Post on 19-Aug-2018
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BENJAMIN C. MIZER Principal Deputy Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
GLENN M. GIRDHARRY Assistant Director
HEATHER SOKOLOWER Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 532-4329 Fax: (202) 305-7000
Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE TERRITORY OF GUAM
Guam Contractors Association, et al.,
Plaintiffs-Petitioners,
vs.
Loretta E. Lynch, Attorney General of the United States, et al.,
Defendants-Respondents.
CIVIL CASE NO. 16-00075
MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT UNDER FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) AND 12(b)(6)
Case 1:16-cv-00075 Document 31 Filed 01/07/17 Page 1 of 40
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TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1
STATUTORY AND REGULATORY BACKGROUND .............................................................. 2
STANDARDS OF REVIEW .......................................................................................................... 6
I. Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ..................................................... 6
II. Review of Agency Action Under The APA ..................................................................... 8
ARGUMENT .................................................................................................................................. 9
I. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Claims ................................ 9
Plaintiffs May Only Challenge Discrete, Identifiable USCIS Decisions ..................... 9
Plaintiffs’ Claims Fail to Challenge Discrete Agency Action .................................... 10
II. The Court May Also Dismiss Plaintiffs’ Claims In Their Entirety Under Federal Rule
Of Civil Procedure 12(B)(6) ..................................................................................................... 14
Plaintiffs’ Claims Fail To Comply With Rule 8’s Pleading Standards ...................... 14
Plaintiffs Fail to State a Cognizable Claim For Relief Under The APA .................... 17
Plaintiffs Fail To State A Claim for Equitable Estoppel ............................................ 32
Attorney General Loretta Lynch Is Not Properly Named As a Defendant ................ 32
CONCLUSION ............................................................................................................................. 33
Case 1:16-cv-00075 Document 31 Filed 01/07/17 Page 2 of 40
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TABLE OF AUTHORITIES
Cases
Alabama-Coushatta Tribe of Texas v. United States, 757 F.3d 484 (5th Cir. 2014) .................................................................................................... 11
Alaska Professional Hunters Ass'n, Inc. v. F.A.A., 177 F.3d 1030 (D.C. Cir. 1999) .......................................................................................... 28, 29
Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84 (D.D.C. 2000) ............................................................................................ 14
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................................ 7, 21, 30
Ass’n of Am. Med. Coll. v. United States, 217 F.3d 770 (9th Cir. 2000) ...................................................................................................... 7
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) ...................................................................................................... 7
Bautista v. Los Angeles Cty., 216 F.3d 837 (9th Cir. 2000) .................................................................................................... 15
Bennett v. Spear, 520 U.S. 154 (1997) .................................................................................................................. 31
Bhasin v. United States Dep't of Homeland Sec., 413 Fed. Appx. 983 (9th Cir. 2011) .......................................................................................... 31
Boi Na Braza Atlanta, LLC v. Upchurch, No. 04–CV–2007–L, 2005 WL 2372846 (N.D. Tex. Sept. 27, 2005) ...................................... 22
Bonneville Power, 477 F.3d 668 (9th Cir. 2007) ...................................................................................................... 8
Bowman Transp., Inc. v. Arkansas–Best Freight System, Inc., 419 U.S. 281 (1974) ................................................................................................................ 8, 9
Church v. United States, Case No. 12-CV-3990, 2013 WL 12064271 (C.D. Cal. May 15, 2013) .................................. 31
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .................................................................................................................. 16
Colo. Farm Bureau Fed’n v. U.S. Forest Serv., 220 F.3d 1171 (10th Cir. 2000) .......................................................................................... 12, 15
Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005) .................................................................................................. 15
Devon Energy Corp. v. Kempthorne, 551 F.3d 1030 (D.C. Cir. 2008) ................................................................................................ 28
Case 1:16-cv-00075 Document 31 Filed 01/07/17 Page 3 of 40
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Dridi v. Chertoff, 412 F. Supp. 2d 465 (E.D. Pa. 2005) ........................................................................................ 31
Encino Motorcars v. Navarro, 136 S.Ct. 2117........................................................................................................................... 29
Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868 (11th Cir. 2009) .................................................................................................. 12
Fogo De Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127 (D.C. Cir. 2014) .......................................................................................... 20, 28
Friends of Animals v. Ashe, 174 F. Supp. 3d 20 (D.D.C. 2016) ............................................................................................ 13
Fund for Animals v. BLM, 357 F. Supp. 2d 225, (D.D.C. 2004) ......................................................................................... 14
Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923 (9th Cir. 2010) .................................................................................................... 18
Hong Wang v. Chertoff, 550 F. Supp. 2d 1253 (W.D. Wash. 2008) ................................................................................ 33
IKEA US, Inc. v. Department of Justice, 48 F.Supp.2d 22 (D.D.C.1999) ................................................................................................. 27
Jaa v. I.N.S., 779 F.2d 569 (9th Cir. 1986) .................................................................................................... 32
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994) .................................................................................................................... 7
La Reunion Francaise SA v. Barnes, 247 F.3d 1022 (9th Cir. 2001) .................................................................................................... 7
Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) .................................................................................................... 7
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ........................................................................................................... passim
Matter of Artee Corp., 18 I. & N. Dec. 366 (1982) ......................................................................................................... 5
Matter of Contopoulous, 10 I. & N. Dec 654 (1964) .......................................................................................................... 5
Matter of Golden Dragon Chinese Restaurant, 19 I. & N. Dec. 238 (Comm’r 1984) ...................................................................................... 25, 26
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) .................................................................................................. 14
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Moss v. United States Secret Serv., 572 F.3d 962 (9th Cir. 2009) ...................................................................................................... 8
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ...................................................................................................................... 8
Mott Thoroughbred Stables, Inc. v. Rodriguez, 87 F. Supp. 3d 237 (D.D.C. 2015) ............................................................................................ 22
Nat’l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) .................................................................................................................... 8
Ness Inv. Corp. v. U.S. Dep’t of Agr., Forest Serv., 512 F.2d 706 (9th Cir. 1975) .................................................................................................... 20
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 61–62 (2004) .............................................................................................. 9, 10, 18
Occidental Eng’g Co. v. I.N.S., 753 F.2d 766 (9th Cir. 1985) .................................................................................................... 20
Office of Pers. Management v. Richmond, 496 U.S. 414, 110 S. Ct. 2465, 110 L. Ed. 2d 387 (1990) ........................................................ 32
Osage Producers Ass’n v. Jewell, --- F. Supp. 3d ---, 2016 WL 3093938 (N.D. Okla. June 1, 2016) ........................................... 11
Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997) .................................................................................................. 29
Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199 (2015) ............................................................................................................... 29
RCM Tech., Inc. v. U.S. Dep’t of Homeland Sec., 614 F. Supp. 2d 39 (D.D.C. 2009) ............................................................................................ 10
Royal Siam Corp. v. Chertoff, 484 F.3d 139 (1st Cir. 2007) ............................................................................................... 21, 32
Seven Star. Inc. v. United States, 873 F.2d 225 (9th Cir. 1989) .................................................................................................... 22
Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) .............................................................................................. 12, 13
Sussex Eng’g, Ltd. v. Montgomery, 825 F.2d 1084 (6th Cir. 1987) .............................................................................................. 5, 22
Telesaurus VPC, LLC v. Power, 623 F.3d 998 (9th Cir. 2010) ...................................................................................................... 7
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984) .................................................................................................... 8
Case 1:16-cv-00075 Document 31 Filed 01/07/17 Page 5 of 40
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True Capital Mgmt., LLC v. U.S. Dep’t of Homeland Sec., No. 13-261 JSC, 2013 WL 3157904 (N.D. Cal. June 20, 2013) .............................................. 31
United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972) .................................................................................................................. 30
Wild Fish Conservancy v. Jewell, 730 F.3d 791 (9th Cir. 2013) .................................................................................................... 15
Statutes
5 U.S.C. § 551(13) ........................................................................................................................ 10
5 U.S.C. § 551(4) .......................................................................................................................... 27
5 U.S.C. § 551(5) .......................................................................................................................... 27
5 U.S.C. § 551(6) .......................................................................................................................... 27
5 U.S.C. § 551(7) .......................................................................................................................... 27
5 U.S.C. § 701 ................................................................................................................................. 1
5 U.S.C. § 706 ............................................................................................................................... 16
5 U.S.C. § 706(1) .................................................................................................................... 17, 18
5 U.S.C. § 706(2)(A)........................................................................................................... 8, 17, 19
5 U.S.C. § 706(2)(D)..................................................................................................................... 26
5 U.S.C. § 706(2)(E) ..................................................................................................................... 29
5 U.S.C. §553 .......................................................................................................................... 26, 27
5 U.S.C. §§ 702 ................................................................................................................... 9, 14, 31
6 U.S.C. §§ 202 ............................................................................................................................... 3
8 U.S.C. § 1101 ............................................................................................................................... 2
8 U.S.C. § 1101(a)(15) .................................................................................................................... 2
8 U.S.C. § 1184(c) ...................................................................................................................... 3, 9
8 U.S.C. § 1201(a)(1) ...................................................................................................................... 4
8 U.S.C. § 1202 ............................................................................................................................... 4
8 U.S.C. § 1361 ............................................................................................................................... 4
Pub. L. No. 107-269 .................................................................................................................. 3, 32
Case 1:16-cv-00075 Document 31 Filed 01/07/17 Page 6 of 40
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Rules
Fed. R. Civ. P. 12(b)(1).......................................................................................................... passim
Fed. R. Civ. P. 12(b)(6)................................................................................................... 2, 7, 14, 24
Fed. R. Civ. P. 8 ............................................................................................................................ 16
Fed. R. Civ. P. 8(a)(2) ................................................................................................................... 21
Regulations
8 C.F.R. § 103.3(c).................................................................................................................. 21, 28
8 C.F.R. § 214.2 .......................................................................................................... 17, 18, 19, 21
8 C.F.R. §§ 214.2(h)(2)(i) ............................................................................................................... 4
8 C.F.R. § 214.2(h)(6)(vi) ........................................................................................................... 4, 6
8 C.F.R. § 214.2(h)(9)(i) ................................................................................................................. 4
8 C.F.R. § 248.3 .............................................................................................................................. 4
22 C.F.R. § 41.53 ............................................................................................................................ 4
22 C.F.R. § 42.71 ............................................................................................................................ 4
55 Fed. Reg. 2606 (Jan. 26, 1990) .................................................................................................. 5
73 Fed. Reg. 78104 (Dec. 19, 2008) ............................................................................................... 3
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INTRODUCTION
Plaintiffs, a contracting association and a disparate group of businesses in Guam, challenge
the government’s denial of H-2B petitions filed by employers in Guam and seek a court order
directing Defendants to reopen and grant any petitions that have or will be filed by an employer in
Guam and which have or will be denied on the ground that the employer failed to demonstrate
“temporary need.” See First Amended Complaint (“FAC”), ECF No. 23, ¶¶ 1, 124, 130–169.1
Plaintiffs contend they are entitled to such relief because the United States Citizenship and
Immigration Services (“USCIS”) has or will unlawfully deny their H-2B petitions based “on a
seemingly new interpretation” of “temporary service or labor.” FAC ¶ 6. But they fail to identify
any rule, guidance, or memorandum reflecting USCIS’s purported change in policy and do not
describe the “seemingly new interpretation” of temporary need on which USCIS allegedly relied
(or will rely) to deny their and the putative class members’ H-2B petitions. Instead, they simply
contend USCIS must have changed its interpretation of temporary need because, according to
Plaintiffs, USCIS denied their (and others’) H-2B petitions in 2015 and 2016 after having approved
their (and others’) H-2B petitions based on the same set of operative facts in previous years. This
allegation does not raise a justiciable claim, nor does it show Plaintiffs are entitled to any relief.
