Afghan v. Antony J. Blinken

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 3, 2023 Decided June 7, 2024
No. 23-5025
AFGHAN AND IRAQI ALLIES, UNDER SERIOUS THREAT
BECAUSE OF THEIR FAITHFUL SERVICE TO THE UNITED
STATES, ON THEIR OWN AND ON BEHALF OF OTHERS
SIMILARLY SITUATED,
APPELLEE
v.
ANTONY J. BLINKEN, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01388)
Steven A. Platt, Senior Litigation Counsel, U.S.
Department of Justice, argued the cause for appellants. With
him on the briefs were Brian M. Boynton, Principal Deputy
Assistant Attorney General, Yamileth G. Davila, Assistant
Director, and Ruth Ann Mueller, Sean L. King, and David J.
Byerley, Trial Attorneys.
Mariko Hirose argued the cause for appellee. With her on
the brief were Deepa Alagesan, Melissa S. Keaney, Linda H.
Martin, David Y. Livshiz, Rebecca C. Kerr, and Justin C.
Simeone. Anika Havaldar entered an appearance.

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Travis L. Gray and Stephanie F. Cagniart were on the
brief for amicus curiae Ambassador Ryan C. Crocker in
support of appellee.
Robert Reyes Landicho, Jeremy C. Marwell, Meghan
Natenson, and Robert H. Wu were on the brief for amicus
curiae U.S. Representative Earl Blumenauer in support of
appellee.
Christopher W. Dempsey was on the brief for amicus
curiae Association of Wartime Allies in support of appellee.
Before: SRINIVASAN, Chief Judge, PILLARD and KATSAS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: Congress has authorized the
Secretary of State to give special-immigrant visas to certain
Iraqi and Afghan nationals who face serious threats because of
their faithful service to the United States during recent armed
conflicts. After initial applications for these visas languished,
Congress further provided that the government “shall” improve
its efficiency so that it “should” process the applications within
nine months, except in cases involving unusual national-
security risks.
The plaintiffs here represent a class of individuals who
have had applications for such visas pending for more than nine
months. In 2019, the district court held that the government
had unreasonably delayed processing these applications. In
2020, the court approved a plan requiring the prompt
adjudication of applications filed by class members and
pending for more than nine months as of May 21, 2020. In
2022, the Secretary moved to terminate or modify the plan
based on changed circumstances in the two years since 2020.

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The district court recognized that changed circumstances
warrant modifying the plan, but it refused to terminate the plan.
The government appeals the refusal to terminate. We affirm.
I
For much of the last few decades, the United States has
engaged in armed conflict in Iraq and Afghanistan. During this
time, many Iraqi and Afghan nationals helped the United
States—often at great personal risk. To aid such individuals,
Congress enacted the Refugee Crisis in Iraq Act of 2007, Pub.
L. No. 110-181, §§ 1241–49, 122 Stat. 395 (2008) (RCIA), and
the Afghan Allies Protection Act of 2009, Pub. L. No. 111-8,
§§ 601–02, 123 Stat. 807 (AAPA).1 These statutes authorize
the Secretary of State, in consultation with the Secretary of
Homeland Security, to confer immigration benefits on Iraqi
and Afghan nationals who have worked for the United States
Government or the International Security Assistance Force for
at least one year, provided “faithful and valuable service,” and
experienced “an ongoing serious threat” as a result. RCIA
§ 1244(b)(1); AAPA § 602(b)(2)(A). Specifically, the
Secretary of State may confer “the status of a special
immigrant” on aliens who satisfy these criteria, apply for
special-immigrant visas, establish eligibility for such visas, and
clear a background check. RCIA § 1244(a); AAPA
§ 602(b)(1). The Secretary also may confer the same status on
immediate family members of such aliens. RCIA
§ 1244(b)(2)(A)–(B); AAPA § 602(b)(2)(B)(i)–(ii). With such
status, these individuals may receive visas reserved for “special
immigrants.” See 8 U.S.C. §§ 1101(a)(27), 1153(b)(4).
In 2013, Congress amended the RCIA and AAPA to
address the slow pace at which the government had been
1 The RCIA and AAPA are codified as amended in notes to 8
U.S.C. §§ 1157 and 1101, respectively.

