United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION TO
A. OTAKE UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
Legal Standard under Rule 12(b)(1)
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).
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)) 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).
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).
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 ...