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Hsiao v. Pizzella

United States District Court, D. Hawaii

September 20, 2019

YA-WEN HSIAO, Plaintiff,
v.
PATRICK PIZZELLA, Secretary of Labor, Defendant.

          ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

          Jill A. Otake, United States District Judge

         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’s Motion to Dismiss and Plaintiff’s Motion for Preliminary Injunction. Defendant’s Motion to Dismiss is GRANTED WITH PREJUDICE because Plaintiff lacks constitutional standing. As this Court lacks jurisdiction, Plaintiff’s Motion for Preliminary Injunction is DISMISSED.

         I. BACKGROUND

         A. Facts

         Plaintiff is an “alien” who lives in Honolulu, Hawai‘i. ECF No. 35 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.[1] Id. ¶ 2. On March 23, 2012, the Certifying Officer (“CO”) denied the application on the grounds that Employer (1) provided inadequate proof that the job advertisement was posted on a website and (2) presented evidence showing the advertisement offered a lower wage to American workers than that 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. In the brief, Employer argued that the two reasons for the application’s denial contradicted one another, because the job vacancy had to have been posted on Employer’s website if it offered a lower wage to American workers than it did to Plaintiff. Id. ¶ 20. On November 16, 2016, a three-judge panel affirmed the denial of the application. 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 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. ECF No. 1. The Complaint asserted the following claims: (1) the CO’s denial of the labor certification and the BALCA’s affirmation of the denial were abuses of discretion, (2) the BALCA’s en banc denial was in bad faith, (3) the DOL violated Plaintiff’s Fifth Amendment rights, (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 Procedures Act (“APA”), (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; and (4) any other relief deemed proper. Id. at 37.

         On March 4, 2019, Defendant filed a motion to dismiss for lack of jurisdiction, ECF No. 13, which the Court granted on June 28, 2019, ECF No. 31. The Court found that Plaintiff failed to allege that she sustained an injury-in-fact fairly traceable to Defendant’s conduct and redressable by a favorable decision, as required to establish Constitutional standing. Finding that additional facts could exist that would cure these deficiencies, the Court granted Defendant’s motion to dismiss without prejudice. Plaintiff then filed her Amended Complaint (“FAC”) on July 19, 2019, ECF No. 35, along with a “Motion for Temporary Injunction, ” ECF No. 34. During a telephonic conference held on July 23, 2019, Plaintiff confirmed that she intended the Motion as a motion for preliminary injunction, not a motion for temporary restraining order. ECF No. 37. Defendant responded to the Motion for Temporary Injunction by filing a Motion to Dismiss for Lack of Jurisdiction and Opposition to Plaintiff’s Motion for Temporary Injunction. ECF No. 41. Plaintiff filed an Opposition to Defendant’s Motion and Reply to Defendant’s Opposition, ECF No. 44, and Defendant replied, ECF No. 45.

         On September 6, 2019, the Court held a hearing on Defendant’s Motion to Dismiss and Plaintiff’s Motion for Temporary Injunction. The Court requested supplemental briefing from Defendant addressing Ray Charles Found. v. Robinson, 795 F.3d 1109, 1119 (9th Cir. 2015), and asked both parties for briefing on the law regarding an employer’s ability to refile a labor certification and Plaintiff’s ability to pursue other avenues for a visa. Both parties filed the requested supplemental briefs. ECF Nos. 48, 49.

         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).[2] 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. Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011). “This is not to say that plaintiff may rely on [] bare legal conclusion[s].” Id. 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 a plaintiff may establish standing by amendment. Maya, 658 F.3d at 1069.

         B. Statutory Framework

         The relevant process for noncitizens to obtain employment in the United States is a three-step procedure 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))[3] 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 DOL approves 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 Application for Employment Authorization while the I–485 application is pending. 8 C.F.R. § 274a.12(c)(9).

         Plaintiff brings this case pursuant to the APA, which states that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.

         C. Discussion

         At the outset, the Court acknowledges its difficult role in this case. The Court may form its own opinions about how valuable Plaintiff’s presence in the United States is to her Employer and family. However, the Constitution limits the Court’s jurisdiction. This is not a case of an employer appealing the DOL’s denial of a labor certification. This case does not involve an injunction regarding an open application. It is not an appeal of a denial of an I–140 petition or an I–485 application, or a deportation order. Instead, Plaintiff asks the Court to do something it cannot do because it does not have the jurisdiction to do it.

         Federal district courts are courts of limited jurisdiction; “[t]hey possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Court has an independent duty to ensure it has subject matter jurisdiction over this case. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). The Court must first assess Plaintiff’s constitutional standing in order to establish its jurisdiction to hear the case and reach the merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998). As Plaintiff seeks judicial review of agency action under the APA, Plaintiff must also meet prudential standing requirements to proceed with her case. See Havasupai Tribe v. Provencio, 906 F.3d 1155, 1166 (9th Cir. 2018). Plaintiff bears the burden of establishing that she satisfies the standing requirements for each claim and each form of relief. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2017); Maya, 658 F.3d at 1068–69.

         In his Motion to Dismiss, Defendant argues: (1) Plaintiff lacks constitutional standing because she has not sufficiently pled an injury-in-fact that is fairly traceable to Defendant’s challenged conduct and redressable by a favorable decision; (2) Plaintiff also lacks constitutional standing because Plaintiff is not the applicant, but merely the beneficiary of the application; (3) Plaintiff lacks prudential standing because she is not within the “zone of interests” covered by the INA; and (4) Plaintiff’s Fifth Amendment due process claim should be dismissed for ...


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