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processing applications. See National Defense Authorization
Act for Fiscal Year 2014, Pub. L. No. 113-66, §§ 1218–19, 127
Stat. 672, 910–15 (2013). As amended, the statutes direct that
the Secretaries of State and Homeland Security, in consultation
with the Secretary of Defense, “shall improve the efficiency by
which applications for special immigrant visas [under both
statutes] are processed, so that all steps under the control of the
respective departments incidental to the issuance of such visas,
including required screenings and background checks, should
be completed not later than 9 months after the date on which
an eligible alien submits all required materials to complete an
application for such visa.” RCIA § 1242(c)(1); AAPA
§ 602(b)(4)(A).2 At the same time, Congress qualified this
directive by providing that “[n]othing” in it “shall be
construed” to limit the Secretaries’ ability to “take longer than
9 months” to consider visa applications in “high-risk cases for
which satisfaction of national security concerns requires
additional time.” RCIA § 1242(c)(2); AAPA § 602(b)(4)(B).
Congress also required the Secretaries to make quarterly
reports about the processing of these visa applications, which
must explain “the reasons for the failure to process any
applications that have been pending for longer than 9 months.”
RCIA § 1248(f)–(g); AAPA § 602(b)(11)–(12).
In 2018, five applicants for special-immigrant visas under
the RCIA and AAPA—four from Afghanistan and one from
Iraq—filed this lawsuit. These plaintiffs sought to represent a
class of individuals who have had such applications awaiting
government action for more than nine months. The plaintiffs
alleged that the government has unreasonably delayed its
2 In 2021, Congress amended this language in the AAPA, but
not the RCIA, to elaborate that the steps under control of the
government include “Chief of Mission approval.” Emergency
Security Supplemental Appropriations Act, Pub. L. No. 117-31,
§ 401(a)(3), 135 Stat. 309, 316 (2021).

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processing and adjudication of these applications. Counts one
and two of the complaint sought declaratory and injunctive
relief with respect to the alleged unreasonable delay. Counts
three through five of the complaint raised other claims. The
district court provisionally certified the class, denied a motion
to dismiss, permitted discovery, and consolidated a
preliminary-injunction hearing with a merits trial on the first
two counts of the complaint.
In September 2019, the district court granted partial
summary judgment to the plaintiffs on their first two claims.
To assess unreasonable delay, the court applied our decision in
Telecommunications Research & Action Center v. FCC, 750
F.2d 70 (D.C. Cir. 1984) (TRAC), which requires consideration
of how long the agency has taken to act, the interests affected
by its delay, and the effect of expedition on other agency
priorities. See id. at 80. As to the first consideration, the court
stressed the substantial difference between the “9-month
statutory benchmark” imposed by Congress and the “5-year
average wait time” endured by class members. J.A. 10. As to
the second, the court concluded that many class members face
a substantial risk of retribution for assisting the United States
and that the risk has not dissipated over time. Id. at 14–15. As
to the third, the court concluded that the government had not
identified any “specific agency activities” that would be
harmed if visa applications under the RCIA and AAPA were
processed more quickly. Id. at 16. Based on these
considerations, the court declared that the government had
unreasonably delayed its processing and adjudication of class
members’ visa applications. Id. at 20. As a remedy, the court
ordered the government to develop and submit “a plan for
promptly processing and adjudicating the applications of
current class members.” Id. at 19. In later orders, the court
denied reconsideration and finalized its class certification.

