Kannika v. US Citizenship and Immigration Services

Opinion

WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8

9 ANNIE KANNIKA, et al., Case No. C20-547RSM

10 Plaintiffs, ORDER DENYING MOTION FOR v. 12 SERVICES, et al., 14 Defendants. 15 16 This matter comes before the Court on Plaintiffs’ Motion to Certify Order for 17 Interlocutory Appeal. Dkt. #36. Plaintiffs move to certify for interlocutory appeal the question 18 19 of Defendants’ production of the complete A-file in this case, as addressed by the Court’s 20 January 22, 2021, Order denying Plaintiffs’ Motion to Compel. See Dkt #34. Plaintiffs 21 acknowledge that the Court’s Order is not immediately appealable because it was not a “final 22 decision” under 28 U.S.C. § 1291 and did not grant or deny an injunction. Plaintiffs argue that 23 “what evidence the Defendants had access to in determining that Mr. Phoeun’s first marriage 24 25 was a sham marriage” is a controlling question of law, that there is “substantial ground for 26 finding that the entire A-file must be produced in an action under the Administrative Procedure 27 Act (APA),” and that the resolution of this question by the Ninth Circuit will “materially 28 advance the ultimate resolution of this litigation.” Dkt. #36 at 1–2. Plaintiffs’ only support for 1 2 why this is a controlling question of law is to speculate as to what evidence was considered by 3 USCIS. See id. at 5 (“It is entirely possible – perhaps likely – that the evidence which the 4 agency is withholding mitigates against the conclusion that Mr. Phoeun’s first marriage was a 5 sham marriage, and that discounting that evidence was an arbitrary and capricious act by the 6 agency.”). The Court has already found that Plaintiffs have obtained the allegedly withheld 7 8 documents they are talking about through a prior FOIA request, although Plaintiffs have alluded 9 to redactions in those documents without providing further detail to the Court. See Dkt. #34 at 10 3. Plaintiffs point to no specific redactions here, and in any event contesting FOIA redactions is 11 something that is properly pursued in a separate action. Plaintiffs argue that there is a 12 13 substantial ground for difference of opinion without citation to new law. In their section 14 addressing this issue, Plaintiffs cite only to Thompson v. United States Dep't of Labor, 885 F.2d 15 551, 555 (9th Cir. 1989), for the proposition that “in an action under the APA, the entire 16 administrative record must be produced before the Court.” Id. at 7. This case was cited in the 17 original Motion to Compel and the proposition does not demonstrate a potential difference of 18 19 opinion. See Dkt. #29 at 5. Plaintiffs are essentially moving for reconsideration of the Court’s 20 Order—without demonstrating error. Finally, Plaintiffs maintain that an immediate appeal will 21 materially advance the litigation because the Court needs “full knowledge of the record” to 22 determine whether the agency acted in an arbitrary and capricious manner. Dkt. # 36 at 8. 23 Under 28 U.S.C. § 1292(b), a district court may grant interlocutory appeal if an order 24 25 “involves a controlling question of law” where there is “substantial ground for difference of 26 opinion” and an immediate appeal will “materially advance the ultimate termination of the 27 litigation.” The proponent must demonstrate that “exceptional circumstances justify a 28 departure from the basic policy of postponing appellate review until after the entry of a final 1 2 judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S. Ct. 2454, 57 L. Ed. 2d 3 351 (1978). “It is well settled that ‘the mere presence of a disputed issue that is a question of 4 first impression, standing alone, is insufficient to demonstrate a substantial ground for 5 difference of opinion.’” Couch v. Telescope Inc., 611 F.3d 629, 634 (9th Cir. 2010) (quoting In 6 re Flor, 79 F.3d 281, 284 (2d Cir. 1996)). Courts traditionally find a substantial ground for 7 8 difference of opinion where “the circuits are in dispute on the question and the court of appeals 9 of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if 10 novel and difficult questions of first impression are presented.” Id. (quoting 3 Federal 11 Procedure, Lawyers Ed. § 3:212 (2010)); see also Reese v. BP Exploration (Alaska) Inc., 643 12 13 F.3d 681, 688 (9th Cir. 2011) (“[W]hen novel legal issues are presented, on which fair-minded 14 jurists might reach contradictory conclusions, a novel issue may be certified for interlocutory 15 appeal without first awaiting development of contradictory precedent.”). 16 The Court finds that Plaintiffs have failed to meet their burden of demonstrating that 17 interlocutory appeal is warranted in this case. The Court seriously questions whether this 18 19 discovery issue constitutes a controlling question of law. In any event, Plaintiffs’ disagreement 20 with the Court’s prior ruling alone does not create the required “substantial difference of 21 opinion.” Plaintiffs have failed to demonstrate that this appeal will “materially advance the 22 ultimate termination of the litigation.” Plaintiffs cannot argue that the potential reversal of the 23 Court’s ruling alone satisfies this element. Such an argument could be made in every case by a 24 25 dissatisfied party. Plaintiffs have not met the above standards for interlocutory appeal. 26 Having reviewed the relevant briefing, the Court finds and ORDERS that Plaintiffs’ 27 Motion to Certify Order for Interlocutory Appeal, Dkt. #36, is DENIED. 28 1 2 DATED this 19th day of February, 2021. 3 4 A 5 7 CHIEF UNITED STATES DISTRICT JUDGE

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