3V Sigma USA, Inc. v. Richardson
| Decision Date | 03 March 2021 |
| Docket Number | No. 2:20-cv-0807-DCN,2:20-cv-0807-DCN |
| Parties | 3V SIGMA USA, INC., Plaintiff, v. GREGORY A. RICHARDSON, Director of the Texas Service Center, United States Citizenship and Immigration Services; KEN CUCCINELLI, Director of the United States Citizenship and Immigration Services; CHAD WOLF, Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; and UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Defendants. |
| Court | U.S. District Court — District of South Carolina |
This matter is before the court on plaintiff 3V Sigma USA, Inc.'s ("3V") motion for summary judgment, ECF No. 16, and defendants Gregory A. Richardson, Ken Cuccinelli, Chad Wolf, United States Citizenship and Immigration Services ("USCIS"), and United States Department of Homeland Security's (collectively, "defendants") motion for summary judgment, ECF No. 18. For the reasons set forth below, the court denies 3V's motion and grants defendants' motion.
3V is a chemical manufacturing corporation located in Georgetown, South Carolina that produces "specialty chemicals" for the personal care industry, "as well as chemicals used for paper and pulp, plastics, textiles, home care, coatings, polymerization additives, and concrete additives." ECF No. 1, Compl. ¶ 2. In early 2015, 3V engaged a consulting firm to implement a company-wide overhaul of its Enterprise Resource Planning software system ("ERP"), which required customizing an off-the-shelf computer program called JD Enterprise One ("JDE One") to match the ERP to the specific needs of 3V. Disappointed with the progress of the first consulting firm it engaged after a year of work, 3V determined that it "needed to look for global expertise," which it apparently found in a company called UBC Corporation ("UBC"). ECF No. 16 at 2. UBC and its employee Mykhailo Soltys ("Soltys"), a Ukrainian citizen, began working on 3V's ERP overhaul project in July 2016. "[S]o satisfied" with his work at UBC, 3V hired Soltys as a full-time employee in February 2017. Id. 3V supervises and directs Soltys's work in Ukraine from its manufacturing plant in Georgetown.
On September 12, 2019, 3V filed a petition to obtain an employment-based visa for Soltys, commonly referred to as an "L-1B visa." ECF No. 15, Admin. Record ("A.R.") 824-835. The Immigration and Naturalization Act ("INA") permits a multinational company to obtain an L-1B visa on behalf of a noncitizen employee who possesses "specialized knowledge" and whose work in the United States will require the use of that "specialized knowledge." 8 U.S.C.A. § 1101(a)(15)(L). In its petition, 3V described Soltys as "the lead ERP Manager" and stated that, if admitted, he "will have the primary responsibility to review, analyze, and create or modify [the] code to support" 3V's operations. A.R. 833. On September 19, 2019, defendant Gregory A. Richardson ("Richardson"), the Director of USCIS's Texas Service Center, issued a "Request for Evidence" ("RFE") informing 3V that its petition was deficient and that USCIS"require[d] additional evidence" before it could grant Soltys an L-1B visa. A.R. 793-802. Relevant here, the RFE noted that 3V submitted insufficient evidence to demonstrate that Soltys possessed the requisite "specialized knowledge" and that his duties in the United States would require the use of "specialized knowledge." A.R. 799-800. The RFE also listed various examples of evidence that 3V could submit to satisfy the "specialized knowledge" requirement. A.R. 800 ( ).
On December 10, 2019, 3V responded to the RFE with over 700 pages of documents. A.R. 28-791. These documents include: a cover letter authored by 3V's counsel, A.R. 28-41; copies of caselaw and treatises of Delaware corporate law, A.R. 42-53; various corporate financial documents, many of which are printed in Italian, A.R. 54-224; 3V's corporate tax returns, A.R. 225-483; 3V's business purchase orders, A.R. 484-610; copies of international money transfers from 3V to Soltys, A.R. 611-633; a letter to USCIS from 3V's Chief Financial Officer ("CFO"), Kathryn Dismukes, A.R. 634-636; a list of 3V's American employees by name and position title, A.R. 637-640; a job description of what 3V contends is the closest related job to the proposed job Soltys would perform, A.R. 641-649; a police report regarding an incident of larceny against 3V in 2019, A.R. 650-666; documents cataloging the time and costs 3V spent on its first information technology consultant, A.R. 667-767; and an opinion letter from Larry Stokes, 3V's "expert in JD Edwards and customizations of JD Edwards," A.R. 768-791.