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In June 2020, the district court entered an injunction
approving a plan with specific timelines for adjudicating
special-visa applications that had been pending for more than
nine months as of May 21, 2020. The adjudication plan
recognized and took account of challenges arising from the
COVID-19 pandemic, from closure of the Visa Unit at the
United States embassy in Afghanistan, and from severe limits
on the availability of consular services in Iraq. J.A. 68. The
plan also accommodated cases “requir[ing] additional
processing time to reconcile any national security concerns.”
Id. at 69. The plan required the government to submit progress
reports every 90 days. Id. at 70–75. The government appealed
the injunction but then voluntarily dismissed its appeal. See
Afghan & Iraqi Allies v. Blinken, No. 20-5251, 2021 WL
4765441 (D.C. Cir. Sept. 16, 2021) (mem).
In October 2021, the parties jointly sought a temporary
stay of the adjudication plan to pursue settlement negotiations.
The district court granted the stay and, after the negotiations
broke down, extended it over the plaintiffs’ objections. The
plaintiffs appealed the district court’s refusal to lift the stay, but
we dismissed that interlocutory appeal for lack of jurisdiction.
See Afghan & Iraqi Allies v. Blinken, No. 22-5183, Doc.
1973117 (D.C. Cir. Nov. 10, 2022). The stay remains in effect.
In May 2022, the government moved for relief from the
adjudication plan based on changed circumstances. Among
other things, the government cited a surge in visa applications
after the United States withdrew from Afghanistan, increased
difficulty in processing applications following closure of the
embassy in Kabul, worsening security risks in Iraq, ongoing
complications from the pandemic, a drain on agency resources
due to needs in Ukraine, and a significant improvement in the
average times for processing visa applications under the RCIA
and AAPA.

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The district court granted relief in part. It held that these
factual developments were “significant” and “warrant[ed]
allowing the government to propose modified timing
benchmarks, but not to abandon its reporting or explanation
obligations.” J.A. 994. In reaching this conclusion, the court
reassessed the TRAC factors in light of the changed
circumstances. Id. at 995. The court acknowledged that the
government’s job of adjudicating visa applications had
“undoubtably become more difficult,” but it noted that many
applications remained pending for more than nine months. Id.
at 995–96. The court also concluded that additional applicants
had entered the class since 2020 and that continuing delays had
put all the plaintiffs even more at risk. Id. at 997–98. The court
referred the case to a magistrate judge to oversee the
development of a new adjudication plan that accommodated
the various changed circumstances and covered newly added
class members. Id. at 999–1001.
The government appealed the court’s refusal to terminate
the injunction in its entirety. We have jurisdiction under 28
U.S.C. § 1292(a)(1), which authorizes review of interlocutory
orders “refusing to dissolve or modify injunctions.”
II
We begin with preliminary points about the governing
procedural rule and our standard of review.
A
In the district court, the government moved to terminate
the adjudication plan under Federal Rules of Civil Procedure
54(b) and 60(b). These two rules afford different degrees of
latitude to the district court to modify its rulings in ongoing
cases. Rule 54(b) provides for the disposition of cases
involving multiple claims or parties. It permits district courts

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to enter “final judgment” as to a subset of claims or parties
“only if the court expressly determines that there is no just
reason for delay.” Otherwise, any order “that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all
the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’ rights
and liabilities.” Rule 60(b) sets forth six narrow grounds on
which parties may seek relief “from a final judgment, order, or
proceeding.” The government contends that Rule 54(b), which
allows district courts to revisit non-final orders, governed its
motion. The plaintiffs counter that Rule 60(b), which
significantly restricts the ability of district courts to revisit final
orders, alone governed the motion.
On this point, we agree with the government. The 2020
order addressed counts one and two of the complaint. But the
complaint raised three other counts, and the district court has
neither ruled on them nor entered a partial final judgment after
finding that there is no just reason for delay. Because the
district court did not enter final judgment on any counts in the
action, it could revise its orders “as justice requires.” Capitol
Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217,
227 (D.C. Cir. 2011) (cleaned up).
The plaintiffs object that Rule 54(b) does not apply to
permanent injunctions because they are immediately
appealable without any finding that there is “no just reason for
delay.” But a permanent injunction addressing a subset of
counts is neither “final” under Rule 54(b) nor immediately
appealable as a “final” decision under 28 U.S.C. § 1291. Such
injunctive orders are immediately appealable, but only because
28 U.S.C. § 1292(a)(1) permits review of interlocutory orders
granting, denying, modifying, or refusing to modify
injunctions. In sum, injunctions are no more “final” than any

