Rcm Technologies v. U.S. Dept. of Homeland Sec., Civil Action No. 09-0650 (JDB).

Decision Date11 May 2009
Docket NumberCivil Action No. 09-0650 (JDB).
Citation614 F.Supp.2d 39
PartiesRCM TECHNOLOGIES, INC., et al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
CourtU.S. District Court — District of Columbia

JC Miller, Thompson, Hine & Flory, Washington, DC, for Plaintiffs.

Geoffrey Forney, U.S. Department of Justice, Washington, DC, for Defendants.


JOHN D. BATES, District Judge.

Before the Court is the motion for preliminary injunction filed by RCM Technologies, Inc., Cambridge Systems, Inc., and Global Recruitment Connections, LLC (collectively, "plaintiffs"). They seek to enjoin the U.S. Citizenship and Immigration Services ("CIS" or "defendants"), an agency within the Department of Homeland Security, from applying a new "policy" that allegedly requires foreign occupational and physical therapists to have master's degrees in order to obtain H-1B visas. Because plaintiffs challenge the CIS "policy," rather than challenging a denial of a specific visa application, they are not likely to succeed on the merits of their claims. Likewise, plaintiffs cannot succeed on the merits because the challenged "policy," even as described in plaintiffs' declarations, is not "binding," and hence does not constitute "final agency action" reviewable under the Administrative Procedure Act. For the reasons explained below, then, plaintiffs' motion will be denied.


Plaintiffs are in the business of recruiting and training foreign physical and occupational therapists, sponsoring them for H-1B visas, and then placing them with U.S. clients. See Compl. ¶ 18. H-1B visas are available for qualified foreign nationals working in "specialty occupations." Id. ¶ 17; see also 8 U.S.C. § 1184(i). A cap applies to H-1B visas—only 65,000 are permitted in any fiscal year, which begins on October 1. Visa applications may be submitted six months before the fiscal year begins. On April 1, 2009, plaintiffs filed over 100 visa applications for foreign therapists for fiscal year 2010, which begins October 1, 2009. See id. ¶¶ 41, 43, 45.

In January 2009, RCM and Global Recruiting began to receive denials of previously-filed H-1B visa petitions because the therapists on whose behalf the petitions had been filed lacked master's degrees. See id. ¶¶ 36-37. According to plaintiffs, these denials are a result of a new CIS policy that is inconsistent with applicable statutes and regulations and that was never properly promulgated. Plaintiffs have submitted a declaration from Donald Freiberg, an immigration attorney in California, who reports that at a public meeting on February 25, 2009, representatives from CIS's California office "represented that they received clearance from headquarters to require master's degree[s] for occupational and physical therapy positions for which new H-1B classification was sought." See Pls. Rep. Ex. A at ¶ 5.

Plaintiffs filed suit in this Court on April 8, 2009 and filed a motion for a preliminary injunction the same day. They seek to enjoin CIS's further use of this alleged policy of requiring master's degrees in adjudicating H-1B visas for physical and occupational therapists. The motion is fully briefed and the Court held a motions hearing on May 4, 2009.


A preliminary injunction is an extraordinary and drastic remedy, one that should be granted only when the moving party, by a clear showing, carries the burden of persuasion. See Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997); see also Munaf v. Geren, ___ U.S. ___, 128 S.Ct. 2207, 2219, 171 L.Ed.2d 1 (2008). With that in mind, the standard for a preliminary injunction is well established. To prevail, the moving party must demonstrate (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable harm without injunctive relief, (3) that an injunction would not substantially harm other interested parties, and (4) that issuance of the injunction is in the public interest. Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir. 2004); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C.Cir.1998).

A substantial likelihood of success on the merits is vital. See Serono Labs., 158 F.3d at 1326; Hi-Tech Pharm. Co., Inc. v. FDA, 587 F.Supp.2d 1, 7 (D.D.C.2008). "Without any probability of prevailing on the merits, the Plaintiffs' purported injuries, no matter how compelling, do not justify preliminary injunctive relief." Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C.1999). Despite the importance of demonstrating a substantial likelihood of success on the merits, the four factors "are not considered in isolation from one another, and no one factor is necessarily dispositive as to whether preliminary injunctive relief is warranted. Rather, the factors `interrelate on a sliding scale and must be balanced against each other.'" Morgan Stanley DW Inc. v. Rothe, 150 F.Supp.2d 67, 72 (D.D.C.2001) (citations omitted). "If the plaintiff makes a particularly weak showing on one factor, however, the other factors may not be enough to `compensate.'" Id. at 73; see also Hunter v. FERC, 527 F.Supp.2d 9, 14 (D.D.C.2007); Dodd v. Fleming, 223 F.Supp.2d 15, 20 (D.D.C.2002).

