ORDER

JAMES L. ROBART, District Judge.

I. 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 certification (3d MCC (Dkt. # 82)) by Plaintiffs Wilman Gonzalez-Rosario, L.S., K.T., A.A., Karla Diaz Marin, Antonio Machic Yac, Faridy Salmon, Jaimin Shah, and W.H. (collectively, "Plaintiffs").1 The court has considered the motions, the briefing filed in support thereof and opposition thereto, the relevant portions of the record, and the applicable law. In addition, the court held oral argument on July 13, 2017. Considering itself fully advised, the court GRANTS Defendants' partial motion to dismiss and GRANTS in part and DENIES in part Plaintiffs' motion for class certification.

II. BACKGROUND

Through this injunctive class action, Plaintiffs seek to compel USCIS to abide by regulatory deadlines for adjudicating applications for employment authorization documents ("EADs") filed by noncitizens. (See generally Am. Compl. (Dkt. # 58).)

A. Regulatory Structure

For an alien to be eligible to work in the United States, the alien must file Form I-765 with DHS and obtain an EAD. (Am. Compl. ¶¶ 3-4; Instructions for Application for Employment Authorization ("I-765 Instructions"), U.S. Customs and Immigration Services (Nov. 4, 2015), available at https://www.uscis.gov/sites/default/files/files/form/ i-765instr.pdf (last accessed July 18, 2017).2 USCIS is responsible for adjudicating Form I-765. (Am. Compl. ¶ 4.) When Plaintiffs filed this lawsuit, federal regulations provided a 90-day timeline—with certain exceptions—for USCIS to adjudicate EAD applications.3 See 8 C.F.R. §§ 274a.13(d) (effective until Jan. 16, 2017). The regulations excepted individuals seeking an initial EAD based on an underlying asylum applicationfrom the 90-day timeline. See id. (excluding from the 90-day deadline "initial application[s] for employment authorization under 8 CFR 274a.12(c)(8)"); cf. id. §§ 274a.12(c)(8) (covering aliens who have "filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208"), 208.7(a)(1) (providing a timeline for adjudicating asylum-based EAD applications).

Throughout this case, the regulations have conferred discretion on USCIS to approve or deny EAD applications unless they are filed by an applicant for asylum. See 8 C.F.R. § 274a.13(a)(1); 8 C.F.R. § 274a.13(a)(1) (effective until Jan. 16, 2017); see also Guevara v. Holder, 649 F.3d 1086, 1091-92 (9th Cir. 2011) ("[T]he authorization for such employment is not mandated."); Kaddoura v. Gonzales, No. C06-1402RSL, 2007 WL 1521218, at *5 (W.D. Wash. May 21, 2007) ("While plaintiff is correct that as an `alien who has filed an application for adjustment of status' he is within the class of aliens `eligible' for an EAD, under the plain language 8 C.F.R. §§ 274a.12 and 274a.13, his eligibility for an EAD resides within the discretion of USCIS and there is no appeal from the denial of the application."). However, the prior version of the regulation used mandatory language when discussing the timeline for adjudicating such applications:

8 C.F.R. § 274a.13(d) (effective until Jan. 16, 2017). In sum, if USCIS had not adjudicated an EAD application within 90 days of receipt, the regulation required USCIS to issue one or more interim EADs for 240 days or until USCIS adjudicated the EAD application, whichever came first.

Effective January 17, 2017, DHS amended the regulations that imposed the 90-day deadline. The regulations no longer set a 90-day timeline for adjudicating EAD applications. See 8 C.F.R. § 274a.13(d); Retention of EB-1, EB-2, and EB-3 Immigrant Workers & Program Improvements Affecting High-Skilled Nonimmigrant Workers ("Retention of Immigrant Workers"), 81 Fed. Reg. 82,398, 82,455 (Nov. 18, 2016) (codified at 8 C.F.R. §§ 204-05, 214, 245, 274a). Instead, they provide for automatic extension of certain types of EADs upon the filing of an EAD renewal application. See 8 C.F.R. § 274a.13(d); Retention of Immigrant Workers, 81 Fed. Reg. at 82,455-57.