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other orders for purposes of revision consistent with Rule
54(b). We thus evaluate the district court’s refusal to terminate
the injunction as a partial denial of a Rule 54(b) motion to
reconsider a non-final order.
B
We review the denial of Rule 54(b) motions to reconsider
for abuse of discretion. Capitol Sprinkler, 630 F.3d at 225–26.
Such deferential review is particularly appropriate where
reconsideration involves unreasonable-delay determinations.
In the first instance, such a determination turns on
“consideration of the particular facts and circumstances”
regarding the specific agency action at issue. Mashpee
Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094,
1100 (D.C. Cir. 2003) (citing TRAC, 750 F.2d at 80). So too
does an assessment of how changed circumstances should or
should not affect a TRAC order. In general, when a district
court decides questions that are highly fact-intensive,
deferential review is appropriate. See, e.g., Highmark Inc. v.
Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 564 (2014)
(determination whether a case is “exceptional”); Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 403–04 (1990)
(determination whether Rule 11 sanctions are warranted);
Pierce v. Underwood, 487 U.S. 552, 557–62 (1988)
(determination whether an agency’s position was
“substantially justified”). A conclusion that changed facts do
not justify terminating an injunction to remedy past
unreasonable delay fits comfortably within this line of cases.
The government responds that Cobell v. Norton, 240 F.3d
1081 (D.C. Cir. 2001), requires de novo review of a finding of
unreasonable delay. But Cobell said only that “the legal
standard used to determine whether agency delay is
unreasonable is a question of law to be reviewed de novo.” Id.

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at 1096. The parties here agree that TRAC establishes the
governing legal standard, and Cobell does not speak to the
standard for reviewing the district court’s TRAC-factor
balancing in individual cases. Much less does it require de
novo review of an assessment whether new developments
require modifying an injunction to remedy past unreasonable
delays. For that Rule 54(b) question, our review is deferential.
III
In TRAC, this Court set forth a framework for analyzing
claims of unreasonable agency delay. We highlighted six
considerations that, although neither “ironclad” nor exhaustive,
still provide “useful guidance”:
(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 need not find
any impropriety lurking behind agency lassitude in
order to hold that agency action is unreasonably
delayed.
750 F.2d at 80 (cleaned up). TRAC set forth this framework to
assess whether agency delays are “so egregious as to warrant
mandamus” under the All Writs Act, in cases where the
delayed action would be directly reviewable in this Court. See

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id. at 75, 79–80. But we have routinely applied the same
framework to assess claims that agency action has been
“unreasonably delayed” for purposes of the Administrative
Procedure Act, 5 U.S.C. § 706(1). See, e.g., Da Costa v.
Immigr. Inv. Program Off., 80 F.4th 330, 339–40 (D.C. Cir.
2023); Mashpee, 336 F.3d at 1099–1100. Upon finding such
an unreasonable delay, the district court need not order
immediate action, but may instead establish deadlines to ensure
that the agency “is proceeding as diligently as possible with the
resources available to it.” See Mashpee, 336 F.3d at 1102.
The parties here make sweeping arguments, but the
question before us is narrow. In seeking termination of the
injunction, the government did not contend that the district
court impermissibly found unreasonable delay in 2019 or
impermissibly entered the injunction in 2020. Instead, it
sought relief based on changed circumstances between 2020
and 2022. So, we take the 2019 and 2020 orders as a given,
and we consider only whether the district court reasonably
responded to the changes. Moreover, the injunction governs
the claims of only a subset of the class—individuals with
applications for visas under the RCIA or AAPA that had been
pending for more than nine months as of May 21, 2020. The
district court contemplated future injunctions governing the
claims of other class members, but the appropriateness of any
such injunction is not presently before us. Finally, the district
court granted the government considerable relief even as to
class members covered by the 2020 injunction: The court held
that changed circumstances warrant a new plan, stayed the
2020 plan, referred the case to a magistrate judge, and ordered
the parties to develop a new plan. So, the government prevailed
on its argument that intervening factual developments warrant
changing the 2020 injunction. To win here, the government
must show that no continued judicial involvement remains

