Ching Yee Wong v. Napolitano, No. CV-08-937-ST.
| Decision Date | 05 August 2009 |
| Docket Number | No. CV-09-132-ST.,No. CV-08-937-ST. |
| Citation | 654 F.Supp.2d 1184 |
| Parties | CHING YEE WONG, an individual; and Chi Kwong Lo, an individual, Plaintiffs, v. Janet NAPOLITANO, et al., Defendants. Asian/Pacific American Consortium on Substance Abuse, a non-profit company, Plaintiff, v. Janet Napolitano, et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
Baolin Chen, Chen & Mu, Portland, OR, for Plaintiffs.
Jeffrey S. Robins, Department of Justice, Civil Division, Washington, DC, Sean E. Martin, U.S. Attorney's Office, District of Oregon, Portland, OR, for Defendants.
INTRODUCTION
Plaintiffs, Ching Ye Wong and Chi Kwong Lo, filed this action on August 9, 2008, seeking declaratory and mandamus relief to require defendants, Janet Napolitano, Secretary of the Department of Homeland Security ("DHS"), Michael Aytes, Acting Director of the United States Citizenship and Immigration Services ("USCIS"), and F. Gerard Heinauer, USCIS Nebraska Service Center Director,1 to grant their I-485 applications for adjustment of status to "permanent resident status" pursuant to § 245(a) of the Immigration and Nationality Act ("INA"), as amended (codified at 8 USC § 1255). They allege this court has jurisdiction over their claims pursuant to 28 USC § 1331, the Administrative Procedures Act, 5 USC § 706, and the Declaratory Judgment Act, 28 USC § 2201(a).
Plaintiff, the Asian/Pacific American Consortium on Substance Abuse ("APACSA"), filed a separate action on January 1, 2009, against the same defendants also seeking declaratory and mandamus relief. APACSA seeks an order declaring USCIS's denial of APACSA's H-1B visa petition, made on behalf of Wong in April 2004, to be arbitrary, capricious, and unlawful. It alleges the same basis for jurisdiction. The two cases were consolidated due to common issues of law and fact.
Pursuant to FRCP 12(b)(1), defendants move to dismiss APACSA's Complaint based on lack of subject matter jurisdiction because APACSA lacks standing. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c). For the reasons that follow, USCIS's motion is granted, and APACSA's claim is dismissed with prejudice.
Motions to dismiss under FRCP 12(b)(1) for lack of subject matter jurisdiction generally take two forms. First, a defendant may facially attack the allegations in the complaint as insufficient to establish subject matter jurisdiction. Thornhill Publ'g Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979). "In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true." Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995).
Second, a party may go beyond the allegations in the complaint and attack the factual basis for subject matter jurisdiction. Thornhill, 594 F.2d at 733. In that event, no presumptive truthfulness attaches to the factual allegations in the complaint. Id. In order to resolve disputed jurisdictional facts under FRCP 12(b)(1), a court has wide discretion to allow additional evidence. Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir.1983). A court's reference to evidence outside the pleadings does not convert the motion to a FRCP 56 summary judgment motion. Id. However, a court is required to convert a FRCP 12(b)(1) motion to dismiss into a FRCP 12(b)(6) motion or FRCP 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983).
The allegations in APACSA's Complaint are accepted as true for purposes of this motion. In addition, relevant allegations from Wong's Complaint are included where appropriate to provide background details, but are not considered in addressing the sufficiency of the allegations in APACSA's Complaint to establish subject matter jurisdiction.
On February 7, 2002, USCIS granted Wong a change of status from an H-4 visa to an H-1B visa, effective from February 7, 2002, through January 14, 2005, to work as a graphic designer for a company called UNIPAK Designs, Inc.
