Hsiao v. Stewart
| Decision Date | 23 March 2021 |
| Docket Number | Civil No. 18-00502 JAO-KJM |
| Citation | 527 F.Supp.3d 1237 |
| Parties | Ya-Wen HSIAO, Plaintiff, v. Al STEWART, Acting Secretary of Labor, Defendant. |
| Court | U.S. District Court — District of Hawaii |
Ya-Wen Hsiao, Honolulu, HI, Pro Se.
Harry Yee, Office of the United States Attorney, Honolulu, HI, James C. Graulich, Samuel P. Go, United States Department of Justice, Washington, DC, for Defendant Martin Walsh.
ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
This case concerns the Department of Labor's ("DOL") denial of an application for permanent employment certification, which pro se Plaintiff Ya-Wen Hsiao ("Plaintiff") challenges under the Administrative Procedure Act ("APA"), 5 U.S.C. § 704. Plaintiff presently requests a preliminary injunction ordering Defendant Al Stewart ("Defendant") to administratively reopen her case and directing the Board of Alien Labor Certification Appeals ("BALCA") to immediately certify that University of Hawaii on behalf of Ya-Wen Hsiao , 2012-PER-02131, is open until this Court issues its final order. For the following reasons, the Court GRANTS Plaintiff's Motion for Preliminary Injunction ("Motion").
Plaintiff is an "alien" who lives in Honolulu, Hawai'i. ECF No. 35 at 6 & ¶ 1. On January 13, 2011, her employer, the University of Hawai'i John A. Burns School of Medicine ("UH"), filed an Application for Permanent Employment Certification ("labor certification application") on her behalf with the Department of Labor ("DOL"), for an Educational Technology Specialist position. Id. ¶ 2.
On March 23, 2012, the Certifying Officer ("CO") denied the application on the grounds that UH (1) provided inadequate proof that the job advertisement was posted on a website and (2) presented evidence showing the advertisement offered less favorable terms and conditions of employment to non-foreigners than to Plaintiff. Id. ¶ 9. UH requested reconsideration, which was denied on April 30, 2012. Id. ¶¶ 10, 13.
The CO then forwarded the case and appeal file to BALCA. Id. ¶ 16. In its briefing to BALCA, UH argued that the second ground for denial undercut the first ground for denial and that the appeal file contained evidence to prove that it posted the job advertisement on a website. Id. ¶ 20. UH further argued that as a bona fide recruitment, the advertisement did not offer terms more favorable to Plaintiff. Id. ¶ 21.
On November 16, 2016, a three-judge panel from BALCA affirmed the denial of the application based on the first ground and consequently declined to address the second ground. Id. ¶¶ 22–23. UH requested en banc review, which BALCA denied on March 29, 2017. Id. ¶¶ 24, 27.
Plaintiff filed a Freedom of Information Act ("FOIA") request on May 1, 2017, seeking information related to the en banc process. Id. ¶ 30. Administrative Law Judge ("ALJ") Paul Almanza responded, explaining that ALJs on the panel had previously used a vote sheet to record a "yes" or "no" vote; the order denying en banc review did not list the judges who reviewed the petition; and en banc voting procedures are not published. Id. ¶ 31.
The next month, UH filed a Pro Se Motion for Relief from Judgment and Order with the Chief ALJ and BALCA Chair, arguing that en banc procedures were not published and that it was not notified of changes to the en banc procedures. Id. ¶¶ 32–33. The Chief ALJ denied the Motion and barred UH from presenting further issues. Id. ¶¶ 44, 51.
On November 6, 2018, Plaintiff received notification from UH that her employment would terminate on November 1, 2019, the date her visa expired, because it could not renew her H1-B visa nor proceed with the labor certification. Id. ¶ 54.
Plaintiff commenced this action on December 26, 2018. On March 4, 2019, Defendant filed a Motion to Dismiss for Lack of Jurisdiction. ECF No. 13. On June 7, 2019, the same day as the hearing on the Motion to Dismiss, Plaintiff filed a Motion for Temporary Injunction. ECF Nos. 28–29. The Court deferred ruling on the Motion for Temporary Injunction until it ruled on the Motion to Dismiss. ECF No. 30.
On June 28, 2019, the Court granted the Motion to Dismiss, dismissing Plaintiff's claims with leave to amend. ECF No. 31.
