Facts
- Osman Gundas, a Turkish citizen, filed a visa application sponsored by a school in the U.S. after his previous B-2 tourist visa was revoked. [lines="10-14"], [lines="75-80"], [lines="81-83"].
- His H-1 visa application has been in administrative processing since an interview at the U.S. Consulate in Iraq in May 2023, with no updates until the expiration of the petition in March 2023. [lines="85-88"], [lines="106-110"].
- Gundas sought congressional intervention to expedite a decision on his visa application but received confirmation from the consular officer that the processing was ongoing without further information provided. [lines="112-118"].
- Following the delays, Gundas filed a suit on April 14, 2024, claiming unreasonable delay under the Mandamus Act and the APA. [lines="122-126"].
- The Government moved to dismiss Gundas’s complaint, arguing lack of standing and failure to state a claim. [lines="128-137"].
Issues
- Does Osman Gundas have standing to seek judicial review of the delayed visa application? [lines="240-242"].
- Is the consular non-reviewability doctrine applicable to Gundas’s claims regarding administrative processing of his visa? [lines="331-332"].
- Did Gundas sufficiently identify a clear, non-discretionary duty compelling the Government to act on his visa application? [lines="433-434"].
Holdings
- Gundas has standing as the delay in his visa processing caused concrete harms, which satisfies the injury-in-fact requirement. [lines="257-292"].
- The consular non-reviewability doctrine applies, barring judicial review of the visa decision as it was deemed a final refusal. [lines="330-348"].
- Gundas did not establish a clear, non-discretionary duty requiring the Government to adjudicate his visa application more swiftly than it did. [lines="467-471"].
OPINION
Case Information
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JOSE ESCOBEDO, Case No. 1:24-cv-01457-JLT-SKO Plaintiff, ORDER TO SHOW CAUSE RE v. SUPPLEMENTAL JURISDICTION EL RINCONCITO MEXICAN GRILL, LLC. 14 DAY DEADLINE and FLIPSIDE CHRISTIAN CHURCH , Defendants.
On November 27, 2024, Plaintiff Jose Escobedo (“Plaintiff”) filed his complaint against Defendants El Rinconcito Mexican Grill, LLC and Flipside Christian Church (“Defendants”), alleging claims under the Americans with Disabilities Act (“ADA”), California’s Unruh Civil Rights Act (“Unruh Act”), and California’s Health and Safety Code. (Doc. 1). These claims stem from alleged barriers Plaintiff encountered (such as lack of designated accessible parking spots and uneven paths of travel) while he visited “El Rinconcito Mexican Grill,” a facility owned, operated, or leased by Defendants. ( See id .)
Based upon the Ninth Circuit opinion in Vo v. Choi , the Court will order Plaintiff to show cause why the Court should not decline to exercise supplemental jurisdiction over Plaintiff’s state law claims. 28 U.S.C. § 1367(c); Vo v. Choi , 49 F.4th 1167 (9th Cir. 2022) (holding the district court properly declined to exercise supplemental jurisdiction in a joint Unruh Act and ADA case).
In the Unruh Act, a state law cause of action expands the remedies available in a private action. California, in response to the resulting substantial volume of claims asserted under the Unruh Act and the concern that high-frequency litigants may be using the statute to obtain monetary relief for themselves without accompanying adjustments to locations to assure accessibility to others, enacted filing restrictions designed to address that concern. Arroyo v. Rosas , 19 F.4th 1202, 1211– 12 (9th Cir. 2021). These heightened pleading requirements apply to actions alleging a “construction-related accessibility claim,” which California law defines as “any civil claim in a civil action with respect to a place of public accommodation, including but not limited to, a claim brought under Section 51, 54, 54.1, or 55, based wholly or in part on an alleged violation of any construction- related accessibility standard.” Cal. Civ. Code § 55.52(a)(1). The requirements apply to claims brought under the Unruh Act as well as to related claims under the California Health & Safety Code. See Gilbert v. Singh , No. 1:21cv1338-AWI-HBK, 2023 WL 2239335, *2 (E.D. Cal. Feb. 27, 2023).
California imposes additional limitations on “high-frequency litigants,” defined as: A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.
Cal. Civ. Proc. Code § 425.55(b)(1). The definition of “high-frequency litigant” also extends to attorneys. Cal. Civ. Proc. Code § 425.55(b)(2). “High-frequency litigants” are subject to a special filing fee and further heightened pleading requirements. See Cal. Gov. Code § 70616.5; Cal. Civ. Proc. Code § 425.50(a)(4)(A). By enacting restrictions on the filing of construction-related accessibility claims, California has expressed a desire to limit the financial burdens California’s businesses may face for claims for statutory damages under the Unruh Act and the California Health & Safety Code . See Arroyo , 19 F.4th at 1206-07, 1212; Gilbert , 2023 WL 2239335, *2. The Ninth Circuit has also expressed “concerns about comity and fairness” by permitting plaintiffs to circumvent “California’s procedural requirements.” Vo , 49 F.4th at 1171. Plaintiffs who file these actions in federal court evade these limits and pursue state law damages in a manner inconsistent with the state law’s requirements. See generally, Arroyo , 19 F.4th at 1211–12; Vo v , 49 F.4th at 1171–72.
In an action in which a district court possesses original jurisdiction, that court “shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Even if supplemental jurisdiction exists, however, district courts have discretion to decline to exercise supplemental jurisdiction. 28 U.S.C. § 1367(c). Such discretion may be exercised “[d]epending on a host of factors” including “the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims.” City of Chicago v. Int’l Coll. of Surgeons , 522 U.S. 156, 173 (1997).
A review of Plaintiff Jose Escobedo’s prior cases from this District reveals that he has filed ten or more complaints alleging a construction-related accessibility violation within the twelve- month period immediately preceding the filing of the current complaint. [1] See Jacobsen v. Mims , No. 1:13-CV-00256-SKO-HC, 2013 WL 1284242, at *2 (E.D. Cal. Mar. 28, 2013) (“The Court may take judicial notice of court records.”).
Accordingly, Plaintiff is ORDERED to show cause, in writing, within fourteen (14) days of service of this order , why the Court should not decline to exercise supplemental jurisdiction over Plaintiff’s state law claims. Plaintiff is warned that a failure to respond may result in a recommendation to dismiss of the entire action without prejudice. Fed. R. Civ. P. 41(b) (stating that dismissal is warranted “[i]f the plaintiff fails to . . . comply with . . . a court order”); see also Hells Canyon Pres. Council v. U.S. Forest Serv. , 403 F.3d 683, 689 (9th Cir. 2005). An inadequate response may result in a recommendation that supplemental jurisdiction over Plaintiff’s state law claims be declined and that they be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c). IT IS SO ORDERED. /s/ Sheila K. Oberto .
Dated: December 3, 2024 UNITED STATES MAGISTRATE JUDGE
[1] Indeed, Plaintiff recently filed a response in another case on November 20, 2024, acknowledging that he would be considered a high-frequency litigant under California law. See Escobedo v. Papazian , 1:24-cv-00636-SKO (Doc. 31, p. 2: “Plaintiff acknowledges that he would be considered a high-frequency litigant under California law as he filed more than ten construction-related accessibility claims in the twelve months preceding the filing of the instant action.”).