As an initial matter, Plaintiffs’ allegations cannot be reviewed by this Court because the
Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. does not authorize courts to engage
in judicial review of “agency action” based on a series or pattern of allegedly unlawful decision
making. See, e.g., Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891–94 (1990). Instead, to invoke
this Court’s jurisdiction, Plaintiffs must seek review of discrete “final agency action [that] has an
actual or immediately threatened effect.” Id. at 894 (internal quotations omitted). Because none
1 Plaintiffs served their complaint on Defendants on or about October 11, 2016. ECF No. 1. With Defendants’ consent, Plaintiffs filed their amended complaint on December 14, 2016. ECF No. 23.
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of the counts in Plaintiffs’ amended complaint meet this standard, the Court should dismiss this
action in its entirety pursuant to Fed. R. Civ. P. 12(b)(1).
Moreover, even if the Court were to read Plaintiffs’ claims for relief as limited to USCIS’s
actions on the petitions that Plaintiffs describe in the background section of their amended
Complaint, FAC ¶¶ 32–58, none state a claim on which this Court may grant relief. All seven
counts that Plaintiffs raise in their amended complaint either lack a cognizable legal theory or
plausible factual allegations to support a cognizable legal theory. Accordingly, even if the Court
were to find that it has subject matter jurisdiction over any of these claims, it must nevertheless
dismiss this action in its entirety pursuant to Fed. R. Civ. P. 12(b)(6).
STATUTORY AND REGULATORY BACKGROUND
The Immigration and Nationality Act (“INA” or “Act”), codified as amended at 8 U.S.C.
§ 1101, et seq, defines various classes of temporary (“nonimmigrant”) workers who may be
admitted to the United States for specific purposes and limited periods of time. See 8 U.S.C. §
1101(a)(15). As relevant here, the Act defines an “H-2B” nonimmigrant as “an alien . . . having a
residence in a foreign country which he has no intention of abandoning who is coming temporarily
to the United States to perform other [i.e., nonagricultural] temporary service or labor if
unemployed persons capable of performing such service or labor cannot be found in this country.”
8 U.S.C. § 1101(a)(15)(H)(ii)(b).2 Aliens who meet this classification are not automatically
entitled to enter or work in the United States; rather, Congress has left “[t]he question of importing
any alien as [an H-2B nonimmigrant] in any specific case or specific cases” to the Secretary of
Homeland Security (“Secretary”), and his designee, USCIS, “after consultation with appropriate
2 Those admitted to the United States under this classification are commonly called “H-2B workers.”
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agencies of the Government,” and “upon petition of the importing employer.” 8 U.S.C. § 1184(c).3
“Such petition shall be made and approved before the visa is granted” and “shall be in such form
and contain such information as the [Secretary] shall prescribe.” Id.
The importation of H-2B workers is a multi-step process that involves three different
government entities. First, in deciding the question of whether an employer may “import” H-2B
workers in any specific case or specific cases, the Secretary’s designee, USCIS consults with the
U.S. Department of Labor (“DOL”) —or, if the position is in Guam, the Guam Department of
Labor (“Guam DOL”)—to determine whether U.S. workers are available to perform the labor or
services to be performed by H-2B workers and whether the employment of H-2B workers in those
positions will adversely affect U.S. workers. See Changes to Requirements Affecting H-2B
Nonimmigrants and Their Employers, Final Rule, 73 Fed. Reg. 78104 (Dec. 19, 2008). This
consultation takes place in the form of a “temporary labor certification,” which is intended to serve
as advice from DOL or Guam DOL “on whether or not United States workers capable of
performing the temporary labor or services [described in the petition] are available and whether or
not the alien’s [or aliens’] employment will adversely affect the wages and working conditions of
similarly employed United States workers.” 8 C.F.R. § 214.2(h)(6)(iii)(A); see also
§214.2(h)(6)(v). Prospective H-2B employers must apply for and receive a temporary labor
certification before petitioning USCIS for permission to employ H-2B workers.
Second, once an employer obtains a temporary labor certification, it must file an I-129
Petition for Nonimmigrant Worker (“H-2B petition”) with USCIS, a component of the Department
3 Under the Homeland Security Act of 2002 (“HSA”), Pub. L. No. 107-269, 116 Stat. 2135 (Nov. 25, 2002), the Attorney General’s responsibilities under section 1184(c) were expressly transferred to the Secretary of Homeland Security. See 6 U.S.C. §§ 202, 271(b). The HSA dismantled the former Immigration and Naturalization Service (“INS”) and separated it into three components within the Department of Homeland Security (“DHS”): USCIS, which administers and adjudicates immigration benefits; Immigration and Customs Enforcement; and Customs and Border Protection.
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of Homeland Security (“DHS”), to have the foreign workers whom it seeks to employ classified
as H-2B nonimmigrants. 8 C.F.R. §§ 214.2(h)(1)(ii)(D), 214.2(h)(6)(iii)(C)–(E). Employer-
petitioners bear the burden of demonstrating that they (and their beneficiaries) are eligible for H-
2B classification. 8 U.S.C. § 1361.
Third, if USCIS approves the petition, an alien beneficiary of the H-2B petition who is
outside the United States may apply for a visa at a U.S. embassy or consulate abroad, if all other
relevant conditions are satisfied. 8 U.S.C. § 1202; 8 C.F.R. § 214.2(h)(9)(i); 22 C.F.R. § 41.53.
The authority to grant or deny a visa application rests with the consular officer. See 8 U.S.C. §
1201(a)(1); 22 C.F.R. § 42.71, 42.81; 8 U.S.C. § 1361 (providing that applicant has burden of
proof to establish eligibility for visa “to the satisfaction of the consular officer”). Once the alien-
beneficiary obtains a visa, he or she may travel to the United States and work for the employer
who filed the H-2B petition—but only that employer—under the terms and conditions specified in
the petition. 8 C.F.R. §§ 214.2(h)(2)(i), 214.2(h)(13)(i)(A). The alien-beneficiary may not work
beyond the validity period of the approved petition unless the employer-petitioner files an H-2B
petition to extend his or her nonimmigrant status, nor may he or she work for any employer other
than the employer who filed the petition unless the new employer files its own H-2B petition to
adjust the beneficiary’s status and sponsor his or her employment. Id.; 8 C.F.R. § 248.3.