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appropriate, and that it was an abuse of discretion for the
district court to conclude otherwise.
We are tempted to reject this contention based on one
overarching consideration: Some beneficiaries of the 2020
injunction—who had visa applications pending for more than
nine months as of May 21, 2020—still have not had their
applications fully adjudicated. The parties stipulated that there
were thousands of such beneficiaries in October 2021, and it
remains undisputed that at least some of these old applications
remain pending.3 If the delay in these adjudications was
already unreasonable when the injunction was entered in June
2020, we struggle to see how changed circumstances could
make those delays not unreasonable some two years later,
when the government moved to terminate the injunction. Of
course, intervening changes could affect the reasonableness of
additional future delays, as the district court recognized. But
post-2020 changes do not retroactively convert past
unreasonable delays into reasonable delays. And with the
terms of the successor injunction still undetermined, we cannot
decide in advance whether it will sufficiently accommodate the
increased difficulties faced by the government.
While this problem alone might doom the government’s
case, the district court did update its original analysis of the
various TRAC factors to account for changed circumstances.
We need not consider whether this updating was necessary for
the court to deny the motion to terminate the injunction in its
3 The government acknowledged as much at oral argument,
Oral Arg. at 2:06–29, and a January 2024 report on the RCIA
confirms this point. The RCIA required principal visa applications
to be filed by September 30, 2014. RCIA § 1244(c)(3)(C)(iii). Yet
the report indicates that some applications are still pending—nearly
a decade after the deadline for applying. U.S. Dep’t of State, Report
of the Iraqi SIV Program–January 2024.

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entirety. As we now explain, the court permissibly concluded,
based on its updated TRAC analysis, that some continued
judicial involvement remains appropriate.
A
The first two TRAC factors focus on the extent of and
reasons for the agency delay. The first factor is that “the time
agencies take to make decisions must be governed by a rule of
reason.” TRAC, 750 F.2d at 80 (cleaned up). We have
described this as the “most important” consideration under
TRAC. In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C.
Cir. 2008). The second factor is that, “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.” TRAC, 750 F.2d at 80. The second TRAC
consideration thus “gives content to the first.” In re United
Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir.
1999).
The district court jointly considered and reasonably
balanced the first two TRAC factors. It acknowledged that the
task of adjudicating visa applications had “undoubtably
become more difficult” after the withdrawal from Afghanistan
led to a surge in special-immigrant visa applications and
closure of the embassy in Kabul. J.A. 995. At the same time,
the court noted that the nine-month timeline remained
unchanged and that visa applications were “still pending
beyond the statutory deadline.” Id. at 996. The court further
noted that the COVID-19 pandemic and security risks in
Baghdad had been present at all relevant times. Id. at 996–97.
For these reasons, the court concluded that the first and second
TRAC factors “still favor Plaintiffs, albeit slightly less heavily
than before.” Id. at 997.

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The government contends that the district court gave too
much weight to the statutory timeline. But Congress mandated
that the Secretaries “shall improve the efficiency” for
processing visa applications under the RCIA and AAPA, so
that all steps within their control “should be completed not later
than 9 months after” a qualifying alien applies for a visa. RCIA
§ 1242(c)(1); AAPA § 602(b)(4)(A). The government argues
that “should” can sometimes be precatory. But here, contextual
clues suggest something closer to a command. For one thing,
Congress linked the nine-month benchmark that the Secretaries
“should” meet to a command that they “shall” improve
efficiency for processing visa applications. Also, if the nine-
month timeline were solely aspirational, there would have been
little reason to carve out “high-risk cases for which satisfaction
of national security concerns requires additional time.” RCIA
§ 1242(c)(2); AAPA § 602(b)(4)(B). The carveout suggests
that a nine-month timeline is appropriate unless a case presents
distinctively high risks to the national security.
In any event, the district court treated the timeline as only
one consideration among many. And TRAC asks only whether
Congress has “provided a timetable or other indication of the
speed with which it expects the agency to proceed.” 750 F.2d
at 80. Even when a statutory timeline is clearly precatory, like
one establishing a “sense of Congress” for when the processing
of visa applications “should” be completed, we have still
treated the deadline as a “ruler against which the agency’s
progress must be measured.” Da Costa, 80 F.4th at 344
(cleaned up). Whether we call the nine-month statutory
timeline a “rule” or a “ruler,” the implication is the same: It
should play an important role in assessing the reasonableness
of the government’s pace of adjudication.
Looking beyond the timeline, the government argues that
the district court failed to account for a host of changed facts

