Pedrozo v. Clinton
| Decision Date | 23 April 2009 |
| Docket Number | Civil Action No. H-08-3450. |
| Citation | 610 F.Supp.2d 730 |
| Parties | Jennifer PEDROZO and Coane & Associates, Plaintiffs, v. Hillary CLINTON, Janet Napolitano, et al., Respondents. |
| Court | U.S. District Court — Southern District of Texas |
Bruce A. Coane, Ajay Choudhary, Coane & Associates, Houston, TX, for Plaintiffs.
Geoffrey Forney, U.S. Department of Justice, Washington, DC, for Respondents.
Pending before the Court is Defendants' Memorandum in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction (Document No. 7). Having considered the motion, submissions, and applicable law, the Court determines the motion should be granted in part and denied in part.
Plaintiffs Jennifer Pedrozo ("Pedrozo") and Coane and Associates ("Coane") (collectively "Plaintiffs") filed this lawsuit against Defendants United States Department of State through its Secretary of State, Hillary Clinton; Janet Napolitano, Secretary, United States Department of Homeland Security; Michael Aytes, Acting Director, United States Citizenship and Immigration Services ("USCIS"); and Richard Dale Haynes, Consul General, Embassy of the United States in Manila, Philippines (collectively "Defendants"). Plaintiffs seek to compel action on a previously filed H-1B Petition for non-immigrant, Alien Worker status.
Pedrozo is an alien national currently residing in Manila, Philippines. Coane is a law firm with offices in Texas and Florida. Prior to October 2007, Coane, as petitioner, and Pedrozo as beneficiary, filed a Form I-129 petition with USCIS seeking to qualify Pedrozo as an H-1B non-immigrant temporary worker pursuant to the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101 et. seq. (2006).1 As stated in its H-1B petition, Coane intended to hire Pedrozo as a "Human Resources Advisor."
On October 17, 2007, USCIS approved Coane's H-1B petition and on January 3, 2008, Pedrozo filed a visa application with the United States Embassy in Manila ("U.S. Embassy") seeking an H-1B Visa.2 That same day; Pedrozo appeared at the U.S. Embassy for an interview before an Embassy Consular Officer. Based on the interview, the Consular Officer denied Pedrozo's visa application pursuant to INA § 221(g), indicating that: (1) the position of "Human Resources Advisor" did not qualify as a specialty occupation as defined by 8 U.S.C. § 1184(i)(1); and (2) Pedrozo's credentials did not meet the specifications for the "Human Resources Advisor" position stated in Coane's petition.3 As a result of the factual discrepancies in Pedrozo's interview statements as compared to Coane's H-1B petition filed with USCIS, the Consular Officer returned the petition to USCIS for reconsideration.4
On November 20, 2008, after eleven months of attempting to contact the U.S. Embassy and USCIS regarding the status of the previously approved H-1B petition, Plaintiffs filed the pending lawsuit seeking to compel the U.S. Embassy to complete the processing of Pedrozo's visa application and also to compel USCIS to complete the processing of Coane's H-1B petition.
On January 26, 2009, USCIS issued a notice of intent to revoke Coane's previously approved H-1B petition, citing the factual discrepancies uncovered by the Consular Officer.5 The notice of intent to revoke provided Coane with instructions on how to cure the discrepancies and requested additional documentation supporting the statements contained in the original H-1B petition. Additionally, the letter of intent to revoke gave Coane until February 28, 2009 to comply with the request.
On February 2, 2009, shortly after UCIS issued the notice of intent to revoke, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendants assert that Plaintiffs' complaint is now moot and that the Court lacks subject matter jurisdiction to review the Consular Officer's decision to deny Pedrozo's visa application. On March 20, 2009, Plaintiffs filed a response to Defendants' motion to dismiss, arguing that the agency has unreasonably delayed in rendering a final decision on the H-1B petition and that the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 555(b), 706 (2006), provides the Court authority to compel action where an agency has caused unreasonable delay.
On March 25, 2009, Defendants replied, arguing that Plaintiffs are the sole cause of any delay because they have failed to respond to the USCIS's notice of intent to revoke requesting additional documentation to support the H-1B petition. Therefore, the Court must determine whether: (1) Plaintiffs' claims are now moot; (2) the Court has subject matter jurisdiction under the APA; and (3) if the Court has subject matter jurisdiction, whether UCIS has caused any unreasonable delay.