On December 26, 2019, Richardson issued a written denial of 3V's petition. A.R. 2-8. The denial stated that the supplemental evidence "fail[ed] to address the issues pointed out in the RFE." A.R. 4. The denial letter listed two "independent andalternative" grounds for denial: (1) 3V failed to demonstrate that Soltys was "employed abroad in a position that . . . involved specialized knowledge" and (2) 3V failed to demonstrate that Soltys is "qualified to perform the intended services in the United States." A.R. 2, 5. The denial letter noted that while 3V submitted a large volume of documents in response to the RFE, the only evidence of Soltys's specialized knowledge were statements from 3V employees, uncorroborated by "documentary evidence." A.R. 7. The denial letter concluded, "Merely going on the record without supporting documentation is insufficient to establish your claim." A.R. 7. The denial letter further advised 3V that it may appeal the denial to the Administrative Appeals Office. A.R. 5. 3V declined to do so.
Instead, on February 21, 2020, 3V filed this action against defendants, seeking judicial review of USCIS's denial of its petition under the Administrative Procedures Act, 5 U.S.C. §§ 701, et seq. ("APA"). ECF No. 1, Compl. On December 11, 2020, 3V and defendants filed cross-motions for summary judgment. ECF Nos. 16, 18. On January 15, 2021, 3V and defendants filed responses, ECF Nos. 22, 23, and on January 22, 2021, defendants filed a reply, ECF No. 25. 3V did not file a reply, and the time to do so has now expired. The court held a hearing on the motions on February 25, 2021. As such, they are now ripe for the court's review.
The Administrative Procedure Act ("APA") authorizes judicial review of "final agency action[s] for which there is no other adequate remedy[.]" 5 U.S.C. § 704. A district court must set aside an agency decision that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. at § 706(2)(A). To determinewhether an agency action is arbitrary or capricious, the court examines whether the agency considered relevant factors and whether the decision is the result of a clear error of agency judgment. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009) (citing Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). The court's review of a final agency decision for clear error of judgment is limited to asking whether the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action," and determining whether there exists a "rational connection between the facts found and the choice made." Armah-El-Aziz v. Zanotti, 2015 WL 4394576, at *6 (E.D. Va. July 16, 2015) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, (1983)). A court conducts such a review "based on the full administrative record" that was before the agency at the time of the decision. Citizens To Preserve Overton Park, 401 U.S. at 416.
Ultimately, the court's review of an agency decision is "a narrow one." Id. Courts unanimously recognize that "[r]eview under this standard is highly deferential, with a presumption in favor of finding the agency action valid." Ohio Valley, 556 F.3d at 192 (citing Natural Res. Def. Council, Inc. v. EPA, 16 F.3d 1395, 1400 (4th Cir. 1993)). Because "[a]gencies . . . have expertise and experience in administering their statutes that no court can properly ignore," Judulang v. Holder, 565 U.S. 42, 53 (2011), "[t]he court is not empowered to substitute its judgment for that of the agency," Ohio Valley, 556 F.3d at 192. Though narrow, a court's review should be nonetheless "searching and careful." Citizens To Preserve Overton Park, 401 U.S. at 416.
Reviewing courts are not obliged to stand aside and rubberstamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute. Such review is always properly within the judicial province, andcourts would abdicate their responsibility if they did not fully review such administrative decisions.
NLRB v. Brown, 380 U.S. 278, 291 (1965).
When cross motions for summary judgment are filed, the court "must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation marks omitted). Generally, summary judgment is proper where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). This familiar standard, however, "does not apply in cases where a district court is reviewing a final agency action under the APA 'because of the limited role of a court in reviewing the administrative record.'" Spelman v. McHugh, 65 F. Supp. 3d 40, 44 (D.D.C. 2014) (quoting Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006)). In resolving a ...
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