Topenca LLC v. Garland
| Decision Date | 02 February 2023 |
| Docket Number | 1:22-cv-20590-KMM |
| Parties | TOPENCA LLC and CHRISTIAN TONI, Plaintiffs, v. MERRICK B. GARLAND, Attorney General of the United States, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (ECF No 13). Plaintiffs Topenca LLC and Christian Toni filed a response in opposition (ECF No. 14), to which Defendants filed a reply (ECF No. 15). The matter has been referred to the undersigned by the Honorable K. Michael Moore, United States District Judge, to take all necessary and proper action as required by law and/or to issue a Report and Recommendation regarding all pre-trial, non-dispositive matters including discovery, and for a Report and Recommendation on any dispositive motions. (ECF No. 5). Having reviewed the Motion, Response, Reply, and the docket as a whole, and being otherwise fully advised, this Court RECOMMENDS that Defendants' Motion be GRANTED.
On June 25, 2015, Plaintiff Topenca LLC (“Topenca”) filed an I-129 petition with Defendant United States Citizenship & Immigration Services (“USCIS”), requesting that Plaintiff Christian Toni (“Toni”) be classified as a multinational executive/manager and be issued an L-1A visa, in accordance with 8 U.S.C. § 1101(a)(15)(L).[2] (ECF No. 1 at 8-9).
USCIS approved this petition on July 2, 2015 and issued Toni a L-1A visa for July 30, 2015 through July 29, 2016. (ECF No. 1-2 at 76). On July 27, 2016, Topenca filed a second L-1A petition (the “2016 Petition”) on behalf of Toni, seeking a two-year extension. (ECF No. 1 at 9). On August 31, 2016, USCIS issued a request for evidence for Plaintiffs' extension. Id. On November 23, 2016, Plaintiffs submitted a response to USCIS. Id. On December 6, 2016, USCIS denied the L-1A petition for an extension. Id.
On February 28, 2022, Plaintiffs commenced this action by filing the Complaint for Declaratory and Injunctive Relief (ECF No. 1), seeking review of USCIS's decision, pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C. § 702, et seq. Defendants now move to dismiss the Complaint for lack of subject matter jurisdiction.
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. (internal citations omitted). Such jurisdiction must be proven by a preponderance of the evidence. Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010). Attacks on subject matter jurisdiction come in two forms: facial attacks and factual attacks. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).[3] A facial attack asserts that a plaintiff has failed to allege a basis for subject matter jurisdiction within the complaint. Id. In a facial attack, a plaintiff's allegations are taken as true for the purposes of the motion. Id. A factual attack challenges subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as affidavits, are considered. Id. With a factual attack, the Court is free to “weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
Defendants seek dismissal of the Complaint for lack of subject matter jurisdiction, arguing that there is no “case or controversy” establishing this Court's jurisdiction under Article III of the U.S. Constitution. (ECF No. 13 at 7). Defendants do not address whether they bring forward a facial or factual attack.[4] Even so, under either standard, Plaintiffs have not met their burden of demonstrating this Court has subject matter jurisdiction over their claims. First, Defendants assert that Plaintiffs have failed to allege facts sufficient to make out the existence of an injury traceable to USCIS's denial of Plaintiffs' 2016 Petition. Id. Defendants alternatively assert that if Plaintiffs have demonstrated such an injury, then Plaintiffs have not established that this Court can redress that injury. Id.
In response to Defendants' Motion, Plaintiffs identify three purported injuries. First, Plaintiffs argue that Topenca's inability to find an individual experienced to manage the organization, and its reduction in operations and business, both constitute injuries traceable to USCIS's decision to deny Plaintiffs' 2016 Petition. (ECF No. 14 at 9-10). Second, Plaintiffs assert that USCIS's denial of the 2016 Petition caused Toni further injury when Toni was later denied admission into the United States, ordered removed, and subjected to a five-year ban. (Id. at 10-11). And third, Plaintiffs assert both Topenca and Toni were injured as they were unable to petition for the First Preference EB-1 category,[5] which would have allowed Toni to apply for an adjustment of status to that of a lawful permanent resident. (Id. at 11).