A different regulation governs asylum seekers applying for an initial EAD, who the court will refer to as initial asylum EAD applicants, and that regulation has not changed during the course of this litigation.4 See 8 C.F.R. §§ 208.7(a)(1), 274a.12(c)(8), 274a.13(d); see also Carballo v. Meissner, No. C00-2145, 2000 WL 1741948, at *2 (N.D. Cal. Nov. 17, 2000) (describing the process for an asylum applicant seeking an EAD). Section 274a.13(a)(2) mandates that USCIS adjudicate initial asylum EAD applications "in accordance with [Section] 208.7." 8 C.F.R. § 274a.13(a)(2). After filing an application for asylum, an individual typically must wait 150 days before filing an initial EAD application, but there are exceptions to this rule. Id. § 208.7(a)(1). For instance, if asylum is granted within 150 days, the asylee may apply for an EAD immediately thereafter. Id. Additionally, if asylum is denied at any point, the applicant becomes ineligible for an EAD. Id.

Assuming an individual's "asylum clock" runs for at least 150 days without delay caused by the applicant, she may apply for an EAD while her asylum application pends. Id. §§ 208.7(a)(1)-(2), (4). USCIS "shall have 30 days from the date of filing of the request [sic] employment authorization to grant or deny that application," except that in no event may USCIS grant the EAD prior to 180 days after the noncitizen files her asylum application. Id. § 208.7(a)(1); see also 8 U.S.C. § 1158(d)(2). Section 208.7 is silent about whether there is any consequence if USCIS fails to meet this 30-day adjudication deadline. See 8 C.F.R. § 208.7(a)(1); cf. id. § 274a.13(d) (effective until Jan. 16, 2017) (providing for interim EADs for other EAD applicants if USCIS has not decided their EAD applications within 90 days).

B. Factual Allegations

Based on this regulatory structure, Plaintiffs seek to certify a nationwide class consisting of two subclasses. (See generally 3d MCC.) Each Plaintiff seeks to serve as a class representative of one of the two putative subclasses. (See Am. Compl. ¶¶ 89-90; 3d MCC at 5.) Plaintiffs propose the following class definition:

(3d MCC at 2.)

Mr. Gonzalez Rosario, L.S., K.T., Ms. Diaz Marin, Ms. Salmon, and Mr. Shah (collectively, "90-Day Plaintiffs") seek to represent the 90-Day Subclass. (3d MCC at 5; see also Am. Compl. ¶ 89.) 90-Day Plaintiffs argued on behalf of the 90-Day Subclass that the previous version of 8 C.F.R. § 274a.13(d) obligated USCIS to either adjudicate their EAD application within 90 days or issue an interim EAD. (Am. Compl. ¶¶ 5-6; see also 10/5/16 Order (Dkt. # 80) at 7-9 (articulating in greater detail 90-Day Plaintiffs' factual allegations).) 90-Day Plaintiffs concede that the January 2017 amendments eliminate USCIS's duty going forward to adjudicate EAD applications within 90 days or issue interim EADs, but 90-Day Plaintiffs maintain that injunctive relief is warranted. (3d MTD Resp. (Dkt. # 91) at 1-2.) Specifically, 90-Day Plaintiffs ask the court to enjoin Defendants from ascribing negative immigration consequences based on the 90-Day Subclass's inability to legally work or decision to work unlawfully during USCIS's failure to timely adjudicate the 90-Day Subclass's EAD applications or issue interim EADs. (Id.)

A.A., Mr. Machic Yac, and W.H. (collectively, "30-Day Plaintiffs") seek to represent the 30-Day Subclass. (Am. Compl. ¶ 90.) All three individuals are initial asylum EAD applicants and contend that Defendants failed to comply with their regulatory obligation to adjudicate 30-Day Plaintiffs' EAD applications within 30 days. (Id. ¶¶ 21, 23, 28, 57, 62, 81.)

C. Procedural History

Ms. Arcos, Ms. Osorio, W.H., Northwest Immigrant Rights Project, and The Advocates for Human Rights filed this lawsuit as a putative class action on May 22, 2015. (Compl. (Dkt. # 1).) On February 10, 2016, the court concluded it lacked subject-matter jurisdiction over claims by Ms. Arcos, Ms. Osorio, Northwest Immigrant Rights Project, and The Advocates for Human Rights. (See 2/10/16 Order (Dkt. # 55).) However, the court granted leave to amend the complaint to remedy the deficiencies identified in the order. (Id. at 37-39.)