On or about September 12, 2002, APACSA filed an H-1B extension petition on behalf of Wong with USCIS so that she could work for APACSA as a graphic designer. On March 12, 2003, USCIS issued a denial notice for APACSA's petition because it determined that APACSA's position of graphic designer was not a "specialty occupation" as required under the INA. See INA §§ 101(a)(15)(H), 214(i)(1), codified at 8 USC §§ 1101(a)(15)(H), 1184(i)(1). On April 15, 2003, APACSA timely filed an appeal of USCIS's denial decision with the Administrative Appeals Office ("AAO"). On or about April 28, 2004, the AAO dismissed APACSA's H-1B appeal, affirming USCIS's denial of the visa.
At some point, Wong left APACSA and began working for Olson Institutional Pharmacy Services, dba RX Direct. On May 12, 2004, RX Direct filed another H-1B extension on behalf of Wong for the position of graphic designer. In its petition, RX Direct disclosed the APACSA petition as still pending. On July 12, 2004, USCIS issued an official approval notice to RX Direct, granting its H-1B extension petition on behalf of Wong, effective through May 20, 2007. RX Direct filed a subsequent extension petition for Wong for the same position on December 4, 2006, which UCSIS again granted on May 21, 2007, effective through May 20, 2010.
On July 2, 2007, Wong and her husband, Lo, filed I-485 applications for adjustment of status to permanent resident. USCIS denied their applications on June 25, 2008. Wong's denial notice asserted that she was ineligible for adjustment of status because she had "accrued approximately a year and a half of unauthorized employment by working for APACSA." USCIS denied Lo's application because, as Wong's dependant, he was not entitled to permanent resident status after Wong's application was denied.
Wong and Lo filed their lawsuit less than two months later. Prior to the denial of her I-485 application, Wong, APACSA, and Wong's attorney were unaware that the AAO had denied APACSA's appeal. At the time they filed this case, USCIS's online case status system still listed that application as pending.
APACSA filed its claim because USCIS's decision to deny Wong's and Lo's I-485 applications was predicated, in part, on Wong continuing to work for APACSA after USCIS had denied its H1-B petition. Wong and APACSA believe that USCIS's decision with respect to the H1-B petition was erroneous and seek to compel USCIS to reverse its decision denying Wong's and Lo's I-485 applications.
Defendants argue that the merits of this argument aside, APACSA lacks standing to challenge the March 2003 denial of its H-1B petition because: (1) it has failed to allege an injury-in-fact, a necessary element for constitutional standing; (2) whatever injury it may have suffered is not redressable by this court; and (3) its corporate status was dissolved at the time it brought this suit. Because the court agrees with the first two arguments, it need not address the third.
Standing under Article III of the Constitution has three elements:
First, the plaintiff must have suffered an "injury in fact" an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) "actual or imminent, not `conjectural' or `hypothetical,'" . . . . Second, there must be a causal connection between the injury and conduct complained of-the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court." . . . Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Colwell v. Dep't of Health and Human Servs., 558 F.3d 1112, 1121-22 (9th Cir.2009), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations omitted).
" " Wilbur v. Locke, 423 F.3d 1101, 1107 (9th Cir.2005), cert. denied, 546 U.S. 1173, 126 S.Ct. 1338, 164 L.Ed.2d 53 (2006), quoting Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir.2005).
Defendants contest APACSA's challenge because the Complaint fails to allege that it has suffered or will suffer any injury as a result of USCIS's denial of its H-1B application on Wong's behalf. Wong no longer works for APACSA, and APACSA does not allege that it would like to employ Wong in the future or that Wong would like to work for APACSA but cannot due to USCIS's actions. Nor does APACSA allege that USCIS's action has affected its ability to find and hire workers to complete graphics design work or has caused it to lose any workers. APACSA does not deny this deficiency and points to no allegation stating an injury or from which an injury may be inferred.
Instead, APACSA first argues that employers who are denied H-1B visas routinely challenge USCIS's decisions in federal courts without standing becoming an issue, citing a long list of cases as examples. This argument fails. Simply because some cases do not address standing in the context of a challenge by an employer to the denial of a H-1B visa does not mean that standing can never be an issue in such a case. Standing is "an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Although it may not be raised as an issue in every case, it is an absolute and ever-present prerequisite...
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