As for the redressability of their injuries, Plaintiffs assert in their response that a favorable decision in this Court would allow Toni (1) to challenge his removal order, (2) regain his L-1A status, and (3) eventually adjust his status to that of a lawful permanent resident. (ECF No. 14 at 11-12). Plaintiffs also contend that this Court has “the authority to order Defendants to grant Plaintiff's [L-1A] petition from the time it issues its order for the two years that Plaintiff initially requested.” (Id. at 12).
The power of the federal courts is constitutionally confined to “cases” and “controversies.” U.S. Const. art. III, § 2. The requirement imposes certain limits on the federal courts, such as standing. Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 924 (11th Cir. 2020). Under Article III of the Constitution, a party seeking review by a federal court must demonstrate they have standing to pursue their claims. To do so, a party must show it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
In their Motion, Defendants argue that Toni “fails to allege any facts regarding his purported injury.” (ECF No. 13 at 7). Plaintiffs assert that Toni experienced an injury-in-fact when, in 2021, Toni was denied admission into the United States, ordered removed, and banned from reentering for a period of five years. (ECF No. 1 at 14-15); (ECF No. 14 at 10-11). Though Toni has sufficiently pled an injury-in-fact, Plaintiffs have failed to demonstrate the injury is redressable here.
An injury-in-fact must be “concrete and particularized.” Spokeo, Inc., 578 U.S. at 339. Concreteness requires that an injury “actually exist[s].” Id. at 340. Particularization requires that the alleged injury “affect the plaintiff in a personal and individual way.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 n.1 (1992). Plaintiffs provide both factual allegations in the Complaint and evidence attached to their Response that set forth what Toni's claimed injury is, when he suffered it, and how it occurred. Plaintiffs contend that Toni's injury occurred on March 7, 2021 when he tried to enter the United States as he attempted to enter with a nonimmigrant B-1 visa for purposes of conducting business for Topenca. (ECF No. 1 at 14-15); (ECF No. 14 at 7). Plaintiffs assert that because Toni no longer held a L-1A visa, the United States Department of Homeland Security revoked Toni's B-1 visa, denied Toni entry, order him removed, and banned him from reentering for a period of five years. (ECF No. 1 at 14-15); (ECF No. 14 at 7, 10-11). Based on the foregoing, Plaintiffs have provided sufficient factual allegations and evidence to establish the existence of an injury to Toni in a personal and individual way. As such, Plaintiffs have sufficiently established that Toni has suffered an injury-in-fact.[6]
As for the redressability of Toni's injury, Defendants argue that Plaintiffs cannot show that a favorable ruling (i.e., an order reversing the decision denying the 2016 Petition) from this Court would redress Toni's injury. (ECF No. 13 at 8). Plaintiffs counter that a favorable ruling would allow “Toni to attack his removal order” and “demonstrate he had a valid visa to conduct business” in the United States.[7] (ECF No. 14 at 11-12). Plaintiffs argue Toni could then reenter the United States with an L-1A visa or other nonimmigrant visa and not be subjected to the five-year ban. (Id. at 12). Defendants reply that (1) a challenge to the underlying removal order is statutorily barred and (2) this Court cannot provide relief because the underlying visa has expired. (ECF No. 15 at 3).
“It must be ‘likely,' as opposed to merely ‘speculative,' that the injury will be ‘redressed by a favorable decision.'” Lujan, 504 U.S. at 561. Redressability is determined by “the availability of relief at a given step, rather than the likelihood of achieving the ultimate goal.” Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec., 783 F.3d 156, 162 (3d Cir. 2015) (citing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 151-53 (2010)).
First as to Toni's ability to challenge the...
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