Because the INA limits the work that may be performed by H-2B workers to
nonagricultural “temporary service or labor,” H-2B petitions must be accompanied by a statement
“describing in detail the temporary situation or conditions which make it necessary to bring the
alien[s] to the United States and whether the need is a one-time occurrence, seasonal, peakload, or
intermittent.” 8 C.F.R. § 214.2(h)(6)(vi); see also 8 C.F.R. § 214.2(h)(6)(ii)(B). Petitioners must
provide information about temporariness to DOL or Guam DOL when they apply for a temporary
labor certification, but DOL or Guam DOL determines whether the petitioner has a “need for
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temporary workers to fill those jobs for which U.S. workers are not available.” 73 Fed. Reg. at
78119; see id. (“The regulation contemplates a double-check system to ensure that the job in
question is in fact temporary in nature. First, when seeking a temporary labor certification with
DOL, the employer must not only describe to DOL the nature, scope, and duration of the temporary
job, but also justify the need for temporary workers to fill those jobs for which U.S. workers are
not available.”). DHS, however, has the ultimate authority to determine whether a petition satisfies
the requirements of section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act. As such,
“DHS retains the authority, even after DOL approves the temporary labor certification, to
determine, at the time it adjudicates the H-2B petition, whether the petitioner’s need is in fact
temporary, that is, of a limited, finite nature.” Id.; see also 8 C.F.R. 214.2(h)(1)(ii)(D) (“The
temporary or permanent nature of the services or labor described on the approved temporary labor
certification are subject to review by USCIS.”).
Per DHS regulations, a position is “temporary” if “the petitioner’s need for the duties to be
performed by the employee(s) is temporary, whether or not the underlying job can be described as
permanent or temporary.” 8 C.F.R. § 214.2(h)(6)(ii)(A). This interpretation is consistent with the
former INS’s and USCIS’s longstanding policy, first announced in Matter of Artee Corp., 18 I. &
N. Dec. 366 (1982), that in determining whether an alien is coming “temporarily” to the United
States to “perform temporary services or labor” as required by 8 U.S.C. § 1101(a)(15)(H)(ii), it is
the nature of the employer’s need, and not the nature of the duties, that is controlling.4 See also
55 Fed. Reg. 2606, 2615–16 (Jan. 26, 1990) (incorporating the Matter of Artee test into INS
4 Matter of Artee reversed Matter of Contopoulous, 10 I. & N. Dec 654 (1964), which “determined temporariness by looking to the nature of the duties performed, not to the intent of the petitioner employer and the alien beneficiary concerning the time that the alien beneficiary would be employed in that position.” Sussex Eng’g, Ltd. v. Montgomery, 825 F.2d 1084, 1088 (6th Cir. 1987). After Artee, the mere fact that a particular position is temporary is insufficient to qualify for H-2B classification; the employer’s need for a person to perform the duties required of that position is the controlling factor of the analysis.
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regulations). Accordingly, in determining whether a position qualifies for the H-2B program,
USCIS focuses on the petitioner’s need for the labor or services to be performed by H-2B workers,
and not necessarily the duration of the particular position to be filled by the H-2B workers. See 8
C.F.R. § 214.2(h)(6)(ii)(B) (“Employment is of a temporary nature when the employer needs a
worker for a limited period of time.”). “The employer must establish that the need for the
employee will end in the near, definable future.” Id. In most cases, “that period is limited to one
year or less, but in the case of a one-time event could last up to 3 years.” Id.
A petitioner’s need for the labor or services to be performed by H-2B workers must meet
one of four standards outlined in the regulations: 1) a one-time occurrence; 2) a seasonal need; 3) a
peakload need; or, 4) an intermittent need. 8 C.F.R. § 214.2(h)(6)(vi); see also 8 C.F.R. §
214.2(h)(6)(ii)(B). Only two of these categories—a “one-time occurrence” and a “peakload”
need—are relevant to Plaintiffs’ claims. To demonstrate a one-time occurrence, “[t]he petitioner
must establish that it has not employed workers to perform the services or labor in the past and
that it will not need workers to perform the services or labor in the future, or that it has an
employment situation that is otherwise permanent, but a temporary event of short duration has
created the need for a temporary worker.” 8 C.F.R. § 214.2(h)(6)(ii)(B)(1). To demonstrate a
peakload need, “[t]he petitioner must establish that it regularly employs permanent workers to
perform the services or labor at the place of employment and that it needs to supplement its
permanent staff at the place of employment on a temporary basis due to a seasonal or short-term
demand and that the temporary additions to staff will not become a part of the petitioner’s regular
operation.” 8 C.F.R. § 214.2(h)(6)(ii)(B)(3).
STANDARDS OF REVIEW
I. Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)
Federal courts are courts of limited jurisdiction, possessing only the power authorized to
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them by statute and by the Constitution. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.
375, 376 (1994). In reviewing a motion under Federal Rule of Civil Procedure 12(b)(1), the court
must presume that it lacks subject-matter jurisdiction over any claims until the plaintiff proves
otherwise. See, e.g., Kokkonen, 511 U.S. at 377; La Reunion Francaise SA v. Barnes, 247 F.3d
1022, 1026 (9th Cir. 2001). Defendants may challenge a plaintiff’s jurisdictional allegations in
one of two ways: (1) by presenting a “facial” attack that accepts the truth of the plaintiff’s
allegations but asserts they are insufficient on their face to invoke federal jurisdiction, or (2) a
“factual” attack that contests the truth of the plaintiff’s factual allegations, usually by introducing
evidence outside the pleadings. Leite v. Crane Co., 749 F.3d 1117, 1121-22 (9th Cir. 2014). The
burden of proof rests solely with the party asserting jurisdiction. See Ass’n of Am. Med. Coll. v.
United States, 217 F.3d 770, 778 (9th Cir. 2000).
Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed if it “fail[s]
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under Rule
12(b)(6) is appropriate when a plaintiff’s complaint lacks a cognizable legal theory or sufficient
facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
699 (9th Cir. 1990). To avoid a Rule 12(b)(6) dismissal, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face[.]” Telesaurus
VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citations omitted). A complaint need not
contain “detailed factual allegations”; however, “a plaintiff’s obligation to provide the grounds of
his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotations omitted). Moreover, while a plaintiff is not required to establish a probability of success
on the merits, he or she must demonstrate “more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678. “In sum, for a complaint to survive a motion to dismiss, the non-
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conclusory factual content, and reasonable inferences from that content, must be plausibly
suggestive of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d
962, 969 (9th Cir. 2009) (internal quotations omitted).
II. Review of Agency Action Under The APA
“Under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), a court may set aside a
determination of [an agency] as arbitrary, capricious, or an abuse of discretion. The determination
must be made on the administrative record before the [agency].” Tongatapu Woodcraft Hawaii,
Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984). Review under the arbitrary and capricious
standard is highly deferential. A reviewing court must uphold the agency’s decision unless the
agency “has relied on factors which Congress had not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Nat’l Ass'n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 658 (2007) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)) (internal quotations omitted). The court’s role is “not to substitute
its judgment for that of the agency,” but rather, to examine whether there is a “rational connection
between the facts found and the choice made” by the agency. Bonneville Power, 477 F.3d 668,
687 (9th Cir. 2007) (quoting State Farm, 463 U.S. at 43) (internal quotation marks omitted). Even
if the agency’s decision is “of less than ideal clarity,” the court should uphold the decision “if the
agency’s path may reasonably be discerned.” Nat’l Ass'n of Home Builders, 551 U.S. at 658
(quoting Bowman Transp., Inc. v. Arkansas–Best Freight System, Inc., 419 U.S. 281, 286 (1974))
(internal quotation marks omitted).
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ARGUMENT
I. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Claims
The INA does not provide employers with a cause of action authorizing judicial review of
the government’s decision to grant or deny a petition to import foreign labor in any specific case
or cases, see 8 U.S.C. § 1184(c). Accordingly, an employer seeking to challenge USCIS’s denial
of a temporary worker visa petition must rely on the waiver of sovereign immunity and cause of
action in the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 704. Plaintiffs in the instant
matter fail to satisfy a foundational requirement for judicial review under the APA: they do not
seek review of any discrete, reviewable agency action. Instead, their amended complaint raises
general allegations about USCIS’s adjudication of H-2B petitions filed by employers in Guam and,
based on these allegations, Plaintiffs seek broad injunctive relief affecting USCIS’s adjudication
of all H-2B petitions that have been or will be filed by employers in Guam for an unspecified
period of time. These broad claims are not permitted under the APA and represent precisely the
type of programmatic challenge that the Supreme Court has repeatedly struck down. Accordingly,
the Court lacks subject matter jurisdiction over Plaintiffs’ claims for relief and should dismiss
Plaintiffs’ amended complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1).
Plaintiffs May Only Challenge Discrete, Identifiable USCIS Decisions
The APA waives sovereign immunity over, and authorizes judicial review of, claims
brought by persons who are “suffering legal wrong because of agency action” or “adversely
affected or aggrieved by agency action within the meaning of the relevant statute.” 5 U.S.C. §
702. Not all such actions are subject to judicial review, however. Where, as here, the agency
action complained of is not made reviewable by statute, it must constitute “final agency action for
which there is no other adequate remedy in a court.” Id. at § 704 (emphasis added); see Norton v.