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involving either (i) improvements in how it processes special-
immigrant visa applications or (ii) increased difficulties in
doing so. Without question, the intervening circumstances
cited by the government are significant. For example, the
withdrawal of the United States from Afghanistan in 2021
caused the number of monthly visa applications under the
AAPA to increase by 443 percent. Likewise, closure of the
U.S. embassy in Kabul and travel restrictions imposed by the
Taliban have made it substantially more difficult to conduct
necessary interviews to process these applications. And the
government provides at least some evidence of improved
efficiencies between 2019 and 2022. These developments
plainly would bear on whether a court could find unreasonable
delay as of today or in the future. They also would bear on the
contours of any future injunction, as would considerations
regarding continuing fallout from the pandemic and continuing
security concerns regarding the U.S. embassy in Baghdad.
But again, the only question before us is whether the
district court was legally compelled to entirely terminate an
adjudication plan for individuals with visa applications
pending for more than nine months as of May 21, 2020. The
district court found that these delays had already become
unreasonable by then, and the government has not challenged
that finding. Whatever improvements it might have made in
processing other applications, beneficiaries of the 2020
adjudication plan had applications pending for over three-and-
a-half years when the district court declined to terminate the
plan. Likewise, increased difficulties in processing visa
applications may make future delays more understandable, and
they may thus be relevant to the terms of any modified plan.
But they cannot retroactively make reasonable the already-
unreasonable delays for the beneficiaries of the 2020 plan.

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In sum, the district court permissibly concluded that the
first two TRAC factors do not warrant entirely terminating the
adjudication plan.
B
The third and fifth TRAC factors focus on the interests
affected by agency delay. The third factor says “delays that
might be reasonable in the sphere of economic regulation are
less tolerable when human health and welfare are at stake.”
TRAC, 750 F.2d at 80. The fifth factor addresses “the nature
and extent of the interests prejudiced by the delay.” Id.
The district court assessed these factors jointly. In its 2020
opinion, the court concluded that they support the plaintiffs
because many class members face significant risks of harm for
having assisted the United States. J.A. 14–15. Then, in its
2022 opinion, the court concluded that these factors weigh
“more heavily for Plaintiffs” than before, because continuing
delays have put all class members at continued and increasing
risk. Id. at 997–98.
The government points to competing interests—including
health and safety ones—implicated by the RCIA and AAPA.
Specifically, it invokes concerns about foreign policy, national
security, terrorism, and COVID. The parties dispute whether
these concerns bear on the third and fifth TRAC factors at all.
According to the plaintiffs, these factors address only burdens
to the party seeking agency action, not burdens to the
government or systemwide risks from proceeding too quickly.
We need not address this question because the government’s
concerns plainly bear on the overall reasonableness of its
conduct and the appropriateness of continuing judicial
oversight. So the question of which, if any, of the open-ended,
non-exhaustive TRAC factors they fall under is largely

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academic. See TRAC, 750 F.2d at 80 (factors provide only “the
hexagonal contours of a standard,” which is “hardly ironclad”).
The district court declined to address the government’s
arguments under the third and fifth TRAC factors, but it did
reasonably address the government’s underlying concerns. In
its 2020 opinion, the court noted that the existence of foreign-
policy and national-security concerns was apparent when
Congress established the special-immigrant visa programs for
Iraqi and Afghan allies and then set the nine-month timeline for
processing applications. J.A. 16 n.12. Likewise, in its 2022
opinion, the court noted that difficulties in processing
applications from COVID and terrorist attacks in Iraq had not
substantially worsened since its 2020 order. Id. at 996–97.
Moreover, although the situation in Afghanistan had obviously
become much worse, that not only affected processing times,
but also increased the risk of harm to Afghans who had
supported the United States. Id. at 998. And in any event, the
passage of two additional years only heightened the interests of
the original beneficiaries of the 2020 adjudication plan. Id.
The district court reasonably explained why the injunction
should not be fully eliminated.4
4 The government contends more broadly that courts should
leave the administration of visa programs to Congress and the
Executive Branch. But it does not contend that the doctrine of
consular non-reviewability, which bars judicial review of decisions
to grant or deny visas to aliens outside the United States, applies to
the claims at issue in this case. Cf. Saavedra Bruno v. Albright, 197
F.3d 1153, 1156–64 (D.C. Cir. 1999). Nor does it contend that
Kleindienst v. Mandel, 408 U.S. 753 (1972), which permits only
limited constitutional scrutiny of certain visa decisions, requires
modifying the TRAC standards for addressing unreasonable-delay
claims brought under the APA. Absent such categorical limits on
our review, we are left to consider whether the district court

