If you are looking for some ammo against the common, but frustrating Government motion to dismiss argument that mandamus plaintiffs are just “line skippers,” check out Lyons v. USCIS. Here is some of the judge’s analysis in that case:
First, “it is not apparent from the face of . . . the complaint, or from any material[s] for which USCIS has requested judicial notice,” that a resolution of the unreasonable-delay claim in the plaintiff’s favor would in fact permit the plaintiff to jump the line at the expense of others. Keller Wurtz, 2020 WL 4673949, at *5. At the pleadings stage, the Court cannot accept USCIS’s representations to that effect as true. USCIS will have an opportunity to prove that the fourth TRAC factor cuts in its favor later in this litigation, but the Court currently lacks “an evidentiary record showing that granting [the requested] relief would serve only to delay other applications equally deserving of consideration.” Id. Second, the ultimate relief to be awarded in this case cannot be determined at the pleadings stage. As the plaintiff explains, his complaint contains allegations suggesting that “the line of 1-526 petitioners as a whole is moving unreasonably slowly.” Pl.’s Opp’n at 16; see, e.g., Compl. ¶¶ 29, 31-33, 3639, 41-42. And if such a contention were proven true, then a court could “potentially provide relief by compelling USCIS to increase its processing rate, thus producing net gain for 1-526 petitioners as a group.” Liu, 2021 WL 2115209, at *5. Because the Court cannot determine the form of relief, if any, that might prove appropriate at the conclusion of the action, and because the Court lacks a factual record to evaluate USCIS’s line-skipping concerns, the fourth TRAC factor is neutral at this stage.
Lyons v. United States Citizenship & Immigration Servs., 21-CV-3661 (JGK), at *19-21 (S.D.N.Y. Jan. 10, 2023).