)(2). Any motion to appoint class

2

counsel must be filed no later than July 27, 2017.

3

6. Common Grounds

4

Class certification under Rule 23(b)(2) is only appropriate where the plaintiffs

5

allege that the defendant has “acted or refused to act on grounds that apply generally to

6

the class, so that final injunctive relief or corresponding declaratory relief is appropriate

7

respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The court has already

8

concluded that 30-Day Plaintiffs’ claims satisfy this standard (10/5/16 Order at 53-54),

9

and Defendants do not challenge that conclusion here (see generally 3d MCC Resp.).

10

Accordingly, the court concludes that the 30-Day Subclass satisfies Rule 23(b)(2).

11

7. Failsafe Class

12

Separately, Defendants argue that the proposed class is failsafe. (3d MCC Resp. at

13

16-17.) “[A] failsafe class definition requires the court to reach a legal conclusion on the

14

validity of a person’s claim in order to determine whether the person is in the class,

15

meaning the class is unascertainable prior to a liability determination.” Waterbury v. A1

16

Solar Power Inc., No. 15cv2374-MMA (WVG), 2016 WL 3166910, at *4 (S.D. Cal. June

17

7, 2016) (internal quotations omitted); see also In re AutoZone, Inc. Wage & Hour Emp’t

18

Practices Litig., 289 F.R.D. 526, 545-46 (N.D. Cal. 2012); Kamar v. RadioShack Corp.,

19

375 F. App’x 734, 736 (9th Cir. 2010). “Importantly, however, it is not clear that the

20

Ninth Circuit forbids fail-safe classes.” In re AutoZone, 289 F.R.D. at 546.

21

Even assuming failsafe classes are improper, the proposed class is not failsafe. As

22

defined, the proposed class includes any noncitizen (1) who has filed or will file an initial

ORDER - 25

1

application for employment authorization under 8 C.F.R. § 208.7; (2) whose application

2

was not or will not be adjudicated within 30 days, as calculated pursuant to the applicable

3

regulations, 8 C.F.R. §§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4); and (3) who has not or will

4

not be granted interim employment authorization. (See 3d MCC at 2.) This class

5

definition is based on factual characteristics of the putative class members, and it is not

6

contingent on whether Section 208.7(a)(1)’s 30-day deadline is mandatory or directory.

7

In other words, if Defendants prevailed on their argument that the 30-day deadline is

8

directory, Defendants could obtain a binding judgment against the 30-Day Subclass. The

9

class becomes failsafe, as Defendants define that term, only because earlier proceedings

10

pertaining to subject-matter jurisdiction required the court to determine whether the

11

30-day deadline imposed by 8 C.F.R. § 208.7(a)(1) is mandatory. (See 2/10/16 Order at

12

21-26.) This procedural happenstance does not render the class failsafe, as properly

13

defined, because the class definition does not require such a conclusion in order to

14

determine membership.11 See Waterbury, 2016 WL 3166910, at *4. Accordingly, the

15

court rejects Defendants’ argument.

16

8. Certification

17

The court finds that all of the prerequisites of Rules 23(a) and 23(b)(2) are met.

18

Accordingly, the court grants 30-Day Plaintiffs’ motion and certifies the following class:

19
20

Noncitizens who have filed or will file applications for employment
authorization that were not or will not be adjudicated within . . . 30 days . . .
and who have not or will not be granted interim employment authorization.

21

11

22

In addition, although the court has ruled that the 30-day regulatory deadline is
mandatory, the court has reserved judgment on the availability of interim EADs as a remedy.
(See 2/10/16 Order at 26 n.19.)

ORDER - 26

1
2

[This class] consists of only those applicants for whom 30 days has accrued
or will accrue under the applicable regulations, 8 C.F.R. §§ 103.2(b)(10)(i),
208.7(a)(2), (a)(4).

3

Further, the court appoints A.A., Mr. Machic Yac, and W.H. as class representatives.

4

Finally, the court directs the parties to review Rule 23(g), meet and confer, and brief the

5

appointment of class counsel in the manner described above. See Fed. R. Civ. P. 23(g);

6

supra § III.B.5.

7
8
9

IV.

CONCLUSION

Based on the foregoing analysis, the court GRANTS Defendants’ motion to
dismiss the 90-Day Plaintiffs’ and 90-Day Subclass’s claims (Dkt. # 88), DISMISSES

10

those claims as moot, and GRANTS in part and DENIES in part 30-Day Plaintiffs’

11

motion for class certification (Dkt. # 82). The court APPOINTS A.A., Mr. Machic Yac,

12

and W.H. as class representatives and DIRECTS the parties to review Rule 23(g), meet

13

and confer, and brief the appointment of class counsel in the manner described above.

14

Finally, the court DIRECTS the Clerk to update the docket to reflect substitution of

15

government officials sued in their official capacities. See supra n.1.

16

Dated this 18th day of July, 2017.

17
18

A

19

JAMES L. ROBART
United States District Judge

20
21
22

ORDER - 27