On March 10, 2016, the plaintiffs filed an amended complaint. (Am. Compl.) The amended complaint includes the five original plaintiffs and adds eight additional plaintiffs. (Id.) The day after filing their amended complaint, Plaintiffs moved for class certification. (2d MCC (Dkt. # 59).) Several weeks later, Defendants moved to dismiss the amended complaint. (2d MTD (Dkt. # 69).) The court granted in part the motion to dismiss and dismissed the claims of Ms. Arcos, Ms. Osorio, Northwest Immigrant Rights Project, and The Advocates for Human Rights. (10/5/16 Order at 17-18, 22-36); see also supra n.1. The court denied class certification with leave to renew the motion in a manner that cured commonality deficiencies that the court identified. (Id. at 41-55.) The currently pending motions followed the court's order.

III. ANALYSIS

A. Partial Motion to Dismiss

Defendants contend the amended EAD regulations that went into effect on January 17, 2017, moot 90-Day Plaintiffs' claims and the 90-Day Subclass's claims. (See generally 3d MTD.) Accordingly, Defendants argue that the court should dismiss those claims for lack of subject-matter jurisdiction.

1. Legal Standard

"If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). Because subject-matter jurisdiction is not waivable, parties may present a motion to dismiss for lack of subject-matter jurisdiction at any point in the litigation. Cf. Fed. R. Civ. P. 12(h)(1). A motion to dismiss for lack of subject-matter jurisdiction is either facial or factual. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. The court accepts the factual allegations in the complaint as true, and the nonmoving party is entitled to have those facts construed in the light most favorable to it. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). However, if the moving party "convert[s] the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject[-]matter jurisdiction." Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)). In either instance, the party asserting its claims in federal court bears the burden of establishing subject-matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

Here, Defendants challenge the court's subject-matter jurisdiction by arguing that 90-Day Plaintiffs' claims are moot. (See generally 3d MTD.) Mootness is "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness)." U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980). "To establish Article III standing, an injury must be `concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.'" Clapper v. Amnesty Int'l USA, ___ U.S. ___, 133 S.Ct. 1138, 1147 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). Even if the plaintiff had standing when the complaint was filed, a case becomes moot if at any point it "does not satisfy the case-or-controversy requirement of Article III, § 2 of the Constitution." Caswell v. Calderon, 363 F.3d 832, 836 (9th Cir. 2004).

2. 90-Day Plaintiffs' Claims

"The type of claim asserted in the complaint dictates the nature of the relief that may be afforded to the plaintiff." Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1277 n.6 (9th Cir. 2006). 90-Day Plaintiffs assert two claims on behalf of themselves and the 90-Day Subclass—one under the Mandamus Act, 28 U.S.C. § 1361, and one under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. (Am. Compl. ¶¶ 104-10, 125-28.) The Mandamus Act vests original jurisdiction in the district courts over "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. APA Section 706(1) operates similarly in this realm, permitting courts to "compel agency action unlawfully withheld or unreasonably delayed." Id. § 706(1). The APA also provides for judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. The court may "hold unlawful and set aside" such agency action where it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706(2)(A).

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 Plaintiffs now seek. APA Section 706(1) empowers the court to "compel agency action unlawfully withheld or unreasonably delayed." Id. § 706(1). However, such a claim "can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). "Absent such an assertion, a Section 706(1) claim may be dismissed for lack of jurisdiction." Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1019-20 (9th Cir. 2007); see also Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2006) (upholding the district court's dismissal of an APA claim for lack of jurisdiction because the plaintiffs failed to demonstrate the government's obligation to "take discrete nondiscretionary actions"). Furthermore, "when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency's discretion, a court can compel the agency to act, but has no power to specify what the action must be." Norton, 542 U.S. at 65 (clarifying that "law" can include "agency regulations that have the force of law").

The Mandamus Act operates similarly in this context, empowering district courts "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361; see also Garcia v. Johnson, No. 14-cv-1775-YGR, 2014 WL 6657591, at *5 (N.D. Cal. Nov. 21, 2014) ("The jurisdictional dimensions of the APA and the Mandamus Act are considered to be coextensive for purposes of compelling agency action that has been unreasonably delayed."). "Although the exact interplay between these two statutory schemes has not been thoroughly examined by the courts, the Supreme Court has construed a claim seeking mandamus under the [Mandamus Act], `in essence,' as one for relief under [Section] 706 of the APA." Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (citing Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 n.4 (1986)); see also Garcia, 2014 WL 6657591, at *5 ("Where, as here, the relief sought is identical under the APA and the mandamus statute, proceeding under one as opposed to the other is not significant.").