I. Substantial Likelihood of Success on the Merits

The Court will focus its analysis on the first prong of the test for a preliminary injunction: plaintiffs' likelihood of success on the merits. Defendants raise two threshold reasons why plaintiffs cannot ultimately succeed with their suit. First, defendants argue that plaintiffs' challenge to an alleged "policy" is not justiciable; plaintiffs must instead challenge individual denials of specific visa applications. Second, defendants contend that the "policy" at issue here does not constitute "final agency action" and hence is unreviewable under the Administrative Procedure Act. 5 U.S.C. § 704. Each of defendants' arguments has merit, and the Court addresses them in turn.

A. Challenge to Discrete Agency Actions

The first doctrine defendants invoke stems from a secondary holding in the Supreme Court's decision in Lujan v. National Wildlife Federation, 497 U.S. 871, 890, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). In Lujan, the Supreme Court rejected a challenge to the Bureau of Land Management's "land withdrawal review program," reasoning that "wholesale improvement" cannot be made by "court decree." Id. at 891, 110 S.Ct. 3177. The Court held that under the APA, a plaintiff "must direct its attack against some particular `agency action' that causes it harm." Id. Lujan did, as plaintiffs point out, involve a much broader challenge than the challenge plaintiffs mount here. See id. at 890, 110 S.Ct. 3177 (likening plaintiffs' challenge in Lujan to the "`weapons procurement program' of the Department of Defense"). But since Lujan, several lower courts have held that even challenges to narrower "policies" are unreviewable under Lujan and the APA.

Defendants cite, for example, to Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000). There, the Fifth Circuit rejected a challenge to the U.S. Forest Service's policy regarding "even-aged timber management." The court framed the plaintiffs' suit as a challenge to "past, ongoing, and future timber sales approved by the Forest Service." Id. at 566. Although the challenged policy was narrower than the challenged program in Lujan, the court held that Lujan applied. Hence, the plaintiffs were required to challenge discrete sales made pursuant to the allegedly unlawful policy. Id. And merely identifying specific sales made pursuant to that policy was not enough to make the case justiciable. Id. at 567.

Defendants also cite to Arden Wood, Inc. v. USCIS, 480 F.Supp.2d 141 (D.D.C. 2007). In Arden Wood, the plaintiffs filed suit against CIS after R-1 visa applications they had filed for foreign religious workers were denied pursuant to an allegedly unlawful interpretation of the statute governing religious worker visas. Although the plaintiffs originally challenged the denial of a specific application, that application was granted by CIS after suit had been filed. Nonetheless, plaintiffs pressed their case, seeking declaratory and injunctive relief regarding CIS's "ongoing `policy'" regarding religious worker visas. See id. at 146. The court dismissed the case on standing grounds. Id. at 147-48. At the same time, the court also invoked Lujan, holding on alternative grounds that the plaintiffs' challenge to CIS's "policy" was not justiciable. Id. at 149-50.

Whether cases like Peterson and Arden Wood have properly interpreted Lujan has not yet been squarely addressed by the D.C. Circuit. But dicta from D.C. Circuit opinions suggests that the court will look favorably on the approach taken by those cases. For example, in Cobell v. Norton, 240 F.3d 1081, 1095 (D.C.Cir.2001), the court questioned a district court's authority to entertain a challenge to a government policy. The court noted that "[a]lthough the government does not press the issue," the district court's holding that a "policy" constitutes final agency action "is questionable. While a single step or measure is reviewable, an on-going program or policy is not, in itself, a `final agency action' under the APA." Id. (citing Lujan, 497 U.S. at 890, 110 S.Ct. 3177).

Plaintiffs respond in two ways. First, they point to cases in which courts entertained challenges to policies under the APA. For example, plaintiffs cite to Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359 (D.C.Cir.2005).1 In Venetian Casino, an employer challenged an EEOC policy that allowed the release of the employer's confidential business information—without notice to the employer—to private parties seeking EEOC review. Unlike here—and unlike cases such as Peterson and Arden Wood—actions taken pursuant to that EEOC policy were not adjudicative decisions from which the aggrieved party could appeal. Moreover, because the challenged policy...

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