Southern Utah Wilderness Alliance [“SUWA”], 542 U.S. 55, 61–62 (2004). It must also be one of
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the circumscribed, discrete actions described in the APA, i.e., “the whole or a part of an agency
rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. at 62
(quoting 5 U.S.C. § 551(13)). Accordingly, plaintiffs seeking review under the APA only have
standing to challenge discrete “final agency action” that causes them harm. Id. at 62. This
requirement precludes lawsuits seeking “wholesale improvement of [an agency] program by court
decree, rather than in the offices of the Department or the halls of Congress, where programmatic
improvements are normally made.” Lujan 497 U.S. at 891. It serves to “protect agencies from
undue judicial interference” and to “avoid judicial entanglement in abstract policy disagreements
which courts lack both expertise and information to resolve.” SUWA, 542 U.S. at 66. While
Plaintiffs may find the case-by-case approach that APA review requires “understandably
frustrating,” it is the traditional mode of judicial operation and “[e]xcept where Congress explicitly
provides for [judicial] correction of the administrative process at a higher level of generality,”
courts may “intervene in the administration of the laws only when, and to the extent that, a specific
‘final agency action’ has an actual or immediately threatened effect.” Lujan 497 U.S. at 894.
Plaintiffs’ Claims Fail to Challenge Discrete Agency Action
Given the clear limits on judicial review of agency action, this Court does not have
jurisdiction to hear Plaintiffs’ challenge to an alleged change in “policy” or “interpretation” in a
programmatic challenge to all H-2B petitions that have been, or will be, filed by an employer in
Guam. See, e.g., RCM Tech., Inc. v. U.S. Dep’t of Homeland Sec., 614 F. Supp. 2d 39, 45 (D.D.C.
2009) (“[P]laintiffs have no likelihood of success on the merits of this case because they are
challenging an alleged “policy,” not the specific denial of a visa application made pursuant to that
policy”). In order to bring their claims, each Plaintiff must limit their challenge to the denial of a
specific, identifiable petition. None of the counts in their amended complaint meet this threshold
requirement: Plaintiffs simply refer to “H2B applications,” “petitions,” the “agency decision” (or
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“decisions”), or “agency action” (or “actions”), without identifying the actual applications,
petitions, or decisions for which they seek review. See e.g., FAC ¶¶ 130, 138–140, 142–45, 149,
151–56, 160, 162–63, 166, 168.5
Plaintiffs cannot plausibly argue that their generic references to applications, petitions, and
decisions are the result of mere oversight. Part II of Plaintiffs’ Amended Complaint describes
various petitions that have been denied, are pending with a USCIS service center, are pending on
appeal, or that have been withdrawn. See FAC ¶¶ 32–58, Exhibit 20. However, when viewed in
its entirety, their amended complaint does not challenge USCIS’s actions on these H-2B petitions,
but rather, USCIS’s denial (or future denial) of any H-2B petition for failure to demonstrate a
temporary need filed by any employer in Guam. A challenge such as this is not justiciable. See
Lujan, 497 U.S. at 891. Plaintiffs cannot simply lump together all of USCIS’s actions on every
H-2B petition that has been or will be filed by an employer in Guam and which has been or will
be denied for a failure to demonstrate a temporary need, and pretend as though USCIS’s actions
on all of these petitions constitute one discrete “rule” or “order” subject to judicial review. See,
e.g., Osage Producers Ass’n v. Jewell, --- F. Supp. 3d ---, 2016 WL 3093938, at *2 (N.D. Okla.
June 1, 2016) (dismissing APA challenge where plaintiff “generically describe[d] certain arbitrary
or unlawful agency practices—such as unreasonably delaying the issuance of drilling permits—
and request[ed] review of all agency actions falling within those descriptions”) (emphasis in
original); Alabama-Coushatta Tribe of Texas v. United States, 757 F.3d 484, 490-91 (5th Cir.
2014) (rejecting APA challenge to past and ongoing approval of oil and gas leasing and timber
5 Some counts reference petitions or applications filed by “Plaintiffs’ and the Proposed Class,” but this limitation does not provide any clarity as to the actual agency actions that would be subject to judicial review. None of Plaintiffs’ counts contain any temporal scope, FAC ¶¶ 130–168, and each of the Plaintiffs appears to have filed multiple H-2B petitions for various positions in numerous years. Likewise, it is not clear who the members of the putative class would be or which petitions filed by those putative class members are encompassed by Plaintiffs’ claims.
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exploitation programs as “programmatic challenge,” where Tribe’s complaint was “structured as
a blanket challenge to all of the Government’s actions with respect to all permits and leases granted
for natural resource extraction on a significantly large amount of land” rather than a challenge “to
a particular and identifiable action taken by the Government.”); see also Fanin v. U.S. Dep’t of
Veterans Affairs, 572 F.3d 868, 876 (11th Cir. 2009) (“Broad programmatic attacks against
agencies are not permissible under the APA.”); Colo. Farm Bureau Fed’n v. U.S. Forest Serv.,
220 F.3d 1171, 1173 (10th Cir. 2000) (plaintiffs seeking relief under the APA have the “burden of
identifying specific federal conduct and explaining how it is ‘final agency action’ within the
meaning of section 551(13).”).
The fact that Plaintiffs amended their complaint to identify the H-2B petitions that certain
Plaintiffs filed with USCIS over the course of the past year, FAC ¶¶ 32–58, does not render their
claims for programmatic relief reviewable. None of Plaintiffs’ claims or requests for relief is
limited to USCIS’s actions on specific petitions. See FAC ¶¶ 130–169. Instead, Plaintiffs rely on
USCIS’s alleged pattern or practice of denying H-2B petitions filed by employers in Guam to
allege that USCIS has unlawfully changed its interpretation of “temporary need,” and citing this
allegedly unlawful change in policy, they ask the Court to grant broad, prospective injunctive relief
blocking USCIS from denying any H-2B petitions that they or the putative class members’ have
or will file in the future based on the petitioner’s failure to demonstrate temporary need.
Simply identifying examples of petitions that USCIS denied over the course of the past
year does not make Plaintiffs’ generic claims justiciable. See e.g., Lujan, 497 U.S. at 893 (“[T]he
flaws in the entire “program”—consisting principally of the many individual actions referenced in
the complaint, and presumably actions yet to be taken as well—cannot be laid before the courts
for wholesale correction under the APA, simply because one of them that is ripe for review
adversely affects one of respondent’s members.”). The Fifth Circuit squarely addresses this issue
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in Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) (en banc). There, the plaintiffs attempted
to challenge the Forest Service’s alleged unlawful practice of permitting “even-aged timber
management” in Texas forests. Id. at 563. Like the Plaintiffs in this action, they amended their
complaint to identify specific Forest Service decisions that allegedly evidenced this unlawful
practice; however, again, like the Plaintiffs in this action, they did not limit their claims to the
specific allegedly unlawful decisions, but instead relied on these decisions to seek broad, injunctive
relief blocking the Forest Service from engaging in the allegedly unlawful practice evidenced in
those decisions. Id. at 563-64. The district court granted the plaintiffs’ request for injunctive
relief, but the Fifth Circuit reversed, finding the district court did not have jurisdiction to consider
the plaintiffs’ claims, as they did not challenge “an identifiable action or event.” Id. at 565. The
court acknowledged that the plaintiffs had identified twelve allegedly unlawful timber sales in
their complaint, but noted the plaintiffs’ claims went “well beyond any challenge to discrete sales,”
and citing Lujan, it held the plaintiffs could not “challenge an entire program by simply identifying
specific allegedly-improper final agency actions within that program.” Id. at 567.
Here, as in Peterson, any doubt concerning the programmatic nature of Plaintiffs’ claims
is eliminated by their sweeping prayer for relief. Plaintiffs do not seek to redress any particularized
injury resulting from a discrete “final agency action,” but instead request an injunction requiring
Defendants to take action on large unidentified groups of petitions. See FAC, Section VI (“Prayer
for Relief”) at 37–39. Specifically, Plaintiffs’ amended complaint challenges USCIS’s
determination of temporary need for every petition that “has or will” be filed by an employer in
Guam, and it seeks broad, prospective relief for all H-2B petitions that Plaintiffs (and the putative
class members) have filed, or will file, for an unspecified period of time. See FAC, ¶124 (defining
the putative class), ¶¶ 130–169 (raising counts based on generalized allegations); Section VI, ¶¶
1–14 (seeking relief on behalf of all Plaintiffs and the putative class). Plaintiffs’ attempt to
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challenge a “policy” based on an alleged pattern or practice of unlawful decision making is not
justiciable and must be dismissed. Cf. Friends of Animals v. Ashe, 174 F. Supp. 3d 20, 37 (D.D.C.
2016) (dismissing claim alleging that federal defendants adopted a “policy and repeated practice
of issuing permits to import sport-hunted trophies of endangered animals” in violation of the
Endangered Species Act and the APA because the plaintiffs’ citation to specific permits did not
“give them a platform from which they may request ‘wholesale correction’ of the agency’s
permitting program.”) (citing Lujan, 497 U.S. at 893); Fund for Animals v. BLM, 357 F. Supp. 2d
225, (D.D.C. 2004) (citing Peterson and dismissing complaint for failure to challenge final agency
action despite the fact that the plaintiffs named several specific gather and removal decisions
regarding wild horses); Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 102-03 (D.D.C. 2000)
(finding Peterson “particularly instructive” in rejecting plaintiffs’ use of “examples” of final
agency action to establish a larger pattern of agency misconduct). Because none of Plaintiffs’
claims challenge discrete “agency action,” as required by 5 U.S.C. § 702, the Court should dismiss
Plaintiffs’ amended complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1).