90-Day Plaintiffs indicate that in light of the amendments to 8 C.F.R. § 274a.13(d), they "no longer seek class-wide relief" in the form of compelling Defendants to either adjudicate EADs within 90 days or grant an interim EAD. (3d MTD Resp. at 1.) Rather, 90-Day Plaintiffs now contend that they and the 90-Day Subclass suffered harm by either (1) being unlawfully deprived of the opportunity to work, or (2) engaging in unauthorized employment, which may count against applicants in any subsequent application for immigration benefits. (Id. at 1-7.) 90-Day Plaintiffs therefore now seek relief in the form of "an order enjoining Defendants from denying 90-Day Subclass members' future applications for immigration benefits based on unauthorized employment during any periods when adjudication of their EAD applications was delayed beyond 90 days." (Id. at 12-13.) In other words, 90-Day Plaintiffs no longer seek to compel Defendants to take a discrete agency action that they are required to take.5 See Norton, 542 U.S. at 64; cf. Viet. Veterans of Am. v. Cent. Intelligence Agency, 811 F.3d 1068, 1075-82 (9th Cir. 2015) (affirming remedial injunctive relief under APA Section 706(1) where the applicable regulation "unequivocally command[ed]" the defendants to provide that relief in the first instance, but the defendants failed to do so). Instead, they now seek injunctive relief to remedy potential collateral harm from Defendants' alleged violations of the previous iteration of 8 C.F.R. § 274a.13(d). Accordingly, the court concludes that 90-Day Plaintiffs' claims under the Mandamus Act and APA Section 706(1) are moot and dismisses those claims.

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

90-Day Plaintiffs pivot and argue that their complaint supports a claim under other sections of the APA. Specifically, APA Section 704 authorizes courts to review "final agency action for which there is no other adequate remedy in a court," 5 U.S.C. § 704, and APA Section 706(2) empowers courts to "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," id. § 706(2)(A).

"A final agency action `for which there is no other adequate remedy in a court' is subject to judicial review under" APA Sections 704 and 706(2). WildEarth Guardians v. Mont. Snowmobile Ass'n, 790 F.3d 920, 924 (9th Cir. 2015). Typically, two conditions must be met for agency action to be considered final: (1) "the action must mark the `consummation' of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature"; and (2) "the action must be one by which `rights or obligations have been determined,' or from which `legal consequences will flow.'" Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted) (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948); Port of Bos. Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). The Ninth Circuit has explained that this exhaustion requirement avoids undertaking judicial review "where pending administrative proceedings or further agency action might render the case moot and judicial review completely unnecessary." Sierra Club v. U.S. Nuclear Regulatory Comm'n, 825 F.2d 1356, 1362 (9th Cir. 1987). Courts lack subject-matter jurisdiction to review claims under APA Sections 704 and 706(2) unless the responsible agency has taken final action. See City of San Diego v. Whitman, 242 F.3d 1097, 1102 (9th Cir. 2001).

90-Day Plaintiffs make passing reference to the arbitrary and capricious standard in their amended complaint (Am. Compl. ¶ 125), and they allege in conclusory fashion that they have suffered "final agency action within the meaning of 5 U.S.C. § 704" (id. ¶ 126). However, they have litigated the entirety of this case in pursuit of their claim under APA Section 706(1) and the related Mandamus Act claim. (See, e.g., 1st MCC (Dkt. # 5) at 1; MSJ (Dkt. # 24) at 23-24; 1st MTD Resp. (Dkt. # 40) at 7-12; 2d MCC (Dkt. # 59) at 1; 2d MTD Resp. (Dkt. # 73) at 4-6; 3d MCC at 6-11.) Even assuming the amended complaint sufficiently informs Defendants of claims under other sections of the APA and the relief 90-Day Plaintiffs now pursue, Defendants' delay in adjudicating 90-Day Plaintiffs' EAD applications does not constitute final agency action.6 See Sze v. I.N.S., No. C-97-0569 S.C. 1997 WL 446236, at *5 n.2 (N.D. Cal. July 24, 1997) (rejecting an analogous argument as "frivolous"). Indeed, the absence of a timely final decision by Defendants caused Plaintiffs to seek to compel adjudication pursuant to APA Section 706(1) and the Mandamus Act.7 In contrast, the harm 90-Day Plaintiffs now assert that they fear—adverse immigration consequences from unauthorized employment (3d MTD Resp. at 10, 12-13)—can be addressed, in the event it arises, through an APA challenge to that final agency action, see Bennett, 520 U.S. at 177-78.