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C
The fourth TRAC factor addresses “the effect of expediting
delayed action on agency activities of a higher or competing
priority.” 750 F.2d at 80. In its 2020 opinion, the district court
concluded that the government had not identified any “specific
agency activities” that would be harmed if it had to process
RCIA and AAPA visa applications more quickly. J.A. 16. The
court then adhered to this conclusion in its 2022 opinion. Id. at
999.
The government’s response stresses In re Barr
Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991). There, one
drug manufacturer sought an injunction compelling the
government to adjudicate more quickly its pending
applications to sell generic drugs. Id. at 73. We denied relief
because an order putting one applicant “at the head of the queue
simply moves all others back one space and produces no net
gain.” Id. at 75. Other precedents likewise stress concerns
about “line-jumping.” Da Costa, 80 F.4th at 339; see also
Mashpee, 336 F.3d at 1100–02. But here, there is no such
concern within the RCIA and AAPA programs. The class
includes all individuals with visa applications pending for more
than nine months, and the 2020 plan established guidelines for
disposing of all applications pending the longest—those
pending for more than nine months as of May 21, 2020. So the
plan did not lead to anyone jumping the line to move ahead of
others with longer-pending applications.
Of course, we must also consider the possibility of harm
to other programs. The government highlights its efforts to
resettle Iraqi and Afghan nationals in third-party countries, to
permissibly balanced the various competing interests in declining to
terminate the 2020 adjudication plan.

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alleviate the humanitarian crisis in Ukraine, and to reduce the
unprecedented visa backlog caused by the pandemic. And
because agencies have only finite resources, any order to step
up activity in one program may harm others. Yet this concern
can go only so far—agency resources always are limited, and
we have never suggested that the possibility of their shifting is
always enough to make any TRAC relief inappropriate.
Sometimes the right answer is to grant relief with a light
touch—for example, by requiring periodic progress reports and
reserving the possibility of “additional appropriate relief” in the
future. In re United Mine Workers, 190 F.3d at 556.
Given these considerations, the district court reasonably
discounted the fourth TRAC factor. The government ticks off
its multiple competing priorities, many of which arose after the
district court’s 2019 and 2020 orders. But it has not explained
with precision the personnel or resource tradeoffs that it faces,
or why those constraints justify a complete end to this case.
Given this lack of specifics, the district court reasonably
concluded that the other TRAC factors still outweigh the
government’s generalized appeals to resource constraints.
Furthermore, the district court has accounted for resource
constraints. For example, its 2019 decision did not order any
immediate government action on pending visa applications, but
instead required the development of a plan that the parties
submitted jointly. Moreover, the plan did not threaten
contempt if the government failed to meet its timelines, but
only required the government to explain the reasons for its
failure and potentially meet and confer with the plaintiffs. This
flexible, measured approach substantially mitigates the
government’s concerns about satisfying its various obligations.
Finally, as noted above, the district court recognized that
intervening circumstances had made the government’s task
“undoubtably … more difficult,” J.A. 995, thus warranting a

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new plan that may include even greater accommodations. And
if the government concludes that such further accommodations
do not go far enough, it may of course appeal the entry of any
successor injunction.
D
The sixth TRAC factor notes that “the court need not find
any impropriety lurking behind agency lassitude in order to
hold that agency action is unreasonably delayed.” 750 F.2d at
80 (cleaned up). In its 2019 order, the district court found it
unnecessary to address this factor. J.A. 9. In its 2022 order,
the court assumed that there was no impropriety yet continued
to discount this factor. Id. at 999.
The government argues that its good faith affirmatively
tips the scales in its favor. But in TRAC itself, we said that bad
faith was unnecessary to support judicial intervention. 750
F.2d at 80. And in Da Costa, we described the sixth TRAC
factor as “neutral” when there was no plausible evidence of bad
faith. 80 F.4th at 345–46. Moreover, even if the government
were correct, it strains credulity to suppose that placing some
weight on its side of the scale, to account for good faith, would
have materially affected the district court’s overall assessment
of unreasonableness.
IV
The district court reasonably refused to order a complete
termination of the adjudication plan. And no dispute about the
details of the original plan—or of any future successor plan—
is currently before this Court.
Affirmed.

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