II. The Court May Also Dismiss Plaintiffs’ Claims In Their Entirety Under Federal Rule Of Civil Procedure 12(B)(6)
Even if the Court were to find it has subject matter jurisdiction over any of the claims in
Plaintiffs’ amended complaint, Plaintiffs are still not entitled to any relief. As explained below,
none of the counts in the amended complaint state a legally cognizable claim on which the Court
may grant relief. The Court, therefore, may also dismiss Plaintiffs’ lawsuit in its entirety under
Rule 12(b)(6).
Plaintiffs’ Claims Fail To Comply With Rule 8’s Pleading Standards
As a general matter, Plaintiffs’ amended complaint fails to meet the pleading standard
required by Rule 8 of the Federal Rules of Civil Procedure. See Mendiondo v. Centinela Hosp.
Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (“Under Rule 8(a), the plaintiff must give the
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defendant fair notice of what the . . . claim is and the grounds upon which it rests.”) (internal
quotation marks omitted)). To comply with Rule 8, a plaintiff must plead a short and plain
statement of the elements of his or her claim and identify the transactions or occurrences giving
rise to their cause of action. Bautista v. Los Angeles Cty., 216 F.3d 837, 840 (9th Cir. 2000). Here,
none of the counts in Plaintiffs’ amended complaint meet this requirement: they are replete with
conclusory and generalized allegations that do not distinguish among the defendants and they fail
to identify the specific agency action(s) (i.e., the necessary transaction or occurrence giving rise to
a claim under the APA) on which they are premised. For example, Count I alleges that “Plaintiffs
and the Proposed class have a clear and certain claim to have their H2B applications approved
having demonstrated temporary need by a preponderance of the evidence,” FAC ¶ 130, but it does
not specify which “H2B applications” filed by Plaintiffs or putative class members allegedly meet
this standard. Counts II, III, and IV contain similar deficiencies: they allege Plaintiffs and the
proposed class “have a right to review of the agency decisions” or “the agency decision,” but they
neglect to identify “the agency decisions” or “agency decision” of which Plaintiffs and the putative
class allegedly have a right to review. See Compl. ¶¶ 140, 142, 145. Likewise, Count V alleges
“Defendants actions are unconstitutional, violate the Immigration and Nationality Act, and are
arbitrary and capricious,” but it does not identify the putatively illegal actions or the constitutional
or statutory provisions Defendants allegedly violated. FAC ¶ 152. Finally, Counts VI and VII
similarly fail to specify the H-2B petitions that were allegedly inequitably or unlawfully denied,
or the labor certifications that they allege should be extended. FAC ¶¶ 162–169.
Plaintiffs’ failure to sufficiently identify the agency actions of which they seek review
requires dismissal of their claims. See, e.g., Wild Fish Conservancy v. Jewell, 730 F.3d 791, 801
(9th Cir. 2013) (dismissing “vague” challenge to Defendants’ “operation” of two dams); Ctr. for
Biological Diversity v. Veneman, 394 F.3d 1108, 1111–13 (9th Cir. 2005) (allegation that United
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States Forest Service failed to “consider” classification of 57 rivers in Arizona did not challenge
final agency action); Colo. Farm Bureau Fed’n v. U.S. Forest Serv., 220 F.3d 1171, 1173 (10th
Cir. 2000) (Plaintiffs seeking relief under the APA have the “burden of identifying specific federal
conduct and explaining how it is ‘final agency action’ within the meaning of section 551(13).”).
In addition to the jurisdictional implications arising from Plaintiffs’ failure to specify the
agency actions of which they seek review, their omission of this information also affects the
orderly conduct of the case. The Court’s review of USCIS’s decisions denying each Plaintiffs’ H-
2B petition is limited to the administrative record documenting USCIS’s action on that particular
petition. See 5 U.S.C. § 706; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420
(1971). Because Plaintiffs have failed to identify the specific, discrete action(s) for which they
seek review, Defendants do not have sufficient information to respond to their claims and cannot
compile and submit the administrative record applicable to their claims. Given the lack of
specificity in Plaintiffs’ pleadings, and assuming for the sake of argument that this matter was
justiciable, the administrative record for this case would ostensibly include USCIS’s record of
proceedings for every H-2B petition that has been, or will be filed by an employer in Guam, and
which has been, or will be denied by USCIS on the ground that the petitioning employer failed to
establish a temporary need for the labor or services to be performed by H-2B workers. FAC ¶ 124
(describing putative class). The compilation of such a record is not feasible; there is no temporal
scope to the H-2B petitions that must be included and USCIS cannot possibly document its
adjudication of H-2B petitions that have not yet been filed.
Plaintiffs’ amended complaint, therefore, fails to properly plead the elements of their
claims for relief, and fails to identify the transactions or occurrences giving rise to their purported
causes of action. Accordingly, Plaintiffs’ failure to identify the agency actions of which they seek
review with any specificity requires dismissal of their claims. See Fed. R. Civ. P. 8, 12(b)(6).
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Plaintiffs Fail to State a Cognizable Claim For Relief Under The APA
1. Neither the INA nor DHS regulations provide Plaintiffs with a cause of action to challenge USCIS’s denial of H-2B Petitions and USCIS’s approval of an H-2B petition does not automatically entitle the petitioner to approval in subsequent years (Counts I, III, V, VI, VII)
Plaintiffs allege they and the putative class members have demonstrated temporary need
by a preponderance of the evidence, and that having done so, they have “a clear and certain claim
to have their H2B applications approved.” FAC ¶ 130 (citing USCIS’s Adjudicator’s Field
Manual, § 11.1(c)). They further allege that “[b]y denying the petitions by the same petitioners
after years (decades of approvals under the same set of operative facts and without a change in the
law or regulations, Defendants violate 8 C.F.R. § 214.2 et seq,” FAC ¶ 139, or alternatively, that
Defendants denial of Plaintiffs and the putative class members’ petitions under these
circumstances “constitutes agency action that is arbitrary, capricious, and abuse of discretion, and
not in accordance with the law pursuant to 5 U.S.C. § 706(2)(A).” These claims are not legally
cognizable for several reasons.
As an initial matter, because Plaintiffs have not identified an applicable statutory cause of
action, any action to “enforce” their purported “clear and certain” claim to have their petitions
approved must be brought under § 706(1) of the APA. See 5 U.S.C. § 706(1) (authorizing a court
to “compel agency action unlawfully withheld or unreasonably delayed.”). Likewise, any action
challenging Defendants’ alleged violation of 8 C.F.R. § 214.2 et seq must be brought under §
706(2) of the APA. See 5 U.S.C. § 706(2)(A) (authorizing a court to “hold unlawful and set aside”
agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law”). As discussed above, Plaintiffs’ claims are not justiciable under § 706(1)
or § 706(2) because they do not challenge any discrete agency action. But even assuming,
arguendo, that these claims were justiciable, Plaintiffs’ allegations concerning their “clear and
certain claim” and Defendants’ purported “violation” of the regulations are meritless and must be
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dismissed for failure to state a claim.
To the extent Plaintiffs are seeking to compel any particular agency action under 5 U.S.C.
§ 706(1), they fail to state a cognizable claim for relief because they do not identify any authority
suggesting USCIS failed to perform a discrete action legally required of it. See, e.g., SUWA, 542
U.S. at 64 (“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency
failed to take a discrete agency action that it is required to take.”) (emphasis in original). A
reviewing court’s authority under § 706(1) is limited; it may only compel an agency “to perform
a ministerial or non-discretionary act,” or “to take action upon a matter, without directing how it
shall act.” Id. at 63; Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir.
2010) (“[O]ur ability to ‘compel agency action’ is carefully circumscribed to situations where an
agency has ignored a specific legislative command.”). Notably, Plaintiffs do not identify the
source of their “clear and certain claim to have their H2B applications approved,” or the provision
of 8 C.F.R. §§ 214.2 et seq. that Defendants allegedly violated. FAC ¶ 130. That is because no
such claim or violation exists. Nothing in the INA, DHS regulations, or the Adjudicator’s Field
Manual supports Plaintiffs’ allegation that Defendants (or any government official for that matter)
have “a ministerial, non-discretionary duty to approve the H2B applications once the Plaintiffs
have demonstrated temporary need by a preponderance of the evidence.” FAC ¶ 138. Likewise,
neither the INA, nor DHS regulations, nor the Adjudicator’s Field Manual suggest that an
employer is entitled to approval of their H-2B petition if it is based on “the same set of operative
facts” as a petition the employer filed, and USCIS approved, in a previous year. The regulatory
provisions to which Plaintiffs cite, 8 C.F.R. § 214.2(h)(6)(ii)(B)(1) and (3), merely define the
peakload and one-time occurrence standards of temporary need; they do not provide Plaintiffs a
cause of action or create any entitlement to approval of an H-2B petition once these standards have
been established. And the section of the Adjudicator’s Field Manual on which Plaintiffs rely, §
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11.1(c)), simply recounts the burden and standard of proof applicable to the adjudication of
Plaintiffs’ petitions; it does not provide Plaintiffs with a cause of action to enforce this standard of
proof or entitle Plaintiffs to approval of an H-2B petition that allegedly meets this standard. As
Plaintiffs’ allegations do now show that they have “clear and certain claim to have their H2B
applications approved” or that USCIS has a ministerial, nondiscretionary duty to approve their
(and the putative class members’) H-2B petitions, any claim seeking to compel USCIS to approve
their and the putative class members’ petitions must be dismissed.