The absence of a final decision by Defendants lays bare 90-Day Plaintiffs' attempt to shoehorn their Mandamus Act and APA Section 706(1) claims into APA Sections 702, 704 or 706(2)(A) to avoid mootness problems. See Sze, 1997 WL 446236, at *5 n.2. Because 90-Day Plaintiffs allege facts that demonstrate the lack of a final agency action by Defendants, the court concludes that it lacks subject-matter jurisdiction over their claims under other sections of the APA. See Whitman, 242 F.3d at 1102. The court accordingly dismisses those claims without prejudice and without leave to amend. Having dismissed 90-Day Plaintiffs' claims, the court DENIES as moot 90-Day Plaintiffs' motion for class certification8 and turns to 30-Day Plaintiffs' motion for class certification.

B. 30-Day Plaintiffs' Motion for Class Certification

After excising the portion of Plaintiffs' proposed class definition that applies to the 90-Day Subclass, 30-Day Plaintiffs' proposed class definition reads:

(3d MCC at 2; 3d MCC Reply at 2.)

1. Legal Standard

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

Rule 23 "does not set forth a mere pleading standard." Id. at 350. Rather, "certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Id. at 350-51 (internal quotation omitted). "[I]t may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). This is because "the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Id. (internal quotation omitted). Nonetheless, the ultimate decision regarding class certification "involve[s] a significant element of discretion." Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1090 (9th Cir. 2010).

2. Numerosity

"The prerequisite of numerosity is discharged if `the class is so large that joinder of all members is impracticable.'" Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (quoting Fed. R. Civ. P. 23(a)(1)). In its previous order on class certification, the court concluded that the 30-Day Subclass was sufficiently numerous to satisfy Rule 23(a)(1). (10/5/16 Order at 40-41.) Although 30-Day Plaintiffs have since altered the proposed class definition, the size of the putative class has not changed and Defendants do not challenge numerosity. (See id.; see generally 3d MCC Resp. (Dkt. # 86).) Accordingly, the court's previous analysis applies (see 10/5/16 Order at 40-41), and the court concludes that 30-Day Plaintiffs satisfy the numerosity requirement.

3. Commonality

The requirement of "commonality" is met through the existence of a "common contention" that is of "such a nature that it is capable of classwide resolution." Dukes, 564 U.S. at 350. A contention is capable of classwide resolution if "the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. Accordingly, "what matters to class certification . . . is not the raising of common questions—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Id. This requirement is "construed permissively." Hanlon, 150 F.3d at 1019. Accordingly, "[a]ll questions of fact and law need not be common to satisfy the rule." Id.; see also Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010).

In its previous order, the court denied class certification largely because 30-Day Plaintiffs failed to demonstrate commonality. (10/5/16 Order at 41-48.) The court noted that "answers to one legal question and one factual question will `drive the resolution of the litigation.'" (Id. at 42 (quoting Dukes, 564 U.S. at 350).) The court determined that the legal question—"whether USCIS is legally obligated to adjudicate EAD applications within a certain timeframe"—was "a `common contention' that is `capable of classwide resolution.'" (Id. (quoting Dukes, 564 U.S. at 350).) However, the court concluded that fact-specific tolling inquiries precluded a finding of commonality. (See id. at 42-45.) In response, 30-Day Plaintiffs altered their proposed class definition and now contend that the proposed class definition eliminates the commonality flaw: "If tolling occurred, the regulatory adjudication deadline would not have expired, and the applicant would not be a class member, at least until the problem that gave rise to tolling is remedied and the day-count restarts and reaches . . . 30 . . . ." (3d MCC at 8; see also 3d MCC at 2 ("To address the court's concerns about commonality, Plaintiffs propose a simplified class definition that limits the class members to individuals whose claims have accrued.").)