Under Federal Rule of Civil Procedure 12(b)(1), a party may challenge the subject matter jurisdiction of the district court to hear a case. See FED. R. CIV. P. 12(b)(1). In ruling on a motion to dismiss for lack of subject matter jurisdiction, courts may evaluate: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the courts resolution of disputed facts. See Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir.2001) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). A court must accept all factual allegations in the plaintiff's complaint as true. Id.
The burden of establishing subject matter jurisdiction in federal court is on the party seeking to invoke it. Hartford Ins. Group v. Lou-Con Inc., 293 F.3d 908, 910 (5th Cir.2002). Accordingly, Plaintiffs must prove that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980).
Plaintiffs claim that: (1) the Consular Officer's decision to deny Pedrozo's visa application at the time of her interview was arbitrary and capricious; (2) the U.S. Embassy has not yet returned the approved H-1B petition to USCIS for further processing; and (3) USCIS has unreasonably delayed in rendering a final decision on the status of Coane's H-1B petition filed on Pedrozo's behalf. Plaintiffs ask the Court to: (1) compel the U.S. Embassy to complete the processing of Pedrozo's visa application according to the previously approved H-1B petition; and (2) compel USCIS to complete the processing of Coane's H-1B petition. Plaintiffs assert they are entitled to such relief pursuant to the Mandamus Act, 28 U.S.C. § 1361 (2006), Declaratory Judgment Act, 28 U.S.C. § 2201 (2006), and the APA.
On the other hand, Defendants argue the Court lacks subject matter jurisdiction and that, nevertheless, Plaintiffs' claims are now moot. In particular, Defendants argue that the U.S. Embassy already has returned the previously approved H-1B petition to USCIS with the recommendation to reconsider the petition's status. Additionally, Defendants argue that the U.S. Embassy already has denied Pedrozo's visa application and, thus, there is nothing left to decide. Moreover, Defendants argue the Court lacks subject matter jurisdiction to review a Consular Officer's decision and to compel USCIS action on matters that are within USCIS's discretion. The parties' arguments present a variety of questions, which the Court will address in turn.
According to Plaintiffs, after the Consular Officer denied Padrozo's visa application, the Officer was required to return the H-1B petition to USCIS for reconsideration. See 9 FOREIGN AFFAIRS MANUAL § 41.53 n. 2.3. At the time they filed their suit, Plaintiffs claimed eleven months had passed and the U.S. Embassy had not yet returned the approved H-1B petition to USCIS. However, Defendants have attached the USCIS's notice of intent to revoke as an exhibit to their motion to dismiss. The notice indicates that USCIS has been apprised of new facts that indicate inaccuracies in the H-1B petition, which apparently were brought to UCIS's attention following the Consular Officer's interview. The purpose of returning the H-1B petition is to notify the approving USCIS office that there may not be a bona fide request for non-immigrant status. See 8 U.S.C. § 1201(g); 9 FOREIGN AFFAIRS MANUAL § 41.53 n. 2.3. Because USCIS has been apprised of the Consular Officer's findings, as evidenced in USCIS's notice of intent to revoke, it is clear that the purpose of returning the petition has been met.6 Thus, to the extent Plaintiffs seek to compel the U.S. Embassy to return the petition to USCIS for reconsideration, that issue is now moot. See S. Plains Switching Ltd. v. Surface Transp. Bd., 271 Fed.Appx. 465, 466 (5th Cir.2008) (); see also Bayou Liberty Ass'n, Inc. v. U.S. Army Corps of Eng'rs, 217 F.3d 393, 396 (5th Cir.2000) (citing Harris v. City of Houston, 151 F.3d 186, 189 (5th Cir.1998)) ("[T]o qualify as a case for federal court adjudication, a case or controversy must exist at all stages of the litigation, not just at the time the suit was filed.").
Additionally, Plaintiffs seek to compel the U.S. Embassy to complete the processing of Pedrozo's visa application. However, the Consular Officer already has denied the application. Thus, to the extent that Plaintiffs seek to compel the U.S. Embassy to complete the processing of Pedrozo's visa application, that issue also is now moot. Id. On the other hand, Plaintiffs claim that the Consular Officer's denial was arbitrary and capricious and that the Court should compel the U.S. Embassy to render a decision other than a denial. Such an argument raises the question of whether the Court has subject matter jurisdiction to entertain such a claim, to which the Court now turns.
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