Moreover, to the extent Plaintiffs rely on similar allegations to have USCIS’s denials “set
aside” under § 706(2), these claims must also fail because the amended complaint does not allege
any facts showing USCIS’s denials were in any way arbitrary, capricious, an abuse of discretion,
or otherwise contrary to law. Plaintiffs do not allege any facts from which the Court can plausibly
infer that, in denying their and the putative class members’ petitions, USCIS relied on factors
which Congress had not intended it to consider, entirely failed to consider an important aspect of
the problem, or offered an explanation for its decision that ran counter to the evidence before it or
that is so implausible it could not be ascribed to a difference in view or the product of agency
expertise. Instead, Plaintiffs simply contend that “[b]y denying the petitions by the same
petitioners after years (decades) of approvals under the same set of operative facts and without a
change in the law or regulations,” Defendants either “violate 8 C.F.R. § 214.2 et seq.” or act in a
manner that is “arbitrary, capricious, and abuse of discretion, and not in accordance with the law
pursuant to 5 U.S.C. § 706(2)(A).” FAC ¶¶ 139, 143. Plaintiffs’ first claim has no basis in law.
As discussed above, neither the regulations nor the Adjudicator’s Field Manual suggest that a
petitioner is entitled to H-2B classification if they base their petition on “the same set of operative
facts” as petitions that it has filed, and USCIS has approved, in previous years. And Plaintiffs’
second claim is not supported by any factual allegations that plausibly show Defendants acted in
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the manner Plaintiffs allege. See Ness Inv. Corp. v. U.S. Dep’t of Agr., Forest Serv., 512 F.2d 706,
717 (9th Cir. 1975) (“A general allegation that agency action was arbitrary, capricious or contrary
to law adds nothing to a complaint.”). Indeed, their allegation that they have based their petition
on the “same set of operative facts” as petitions that have been approved in the past is illogical in
that, through the passage of time and the history of approvals, the facts in reviewing the petition
will have necessarily changed. See FAC, Exhibit 21, ECF No. 23-21 at 2 (“Some employers have
expressed a need for H-2B workers spanning over a period of several years, which has cast doubt
on whether these employers’ needs can be properly characterized as ‘temporary.’”).
Plaintiffs cannot merely perfunctorily allege that USCIS’s decision making with respect to
all of their petitions was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
USCIS’s adjudication of H-2B petitions—and in particular, its assessment of a petitioner’s
temporary need—involves individualized petition-specific assessments, and judicial review of
those assessments must be based on the administrative record before USCIS at the time it
adjudicated a particular petition and issued a final decision. See 8 C.F.R. § 214.2(h)(1)(ii)(D);
Fogo De Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127, 1144 (D.C. Cir.
2014) (“Visa decisions can be fact-intensive, and assessing the evidentiary record behind any such
determination is essential to evaluating the reasonableness of the agency’s decision.”). Moreover,
the agency’s determination of whether a particular employer has established the requisite
temporary need must be reviewed under the APA’s arbitrary and capricious or abuse of discretion
standard of review, which, as discussed above, requires identification of a discrete agency action
for judicial review. Cf. Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 768 (9th Cir. 1985) (holding
that the plaintiff must show that the former INS’s refusal to approve the petitions was “irrational”
to have the former INS’s denial of a nonimmigrant visa petition “set aside” under 706(2)(A)).
Plaintiffs essentially allege that it is per se arbitrary, capricious, an abuse of discretion, or
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otherwise contrary to law for USCIS to deny an H-2B petition if, in previous years, it has approved
a petition “based on the same operative facts” and there has been no change in the law or
regulations. This assertion has no basis in law or reason, and it does not give rise to a plausible
inference that USCIS’s denial of every H-2B petition filed by the Plaintiffs or putative class
members was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. See Iqbal,
556 U.S. at 678 (“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’”) (quoting Fed. R. Civ. P. 8(a)(2)).
First, the fact that an employer’s position qualified for H-2B classification in one year does
not mean that a petition allegedly raising “the same operative facts” would be approvable in
succeeding years. The assessment of whether USCIS inappropriately weighed or assessed the
evidence in adjudicating a particular H-2B petition necessarily depends on the circumstances of
that particular petition and the statement of need and documentation that that petitioner provides
in support of its petition. USCIS considers many factors in evaluating an employer’s H-2B
petition, see 8 C.F.R. §§ 214.2 et seq, and USCIS’s determination of whether plaintiffs have
“demonstrated temporary need by a preponderance of the evidence” is a factual, petition-specific
assessment left to the informed discretion of USCIS, see 8 C.F.R. § 214.2(h)(1)(ii)(D). Each
petition is a separate proceeding with a separate record, 8 C.F.R. § 103.2(b)(16)(ii), and a decision
in an earlier case that has not been designated as a precedent decision is not binding on USCIS in
subsequent proceedings. 8 C.F.R. § 103.3(c). Indeed, many courts have found that USCIS’s
approval of a visa petition in previous, non-precedential decisions does not require USCIS to
approve subsequent petitions. E.g., Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir.
2007) (“The mere fact that the agency, by mistake or oversight, approved a specialty occupation
visa petition on one occasion does not create an automatic entitlement to the approval of a
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subsequent petition for renewal of that visa.”); Seven Star. Inc. v. United States, 873 F.2d 225, 227
(9th Cir. 1989) (decision by INS in one year does not mandate the same result in every similar
case in succeeding years); Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987)
(where agency oversight resulted in inconsistent action on similar petitions, “it is absurd to suggest
that the INS or any agency must treat acknowledged errors as binding precedent”); Mott
Thoroughbred Stables, Inc. v. Rodriguez, 87 F. Supp. 3d 237, 244 (D.D.C. 2015) (“Although the
denial of the latest O–1 Petition is a departure from the earlier, favorable adjudications of the
plaintiff's O–1 Petitions, that alone is an insufficient basis to disturb or set aside the agency
action.”); Boi Na Braza Atlanta, LLC v. Upchurch, No. 04–CV–2007–L, 2005 WL 2372846, at *9
(N.D. Tex. Sept. 27, 2005) (“[T]he court rejects [the] [p]laintiff's argument that the decisions to
deny the petitions in this case were improper because the [USCIS] in the past (and recently) granted
extensions for certain other beneficiaries.”), aff’d, 194 Fed. Appx. 248 (5th Cir. 2006).
Second, an employer seeking to import foreign workers for the same position, i.e. based on
the “same operative facts,” for several years in a row may initially be able to establish that its
position is “temporary” under the regulatory standard for a “one-time occurrence”, but that
regulation strongly suggests the employer would not remain eligible in succeeding years. See 8
C.F.R. § 214.2(h)(6)(ii)(B)(1) (requiring a petitioner to “establish that it has not employed workers
to perform the services or labor in the past and that it will not need workers to perform the services
or labor in the future, or that it has an employment situation that is otherwise permanent, but a
temporary event of short duration has created the need for a temporary worker”). Likewise, if a
petitioner employs H-2B workers in the same positions on a continual, year-round basis, the filing
of successive petitions based on “the same set of operative facts” would show that the H-2B
workers have become a part of the employer’s regular operations, thereby precluding H-2B
classification under the “peakload” standard of temporary need. See 8 C.F.R. §
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214.2(h)(6)(ii)(B)(3) (requiring the petitioner to “establish that it regularly employs permanent
workers to perform the services or labor at the place of employment and that it needs to supplement
its permanent staff at the place of employment on a temporary basis due to a seasonal or short-
term demand and that the temporary additions to staff will not become a part of the petitioner’s
regular operation.”) (emphasis added). In fact, this appears to be the very basis on which many
of Plaintiffs’ H-2B petitions were denied. See, e.g., ECF No. 23-6 at 6 (citing petitioner’s previous
filing history as one basis for concluding it did not qualify under the “peakload” standard of
temporary need); ECF No. 23-9 at 11 (noting petitioner’s previous filing history contradicted
petitioner’s assertion that it had a temporary need for the beneficiaries’ services or labor); ECF
No. 23-10 at 15 (noting USCIS records indicated the petitioner had filed multiple petitions for H-
2B visas in finding that the petitioner did not demonstrate the regulatory standard for a “one-time
occurrence”); ECF No. 23-15 at 7 (citing petitioner’s previous filing history in determining the
petitioner’s need for landscape gardeners was not temporary).
Plaintiffs’ only substantive allegation concerning the substance of USCIS’s denials is that
they “center on a finding that the Plaintiffs’ need is not peakload or one-time occurrence because
the workers would become part of the Plaintiffs’ regular operation.” FAC ¶ 91. It is absurd to
suggest that it would be arbitrary, capricious, an abuse of discretion, or in any way contrary to law
for USCIS to deny an H-2B petition on this basis, as such a finding clearly precludes H-2B
classification under the standard for a “peakload” need, and it strongly suggests that Plaintiffs do
not meet the regulatory standard for a “one-time occurrence.” Plaintiffs also appear to ask the
Court to compel USCIS to change the category of temporary need under which they or the putative
class members applied for H-2B classification (i.e., from peakload to one-time occurrence or vice
versa). FAC ¶ 134. They have failed to state a claim for such relief because they have not
identified any law suggesting USCIS is required to perform the action they seek to compel, nor
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alleged any facts indicating that such a change would make any of their petitions approvable.