The court agrees that by excluding from the class definition any applicants whose deadline has not passed due to tolling, 30-Day Plaintiffs have remedied the commonality issue that the court identified in its prior order. (Cf. 10/5/16 Order at 44-45 & n.20 (rejecting the same argument based on the court's reading of the previous proposed class definition).) Unlike the previous class definition, 30-Day Plaintiffs' current proposal limits the class to "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.) This excludes from the class any applicants whose 30 days has not accrued and will not accrue under the applicable regulations due to tolling or other regulatory provisions.

Defendants argue that the individualized six-factor reasonableness analysis from Telecommunications Research & Action Center v. F.C.C. ("TRAC"), 750 F.2d 70, 80 (D.C. Cir. 1984), precludes the conclusion that common questions will generate common answers apt to drive the resolution of the litigation.9 (See 3d MCC Resp. at 10-13.) In most circumstances, the TRAC standard governs unreasonable delay claims under APA Section 706(1). See Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir. 2001). However, the Ninth Circuit has rejected the TRAC standard where "Congress has specifically provided a deadline for performance." Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 n.11 (9th Cir. 2002); see also Ctr. for Food Safety v. Hamburg, 954 F.Supp.2d 965, 970-71 (N.D. Cal. 2013) (quoting Badgley, 309 F.3d at 1177 n.11) ("[W]here Congress has specifically provided a deadline for performance by an agency, `no balancing of factors is required or permitted.'").

Here, agency regulations rather than a congressional statute provided a deadline for performance, but the court has already concluded that those regulatory deadlines are mandatory.10 (2/10/16 Order at 21-26.) The court discerns no reason to differentiate those mandatory regulatory deadlines from the mandatory statutory deadlines in Badgley, Hamburg, and similar cases from district courts in the Ninth Circuit. See, e.g., Garcia, 2014 WL 6657591, at *12 (observing that Ninth Circuit authority suggests that the court "need not undertake TRAC's six-factor balancing inquiry" where a regulation imposes a firm deadline). Accordingly, the court rejects Defendants' argument that the individualized TRAC inquiry undermines commonality. Having concluded that 30-Day Plaintiffs remedied the previously identified commonality flaws and rejected Defendants' argument regarding the TRAC factors, the court concludes that Plaintiffs meet Rule 23's commonality requirement.

4. Typicality

"[R]epresentative claims are `typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at 1020. "Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought." Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Nonetheless, the "commonality and typicality requirements of Rule 23(a) tend to merge." Falcon, 457 U.S. at 157 n.13. "Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Id. In determining typicality, courts consider "whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct." Hanon, 976 F.2d at 508.

The court has already concluded that 30-Day Plaintiffs' previous proposed class definition satisfies the typicality requirement, and the court's analysis of the previous class definition applies with equal force to the current class definition. (Compare 10/5/16 Order at 48-50, with 3d MCC at 2.) Defendants' only new argument pertaining to typicality is based on the TRAC standard. (See 3d MCC Resp. at 13-14.) The court concluded that the TRAC standard does not apply to the 30-day deadline in 8 C.F.R. § 208.7(a)(1), see supra § III.B.3., and the individual analysis required under that standard therefore presents no obstacle to class certification. Accordingly, the court concludes that the proposed 30-Day Subclass satisfies Rule 23's typicality requirement.

5. Adequacy

"The final hurdle interposed by Rule 23(a) is that `the representative parties will fairly and adequately protect the interests of the class.'" Hanlon, 150 F.3d at 1020 (quoting Fed. R. Civ. P. 23(a)(4)); see also Fed. R. Civ. P. 23(g). "Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Id. (citing Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)).

As Defendants acknowledge (3d MCC Resp. at 15 n.4), the court has already concluded that the putative class representatives and putative class counsel are adequate (10/5/16 Order at 50-53). The putative class representatives and putative class counsel for the 30-Day Subclass have not changed since the court made that conclusion. (See generally Am. Compl.) Nonetheless, "Defendants request that the Court reconsider their arguments and also preserve the issue for appeal." (3d MCC Resp. at 15 n.4.) Defendants' deadline to move for reconsideration of the court's October 5, 2016, order passed more than eight months ago. See Local Rules W.D. Wash. LCR 7(h)(2). They raise no new arguments, and most of their arguments pertain specifically to the now-moot 90-Day Subclass. (3d MCC Resp. at 15-16.) The court therefore appoints 30-Day Plaintiffs as class representatives.