On July 19, 2019, Plaintiff filed another Motion for Temporary Injunction and a First Amended Complaint ("FAC"). ECF Nos. 34–35. The FAC asserts the following claims: Count 1 – the denial of the labor certification violated the APA and deprived Plaintiff of applying for permanent residence, which caused her to face the imminent threat of losing her employment and becoming out-of-status; Count 2 – the en banc denial was in bad faith because the procedures were arbitrary, capricious and failed to comply with applicable law; Count 3 – Plaintiff's Fifth Amendment due process rights were violated because notice of substantive changes to en banc procedures was not provided, the case was adjudicated by a biased tribunal, and the facts were falsified;1 Count 4 – the Chief ALJ and BALCA Chair engaged in abusive behavior toward Plaintiff and UH by misrepresenting arguments in the Pro Se Motion for Relief from Order and Judgment and the order denying the Motion was arbitrary, capricious and an abuse of discretion; Count 5 – the injustices caused by DOL irreparably harmed Plaintiff; and Count 6 – the CO's second basis for denial is not supported by the regulations articulated by BALCA in other cases.
Defendant filed a Motion to Dismiss Amended Complaint and Opposition to Plaintiff's Motion for Temporary Injunction on August 5, 2019. ECF No. 41.
On September 23, 2019, the Court issued an Order Granting Defendant's Motion to Dismiss ("Dismissal Order"), concluding that Plaintiff lacked constitutional and prudential standing. ECF No. 51. Judgment entered the same day. ECF No. 52.
Plaintiff appealed. ECF No. 53. During the pendency of the appeal, Plaintiff requested emergency injunctive relief from the Ninth Circuit. The Ninth Circuit granted her request, ordering DOL to stay entry of its final judgment in BALCA case number 2012-PER-02131 so that the labor certification at issue remained pending until the issuance of the mandate for Plaintiff's appeal. ECF No. 60 at 1. On July 13, 2020, the Ninth Circuit issued a memorandum vacating the Dismissal Order and remanding the case. See Hsiao v. Scalia , 821 F. App'x 680, 683 (9th Cir. 2020) ; ECF No. 61 at 5. It determined that Plaintiff has Article III and prudential standing. Id.
Defendant filed a Partial Motion to Dismiss Amended Complaint on December 2, 2020. ECF No. 73. Shortly before the hearing on the Motion to Dismiss, Plaintiff filed the present Motion. ECF No. 84. The Court initially directed Defendant to file a memorandum addressing whether Plaintiff should receive the same injunctive relief granted by the Ninth Circuit and/or whether he would be agreeable to the same relief pending the resolution of this action. ECF No. 86. After reviewing Defendant's response, ECF No. 88, the Court scheduled a hearing. ECF No. 89. Plaintiff then filed a First Motion to Advance Motion for Preliminary Injunction Hearing, which the Court granted. ECF Nos. 92, 93.
On March 3, 2021, the Court issued an Order Granting Defendant's Partial Motion to Dismiss Amended Complaint, dismissing Plaintiff's Fifth Amendment Claim with leave to amend.2 ECF No. 94.
Defendant filed his Opposition to the present Motion on March 3, 2021. ECF No. 95. Plaintiff filed her Reply on March 8, 2021. ECF No. 97. The Court held a hearing on March 19, 2021. ECF No. 100. On March 22, 2021, Plaintiff filed a Second Amended Complaint. ECF No. 102.
Federal Rule of Civil Procedure ("FRCP") 65(a) allows courts to issue preliminary injunctions. "[The] purpose of a preliminary injunction ... is to preserve the status quo and the rights of the parties until a final judgment issues in the cause." Ramos v. Wolf , 975 F.3d 872, 887 (9th Cir. 2020) (alterations in original) (internal quotation marks and citation omitted).
To obtain preliminary injunctive relief, a plaintiff must establish: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in favor of the plaintiff, and (4) an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citations omitted). Where, as here, the government is a party, the last two factors merge. See Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014).
The Ninth Circuit also employs a "sliding scale" approach to preliminary injunctions, under which "the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir. 2011). Under this "serious questions" standard, the preliminary injunction factors are weighed "on a sliding scale, such that where there are only ‘serious questions going to the merits’—that is, less than a ‘likelihood of success’ on the merits—a preliminary injunction may still issue so long as ‘the balance of hardships tips sharply in the plaintiff's favor’ and the other two factors are satisfied." Ramos , 975 F.3d at 887–88 (some internal quotation marks and citation omitted).
Independently, the APA authorizes the reviewing court, "[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury ... [to] issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings." 5 U.S.C. § 705 ; see also Bakersfield City Sch. Dist. v. Boyer , 610 F.2d 621, 624 (9th Cir. 1979) .
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