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Hsiao v. Acosta

United States District Court, D. Hawaii

June 28, 2019

YA-WEN HSIAO, Plaintiff,
v.
ALEXANDER ACOSTA, Secretary of Labor, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          JILL A. OTAKE UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         Plaintiff Ya-Wen Hsiao brought this action for declaratory and injunctive relief, alleging that the Department of Labor erred in denying her employer's Application for Permanent Employment Certification. Before the Court is Defendant Secretary of Labor Alexander Acosta's Motion to Dismiss for Lack of Jurisdiction. The Motion to Dismiss is GRANTED WITHOUT PREJUDICE because Plaintiff lacks constitutional standing.

         A. Facts

         Plaintiff is an “alien” who lives in Honolulu, Hawai‘i. Compl. at 2, ¶ 1. On January 13, 2011, Plaintiff's employer, the University of Hawai‘i John A. Burns School of Medicine (“Employer”), filed an Application for Permanent Employment Certification (“labor certification”) on Plaintiff's behalf with the Department of Labor (“DOL”), for an Educational Technology Specialist position. Id. ¶ 2. On March 23, 2012, the Certifying Officer (“CO”) denied the application on the grounds that Employer (1) provided inadequate documentation and (2) presented evidence showing the conditions of employment were less favorable to American workers than those offered to Plaintiff. Id. ¶ 9. Employer requested reconsideration, which was denied on April 30, 2012. Id. ¶¶ 10, 13. The CO forwarded the case and appeal file to the Board of Alien Labor Certification Appeals (“BALCA”), and Employer's counsel submitted legal briefing to BALCA and the DOL's Counsel for Litigation, Harry Sheinfeld. Id. ¶ 18. On November 16, 2016, a three-judge panel affirmed the denial. Id. ¶¶ 16, 22. Employer requested en banc review, which BALCA denied on March 29, 2017. Id. ¶¶ 24, 27.

         Plaintiff then filed a Freedom of Information Act (“FOIA”) request on May 1, 2017, seeking information related to the en banc process, to which Administrative Law Judge (“ALJ”) Paul Almanza responded two months later. Id. ¶¶ 30-31. Judge Almanza summarized the en banc procedure, explaining that (1) the Order Denying En Banc Review in Plaintiff's case did not list the judges who reviewed the petition and (2) procedures for en banc voting are not published. Id. ¶ 31. A month after Judge Almanza's response, Employer filed a Pro Se Motion for Relief from Judgment and Order. Id. ¶¶ 32-44. The Chief ALJ denied Employer's request to reopen the case and barred Employer from raising issues further. Id. ¶¶ 50-51. Plaintiff initiated another FOIA request two days later and received the responsive documents on October 8, 2018. Id. ¶ 52.

         B. Procedural History

         On December 26, 2018, Plaintiff filed a Complaint for Review of Administrative Decision, which is the subject of this Motion. ECF No. 1. The Complaint asserts the following claims: (1) the CO's denial and the BALCA's affirmation of the denial were abuses of discretion, (2) the BALCA's en banc denial was in bad faith, (3) Plaintiff's Fifth Amendment rights were violated, (4) the Chief ALJ and chair of the BALCA engaged in abusive behavior, (5) the DOL's multiple injustices caused Plaintiff and her Employer irreparable harm, (6) the denial was not supported by the regulations, and (7) the DOL violated FOIA regulations. Id. Plaintiff prays for: (1) review of the DOL's denial; (2) an order directing the DOL to approve the labor certification; (3) a declaration stating: (i) the BALCA's en banc procedures violated the Administrative Procedure Act, (ii) the BALCA falsified facts, (iii) the BALCA violated Plaintiff's due process rights, and (iv) the DOL's employment of Harry Sheinfeld prejudiced Plaintiff; (4) any other relief deemed proper. Id. at 37.

         On March 4, 2019, Defendant filed the instant Motion to Dismiss for Lack of Jurisdiction. ECF No. 13. Plaintiffs filed an opposition and request for censure and order to show cause, ECF No. 23, and Defendants responded with a reply, ECF No. 27.

         II. LEGAL ANALYSIS

         A. Legal Standard under Rule 12(b)(1)

         Defendant brings the Motion pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(1). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may attack either the allegations of the complaint or the existence of subject matter jurisdiction in fact. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979) (internal citations omitted). When the motion to dismiss finds fault with the allegations of the complaint, the court accepts all factual allegations as true and construes them in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.1996). If the motion attacks a jurisdictional issue separable from the merits of the case, the judge may consider the evidence presented with respect to jurisdiction and rule on that issue, resolving factual disputes and considering matters outside the complaint when necessary. Thornhill, 594 F.2d at 733. Dismissal without prejudice is proper when plaintiff may establish standing by amendment. Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011).

         B. Statutory Framework

         The relevant process for noncitizens to obtain employment in the United States is a three-step process outlined in the Immigration and Nationality Act (“INA”). First, the employer must submit an Application for Permanent Employment Certification, verifying:

(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii))[1] and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and
(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C.A. § 1182(5)(A).

         If the employer receives the labor certification, the employer must then submit the certification on behalf of the alien worker, who is known as the “beneficiary, ” with an I-140 (Immigrant Petition for Alien Worker) visa petition to the United States Citizenship and Immigration Services (“USCIS”). 8 C.F.R. § 204.5(1)(1); see 8 U.S.C. § 1153(b)(3)(C). In addition, the employer must submit documentation showing that the non-citizen worker meets all requirements outlined in the labor certification, 8 C.F.R. § 204.5(1)(3)(ii), and proving the employer has the ability to pay the wage specified in the certification, 8 C.F.R. § 204.5(g)(2).

         If the USCIS approves the I-140 petition, the non-citizen worker may then apply for lawful permanent residency by filing an I-485 Application to Register Permanent Residence or Adjust Status. 8 U.S.C. § 1255(a). The USCIS will not approve the I-485 application unless and until it approves the I-140 visa petition. 8 U.S.C. § 1255(a). The non-citizen may also file an I-765 ...


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