In sum, USCIS’s decision making cannot be reviewed in the summary fashion that
Plaintiffs suggest and any claims alleging USCIS’s decisions denying Plaintiffs’ or the putative
class members’ petitions were per se arbitrary, capricious, an abuse of discretion, or otherwise
contrary to law fail to state a claim and must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
2. USCIS is not bound by the Guam DOL’s determination of temporary need and it may deny an H-2B petition, without presenting countervailing evidence, if it determines that a petitioner’s need for the labor or services in the approved temporary labor certification is not temporary in nature (Counts I, V)
Plaintiffs contend USCIS unlawfully denied their and the putative class members’ H-2B
petitions because the Guam DOL had already assessed their temporary need and USCIS was either
bound by this determination, or alternatively, could not “reverse” this determination without
presenting countervailing evidence. See FAC ¶ 133, 156. Plaintiffs raise this claim in their
amended complaint despite the fact that, as Defendants explained in their Opposition to Plaintiffs’
Motion for Preliminary Injunction, ECF No. 13 at 16–17, it has no basis in law and is directly
contradicted by DHS regulations. See 8 C.F.R. § 214.2(h)(1)(ii)(D) (“The temporary or permanent
nature of the services or labor described on the approved temporary labor certification are subject
to review by USCIS.” ).
Guam DOL provides eligible H-2B petitioners with an approved temporary labor
certification stating that qualified workers in the United States are not available to perform the
required services, and that the alien’s employment will not adversely affect the wages and working
conditions of United States resident workers who are similarly employed on Guam. 8 C.F.R.
214.2(h)(6)(v)(A). In that process, Guam DOL may request information regarding the petitioner’s
temporary need for the labor or service to be performed by H-2B workers. Nevertheless, USCIS
retains authority to evaluate the nature of the petitioner’s need for such labor or service at the time
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it adjudicates the H-2B petition. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b), 1184(c). Accordingly, any
redundancy in the application process is intentional:
The regulation contemplates a double-check system to ensure that the job in question is in fact temporary in nature. First, when seeking a temporary labor certification with DOL, the employer must not only describe to DOL the nature, scope, and duration of the temporary job, but also justify the need for temporary workers to fill those jobs for which U.S. workers are not available. USCIS will approve the H-2B petition for the validity period endorsed by the DOL on the approved temporary labor certification. If the temporary labor certification is not endorsed for the full validity period requested by the employer on the H-2B petition, USCIS will require an extension petition to be filed with a current temporary labor certification covering the extended validity period.
Second, DHS retains the authority, even after DOL approves the temporary labor certification, to determine, at the time it adjudicates the H-2B petition, whether the petitioner’s need is in fact temporary, that is, of a limited, finite nature. Similarly, DHS has the authority to revoke such a petition if it determines that the job is in fact not temporary in nature.
73 Fed. Reg. at 78119. Because DHS regulations explicitly authorize USCIS (the Secretary’s
designee for deciding the question of whether an employer may import foreign labor in any specific
case or specific cases) to evaluate a petitioner’s need for the labor or services in an approved
temporary labor certification, Plaintiffs’ claim that USCIS is bound by the Guam DOL’s
determination of temporary need is meritless.
Moreover, the case on which Plaintiffs rely to argue that USCIS cannot “reverse” the Guam
DOL’s determination of temporary need absent countervailing evidence, Matter of Golden Dragon
Chinese Restaurant [“Golden Dragon”], 19 I. & N. Dec. 238 (Comm’r 1984), does not support
their argument and, in fact, contradicts it. The petitioner in Golden Dragon alleged that the former
Immigration & Naturalization Service (“INS”) erred in relying on DOL’s refusal to issue a labor
certification to deny its H-2B petition and argued that INS was required to review its petition on
the merits regardless of whether DOL issued a temporary labor certification. The INS
commissioner agreed that DOL’s role was advisory and that “determinations by the Department
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of Labor are not binding on the Immigration and Naturalization Service,” but upon reviewing the
record, he found it supported DOL’s determination that the petitioner did not have a temporary
need for the position it sought to fill with an H-2B worker. Id. (emphasis added). In so finding,
the commissioner cited a (now defunct) regulation permitting a petitioner to seek H-2B
classification for a position, despite DOL’s refusal to issue a temporary labor certification, if the
petitioner submitted countervailing evidence demonstrating the “inapplicability” of DOL’s
determination. Id. (emphasis added). Nothing in Golden Dragon suggests that USCIS must
present countervailing evidence if it disagrees with DOL’s assessment of a petitioner’s need for
the labor or services to be performed by H-2B workers; to the contrary, it indicates that USCIS
must independently review the nature of a petitioner’s need for the labor or services that DOL
approved in a temporary labor certification. See id. (“Hopefully, an INS administrative adjudicator
would not for[]go independent review of a temporary worker petition in favor of blind acceptance
of a determination made by another agency functioning in an advisory capacity.”). Accordingly,
Plaintiffs’ allegation that USCIS must present countervailing evidence has no basis in law and
must be dismissed.
3. Plaintiffs do not identify the “change in interpretation” on which they allege USCIS relied to deny their and the putative class members’ H-2B petitions and they fail to identify any rule that USCIS should have, but did not, submit for notice & comment (Count II)
Plaintiffs allege they and the proposed class “have the right to review of the agency
decisions under 5 U.S.C. §553,”6 and they contend “Defendants’ adoption of a new agency
interpretation of ‘peakload’ and ‘one-time occurrence,’ without any change in the law or
6 Contrary to Plaintiffs’ allegations, § 553 does not provide any party any right to judicial review. That is not to say that the procedural requirements in § 553 are not enforceable. If a party challenges an agency action that is otherwise reviewable under the APA, then pursuant to § 706(2)(D), a reviewing court can “hold unlawful and set aside” agency action, findings, and conclusions that are “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
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regulations, without notice and comment procedures to the public and with no change in the
operative facts, constitutes substantive rulemaking without the required notice and opportunity for
comment under 5 U.S.C. §553.” FAC ¶¶ 140-41. Because Plaintiffs do not identify any rule or
policy statement implementing the alleged “new agency interpretation,” Defendants are left to
assume that the “agency decisions” of which they allege they have a right to review consist of
USCIS’s decisions denying their and the putative class members’ H-2B petitions. But these
decisions, which were issued in the context of USCIS’s adjudication of H-2B petitions, do not fall
within the purview of 5 U.S.C. § 553, which, on its face, applies only to rulemaking.7 Because
Plaintiffs point to no “action” that can be reasonably understood to constitute a “rule,” much less
a “substantive rule” subject to notice and comment rulemaking, they have failed to state a
cognizable notice and comment claim, and Count II should be dismissed.
Plaintiffs allege no facts that plausibly show Defendants adopted a new interpretation of
“peakload” or “one-time occurrence” standard of temporary need.8 Instead, Plaintiffs rely solely
on statistics issued by the Guam DOL, which indicate that the denial rate of H-2B petitions for
petitioners in Guam increased in 2016. See FAC, Exhibit 1, ECF 23-1 and Exhibit 2, ECF 23-2.9
7 The APA establishes the procedures federal administrative agencies must use for “rule making” and “adjudication.” As defined by the APA, “rulemaking” is the “agency process for formulating, amending, or repealing a rule,” 5 U.S.C. § 551(5), and a “rule” is “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing,” 5 U.S.C. § 551(4). Adjudication, by contrast, “means agency process for the formulation of an order.” 5 U.S.C. § 551(7). An order is defined as “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing,” 5 U.S.C. § 551(6). 8 Defendants have not changed their interpretation of either standard. See FAC, Exhibit 15, ECF No. 23-21; Def. Opp’n to Pl. Mot. for Prelim. Inj., ECF No. 13 at 12-15. 9 In deciding Plaintiffs’ claims, the Court may only consider these statistics if Plaintiffs presented them to USCIS in the course of its adjudication of the H-2B petitions of which they seek review. Cf. IKEA US, Inc. v. Department of Justice, 48 F.Supp.2d 22, 25 (D.D.C.1999) (INS did not act arbitrarily and capriciously
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Plaintiffs’ contention that unspecified previous approvals10 or unspecified precedent established a
“definitive interpretation” of the regulations defining the “peakload” and “one-time occurrence”
standards of temporary need is wholly without merit. Their citation to alleged outcomes in other
visa petition proceedings, without any factual context, does not plausibly show that USCIS
implemented a new interpretation of the “peakload” or “one-time occurrence” standard of
temporary need. Cf. Fogo De Chao, 769 F.3d at 1146 (“Simply identifying outcomes, stripped of
their contextual analysis, falls far short of the documented record of ‘express, direct and uniform
interpretation’ by the agency required before a fixed legal rule will be discerned.”) (quoting Alaska
Professional Hunters Ass'n, Inc. v. F.A.A., 177 F.3d 1030, 1034 (D.C. Cir. 1999), abrogated by
Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199 (2015)). Nor can Plaintiffs plausibly allege that
Defendants are bound by the approval of petitions in previous years. “[A] definitive legal rule
cannot be wrung out of a pattern of decisions unless the decisionmaker has ‘the authority to bind
the agency.’” Id. (citing Devon Energy Corp. v. Kempthorne, 551 F.3d 1030, 1040 (D.C. Cir.
2008)). Plaintiffs have alleged no facts showing the decision makers who approved these earlier
decisions had such authority. Petitions approved in previous years were presumably evaluated by
an adjudicator at a USCIS service center, who would not have authority to bind the agency, and
their amended complaint does not identify any precedential decisions that allegedly conflict with
the reasoning on which USCIS relied to deny the “agency decisions.” FAC ¶ 140-141; see 8 C.F.R.