However, the court's rulings significantly narrow this case, and 30-Day Plaintiffs have not shown that the appointment of 10 lawyers as class counsel is warranted. Federal Rule of Civil Procedure 23(g) governs the appointment of class counsel, and the Committee Note regarding that subsection provides, in part:

Fed. R. Civ. P. 23(g) advisory committee's note to 2003 amendment. Rule 23(g) also permits the court to "include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h)." Fed. R. Civ. P. 23(g)(1)(D). The court's experience with this case and similar past actions suggests that 10 lawyers would constitute overstaffing and an ungainly counsel structure. See Fed. R. Civ. P. 23(g) advisory committee's note to 2003 amendment. Accordingly, the court directs the parties to review Rule 23(g), meet and confer regarding the appointment of class counsel, and file a motion—or motions, see Fed. R. Civ. P. 23(g)(2)—to appoint class counsel that contemplate the narrowing of the case and the considerations articulated above. If the parties agree regarding class counsel, they may file a stipulated motion; if the parties cannot agree, the motion or motions must be noted for the second Friday and briefed accordingly. See Local Rules W.D. Wash. LCR 7(d)(2). Any motion to appoint class counsel must be filed no later than July 27, 2017.

6. Common Grounds

Class certification under Rule 23(b)(2) is only appropriate where the plaintiffs allege that the defendant has "acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). The court has already concluded that 30-Day Plaintiffs' claims satisfy this standard (10/5/16 Order at 53-54), and Defendants do not challenge that conclusion here (see generally 3d MCC Resp.). Accordingly, the court concludes that the 30-Day Subclass satisfies Rule 23(b)(2).

7. Failsafe Class

Separately, Defendants argue that the proposed class is failsafe. (3d MCC Resp. at 16-17.) "[A] failsafe class definition requires the court to reach a legal conclusion on the validity of a person's claim in order to determine whether the person is in the class, meaning the class is unascertainable prior to a liability determination." Waterbury v. A1 Solar Power Inc., No. 15cv2374-MMA (WVG), 2016 WL 3166910, at *4 (S.D. Cal. June 7, 2016) (internal quotations omitted); see also In re AutoZone, Inc. Wage & Hour Emp't Practices Litig., 289 F.R.D. 526, 545-46 (N.D. Cal. 2012); Kamar v. RadioShack Corp., 375 F. App'x 734, 736 (9th Cir. 2010). "Importantly, however, it is not clear that the Ninth Circuit forbids fail-safe classes." In re AutoZone, 289 F.R.D. at 546.

Even assuming failsafe classes are improper, the proposed class is not failsafe. As defined, the proposed class includes any noncitizen (1) who has filed or will file an initial application for employment authorization under 8 C.F.R. § 208.7; (2) whose application was not or will not be adjudicated within 30 days, as calculated pursuant to the applicable regulations, 8 C.F.R. §§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4); and (3) who has not or will not be granted interim employment authorization. (See 3d MCC at 2.) This class definition is based on factual characteristics of the putative class members, and it is not contingent on whether Section 208.7(a)(1)'s 30-day deadline is mandatory or directory. In other words, if Defendants prevailed on their argument that the 30-day deadline is directory, Defendants could obtain a binding judgment against the 30-Day Subclass. The class becomes failsafe, as Defendants define that term, only because earlier proceedings pertaining to subject-matter jurisdiction required the court to determine whether the 30-day deadline imposed by 8 C.F.R. § 208.7(a)(1) is mandatory. (See 2/10/16 Order at 21-26.) This procedural happenstance does not render the class failsafe, as properly defined, because the class definition does not require such a conclusion in order to determine membership.11 See Waterbury, 2016 WL 3166910, at *4. Accordingly, the court rejects Defendants' argument.

8. Certification

The court finds that all of the prerequisites of Rules 23(a) and 23(b)(2) are met. Accordingly, the court grants 30-Day Plaintiffs' motion and certifies the following class:

Further, the court appoints A.A., Mr. Machic Yac, and W.H. as class representatives. Finally, the court directs the parties to review Rule 23(g), meet and confer, and brief the appointment of class counsel in the manner described above. See Fed. R. Civ. P. 23(g); supra § III.B.5.

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 those claims as moot, and GRANTS in part and DENIES in part 30-Day Plaintiffs' 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. See supra n.1.