§ 103.3(c) (clarifying that only designated AAO decisions “are to serve as precedents in all
proceedings involving the same issue(s)”).
Moreover, even if Plaintiffs’ could somehow establish that USCIS had changed its
in failing to distinguish previous visa petition’s approval where the employer failed to submit the file to INS for its consideration), aff'd No. 99–5159, 1999 WL 825420 (D.C.Cir. Sept. 27, 1999).10 While Plaintiffs do identify some petitions that have been approved in the past, ECF 23-20, these appear to be intended as examples of a vaguely defined larger pattern. See Exhibit 2, ECF 23-2.
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interpretation of the standards for temporary need set forth in the regulations, any argument that
such a change in interpretation would require notice and comment rulemaking is clearly foreclosed
by the Supreme Court’s decision in Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199 (2015),
which held that a court cannot mandate an agency go through notice and comment procedures
before changing its interpretation of a regulation it is tasked with enforcing. Id. at 1205–1210
(abrogating the doctrine announced by D.C. Circuit in Paralyzed Veterans of America v. D.C.
Arena L.P., 117 F.3d 579 (D.C. Cir. 1997) and Alaska Professional Hunters Ass'n, Inc. v. F.A.A.,
177 F.3d 1030 (D.C. Cir. 1999)). The case Plaintiffs cite to suggest otherwise, Encino Motorcars
v. Navarro, 136 S.Ct. 2117, does not support their claim. FAC ¶ 141. In Encino Motorcars, the
Court found a rule (which had been promulgated through notice and comment rulemaking) was
not entitled to deference because DOL had not sufficiently explained why it decided to overrule
the position it took in a prior rule. Id. at 2125–26. The Court did not hold that DOL could not
apply the rule because it had not been subject to notice and comment rulemaking (it had). Encino
Motorcars therefore does not support Plaintiffs’ assertion that USCIS cannot change its
interpretation of a regulation without going through notice and comment rulemaking.
4. Plaintiffs do not identify the evidence USCIS allegedly ignored in adjudicating their petitions (Count I, III, IV, V)
Plaintiffs allege “Defendants’ denial of Plaintiffs’ and the Proposed Class’ H-2B petitions
are unsupported by substantial evidence in the record, and the denial therefore violates 5 U.S.C. §
706(2)(E).” FAC ¶ 146. In raising this allegation, Plaintiffs fail to recognize that § 706(2)(E) does
not apply to USCIS’s adjudication of nonimmigrant visa petitions. Section 706(2)(E) authorizes
a reviewing court to hold unlawful and set aside agency action “unsupported by substantial
evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record
of an agency hearing provided by statute,” and sections 556 and 557 are not applicable to USCIS’s
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adjudication of H-2B petitions, as they “need be applied only where the agency statute, in addition
to providing a hearing, prescribes explicitly that it be on the record.” See United States v.
Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757 (1972) (internal quotations and citations
omitted). Here, neither the INA nor its implementing regulations require USCIS to hold a hearing
on the record when adjudicating an employer’s petition to import nonimmigrant workers.
Accordingly, Plaintiff's claims under Section 706(2)(E) must be dismissed.
To the extent Plaintiffs intended to bring this claim under § 706(2)(A), they have failed to
plead any facts that plausibly show Plaintiffs or the putative class members have “submitted
significant evidence to USCIS that demonstrated that the need is a peakload or one-time occurrence
need.” Nor have they pled any facts that plausibly show “Defendants failed to consider this
substantial evidence demonstrating a peakload or one time occurrence need.” FAC ¶ 149.
Plaintiffs’ conclusory allegations, standing alone, are not sufficient to raise a claim for relief. See
Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”).
5. Any claims challenging USCIS’s action on H-2B Petitions that have not yet been filed or which are still pending before USCIS do not challenge a “final agency action” and must be dismissed
A review of Plaintiffs’ amended complaint and the exhibits attached thereto reveal that
Plaintiffs’ broadly framed requests for injunctive relief would affect USCIS’s adjudication of H-
2B petitions that have not yet been filed or are still pending before the agency—either because (1)
a USCIS service center has issued a Request for Evidence (“RFE”) and is awaiting the petitioner’s
response or has received the petitioner’s response and is in the process of formulating a final
decision, or (2) a USCIS service center denied the petition and the petitioner has sought an
administrative appeal before the USCIS AAO, and the AAO is still in the process of formulating
its decision. See, e.g., FAC ¶ 124 (defining putative class as including petitioners who, inter alia,
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“will file an I-129 application for H2B for Guam” and who “will receive a denial of such I-129
application based on a finding that the Petitioner is unable to demonstrate “temporary need”)
(emphasis added); FAC, Exhibit 20 (indicating some H-2B petitions filed by Plaintiffs are
undergoing an RFE or are currently pending on appeal before the AAO).11 Any claims related to
USCIS’s actions on these petitions are not properly before the Court, as there is no “final agency
action” subject to review.
Final agency actions are those actions that (1) mark the consummation of the agency’s
decision making process, i.e., are not merely tentative or interlocutory in nature; and (2) determine
rights or obligations or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154,
177–78 (1997). USCIS’s issuance of an “RFE” does not mark the consummation of USCIS’s
decision-making process. See True Capital Mgmt., LLC v. U.S. Dep’t of Homeland Sec., No. 13-
261 JSC, 2013 WL 3157904, at *1 (N.D. Cal. June 20, 2013) (“The . . . Request for Additional
Evidence renders [the agency’s] decision non-final and therefore not subject to review under the
APA.”). And courts have held that where a visa petition is pending before the AAO, agency action
is not “final” for purposes of judicial review. E.g., Church v. United States, Case No. 12-CV-
3990, 2013 WL 12064271, at *1 (C.D. Cal. May 15, 2013); Bhasin v. United States Dep't of
Homeland Sec., 413 Fed. Appx. 983 (9th Cir. 2011); Dridi v. Chertoff, 412 F. Supp. 2d 465, 468
(E.D. Pa. 2005). Accordingly, to the extent Plaintiffs’ claims challenge USCIS’s actions on
petitions that are currently pending before USCIS service centers or the AAO, or which have not
yet been filed, such claims must be dismissed because they do not seek review of “final agency
action,” as required by 5 U.S.C. §§ 702, 704.
11 Plaintiffs’ amended complaint further indicates that some Plaintiffs withdrew or abandoned at least one H-2B petition after USCIS issued an RFE. See FAC, Exhibit 20 (indicating Ace Builders, Guam Tropical Dive Station, Guam XRay, and Landscape Management all either failed to respond to an RFE or withdrew a petition after the issuance of an RFE). All claims relating such petitions should be dismissed as moot.
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Plaintiffs Fail To State A Claim for Equitable Estoppel
Plaintiffs allege Defendants have granted H-2B petitions based on the same set of operative
facts and without a change in the law and contend that Defendants should therefore be estopped
from denying “an identical petition based on the same set of adjudicative facts and without a
subsequent change in the law or regulations regarding what constitutes a peakload or one-time
occurrence need.” FAC ¶ 162. This claim must be dismissed because, as explained above,
Plaintiffs cannot reasonably rely on prior approvals of H-2B petitions as a guarantee that USCIS
will approve petitions for the same position in the future. But even more fundamentally, Plaintiffs
fail to allege any facts showing an essential element to any claim for estoppel against the
government: affirmative misconduct. See, e.g., Jaa v. I.N.S., 779 F.2d 569, 572 (9th Cir. 1986)
(rejecting claim for estoppel where plaintiff did not show affirmative misconduct on the part of
the government); Cf. Office of Pers. Management v. Richmond, 496 U.S. 414, 419, 110 S. Ct. 2465,
2469, 110 L. Ed. 2d 387 (1990) (“equitable estoppel will not lie against the Government as against
private litigants”) (citation omitted); Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir.
2007) (“we have reiterated, with regularity bordering on the echolalic, that estoppel rarely will be
invoked against the federal government.”). Accordingly, because Plaintiffs do not, and cannot
allege any affirmative misconduct by USCIS, this claim must be dismissed.
Attorney General Loretta Lynch Is Not Properly Named As a Defendant
Finally, Plaintiffs improperly name Loretta Lynch, the Attorney General of the United
States, as a defendant in this action. The Homeland Security Act of 2002 abolished the INS (a
former component agency of the Department of Justice) and transferred its functions to DHS. See
Pub. L. No. 107-269, 116 Stat. 2135 (Nov. 25, 2002). USCIS, a component of DHS, is the agency
tasked with adjudicating immigration benefits. The Attorney General does not play any role in the
adjudication of H-2B petitions and is therefore not properly named as a defendant in this action.
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See, e.g., Hong Wang v. Chertoff, 550 F. Supp. 2d 1253, 1258 (W.D. Wash. 2008).
CONCLUSION
For the foregoing reasons, the Court should dismiss Plaintiffs’ Amended Complaint in its
entirety under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Respectfully submitted this 6th day of January, 2016.
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
WILLIAM C. PEACHEY Director
GLENN M. GIRDHARRY Assistant Director
By: /s/ Heather Sokolower HEATHER SOKOLOWER Trial Attorney
Attorneys for Defendants
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