U.S. v. Richard Dattner Architects, 96 CIV. 9338(MBM).

• Decision Date: 09 July 1997
• Docket Number: No. 96 CIV. 9338(MBM).,96 CIV. 9338(MBM).
• Parties: The UNITED STATES and Leonidas Mate, Plaintiffs, v. RICHARD DATTNER ARCHITECTS, Defendants.
• Court: U.S. District Court — Southern District of New York

972 F.Supp. 738

The UNITED STATES and Leonidas Mate, Plaintiffs, v. RICHARD DATTNER ARCHITECTS, Defendants.

No. 96 CIV. 9338(MBM).

United States District Court, S.D. New York.

July 9, 1997.

COPYRIGHT MATERIAL OMITTED

Leonidas Mate, Bayonne, NJ, pro se.

Mark Seiden, Gogick & Seiden, New York City, for Defendant.

Mary Jo White, United States Attorney, Robert Sadowski, Assistant United States Attorney, New York City, for U.S.

OPINION AND ORDER

MUKASEY, District Judge.

Leonidas Mate sues Richard Dattner Architect, P.C. for violations of the Immigration and Nationality Act, 8 U.S.C. § 1001 et seq. ("INA"), and the False Claims Act, 31 U.S.C. § 3729 et seq. ("FCA"). The United States is a nominal plaintiff here because the FCA requires that the Government be given the opportunity to pursue any claims under that statute. See 31 U.S.C. § 3730 (1994). Defendant moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons outlined below, defendant's motion is granted.

I.

In 1995, defendant, an architectural firm, employed Omolade Jacob Tukuru, a Nigerian citizen, as an architect. (Def. Mem. at 2)¹ Tukuru's temporary alien labor certification was to expire in the summer of 1995. (Id.) Department of Labor guidelines required that defendant search for qualified domestic workers before Tukuru's certification could be extended. (Id.) Therefore, on July 2, 1995, defendant advertised in The New York Times for an architect. (Pl. Affirm. at ¶ 3(a)) Plaintiff responded to the advertisement and, on August 23, 1995, defendant interviewed him. (Id. ¶ 3(b))

Plaintiff claims that defendant did not hire him despite his qualification for the job. Instead, plaintiff claims, defendant submitted a false application for a temporary labor certification to the Secretary of Labor representing that after conducting a search, no qualified domestic workers were available for Tukuru's position. (Compl. at 2; Pl. Affirm. ¶ 3(b), (g)) The Secretary then granted defendant's labor certification application. (Def. Mem. at 3)

Plaintiff asserts two claims. First, he alleges an "action in tort for refusing to hire a fully qualified U.S. worker in favour of a foreign worker, using a fraudulently obtained certification `that qualified persons in the U.S. are not available,' in violation of a clearly mandated public policy (20 C.F.R. s 655.0), which is important and involves a singularly public purpose." (Compl. at 2) Second, plaintiff asserts that defendant violated the FCA by knowingly presenting a "false claim for approval." (Compl. at 2-3) The Government declined to intervene in this action under the FCA, and, as he was permitted to do, plaintiff proceeded in the name of the United States. See 31 U.S.C. § 3730(b) (1994). Defendant moves to dismiss both claims pursuant to Fed.R.Civ.P. 12(c).

II.

When evaluating a motion for judgment on the pleadings, a court must view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the non-moving party. Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 55 (2d Cir.1985). A court must also take "the well-pleaded facts alleged in the complaint ... as admitted," Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir.1974), and may not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Madonna v. United States, 878 F.2d 62, 65 (2d Cir.1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Judgment on the pleadings may be granted only if, on the facts admitted, the moving party is clearly entitled to judgment. Maggette v. Dalsheim, 709 F.2d 800 (2d Cir.1983).

The basis of plaintiff's first claim is not entirely clear. Plaintiff cites 20 C.F.R. § 655.0, a regulation enacted pursuant to the INA, which concerns the procedure for obtaining approval for the temporary employment of aliens. Thus, the most likely interpretation of plaintiff's claim is that defendant violated the INA and its regulations by submitting a fraudulent statement to the Secretary of Labor and hiring an alien when domestic workers were available. Defendant argues that plaintiff's INA claim must be dismissed because no private right of action exists against an employer for submission of a false temporary labor certification application and for hiring an alien pursuant to a false certification. A review of the statutory and regulatory structure is essential to deciding whether plaintiff has a valid claim.

A. The Statutory and Regulatory Structure

The INA creates two broad classifications for persons seeking to enter the United States: immigrant and nonimmigrant. A person is presumed to be an immigrant unless proved to fall within one of the classes of persons considered nonimmigrants. 8 U.S.C. § 1184(b) (1994). "Unlike the lawful immigrant ... who is admitted to the United States for permanent residence, the nonimmigrant may remain only for the duration of an authorized stay and engage only in those activities that are compatible with the specific nonimmigrant status given on entry." 1 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 12.01, at 12-4 (1997). Those seeking nonimmigrant status must meet the requirements of a defined nonimmigrant class to obtain a nonimmigrant visa. 8 U.S.C. § 1201(a)(2) (1994).

Section 1101(a)(15) defines several classes of persons deemed nonimmigrants. Among them are temporary workers who perform services which domestic workers are unavailable to perform. The statute provides:

(15) The term `immigrant' means every alien except an alien who is within one of the following classes of nonimmigrant aliens —

(H) an alien ... (ii)(b) having a residence in a foreign country which he has no intention of abandoning who is coming to temporarily to [sic] the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country....

8 U.S.C. § 1101(a)(15)(H)(ii)(b) (1994).

In addition, the INA defines certain classes of persons who cannot be admitted to the United States, whether as immigrants or nonimmigrants, unless certain conditions are met. Those classes of persons include aliens who seek to enter the United States to perform any type of labor. The statute provides:

[T]he following describes classes of excludable aliens who are ineligible to receive visas and who shall be excluded from admission into the United States:

(5)(A)(i) Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that —

(I) there are not sufficient workers who are able, willing, qualified ... and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C. § 1182(a)(5)(A)(i) (1994). Thus, an alien seeking temporary admission to perform work may be admitted only when the Secretary of Labor certifies that domestic workers are unavailable to perform such work and that the alien's admission would not adversely affect domestic workers.

These two provisions together — the provision defining temporary workers who provide services for which domestic workers are unavailable as nonimmigrants and the provision stating that such workers are not automatically excludable — provide the Attorney General with the authority to admit temporarily alien workers upon the Secretary of Labor's certification. See 8 U.S.C. § 1184(c) (1994).

The Secretary of Labor has promulgated regulations which establish the procedure for obtaining labor certifications. 20 C.F.R. § 655.0 et sea. Aliens admitted to the United States for temporary employment in occupations other than agriculture, logging, or registered nursing are classified as "H-2B Workers." See 20 C.F.R. § 655.0 (1996); 8 C.F.R. § 214.2(h)(1)(i) (1997). Any employer seeking H-2B status for an employee must "consider available United States workers for the temporary services or labor, and shall offer terms and conditions of employment which are consistent with the nature of the occupation, activity and industry in the United States." 8 C.F.R. § 214.2(h)(6)(iii)(B). In making her certification determination, the Secretary of Labor, or her designee, must consider the employer's attempts to recruit domestic workers. 20 C.F.R. § 655.3(b). The Secretary of Labor may approve the application for labor certification if she finds that qualified domestic workers are unavailable, and that the terms of the alien's employment will not adversely affect the wages and working conditions of domestic workers. 20 C.F.R. §§ 655.2-655.3.

After obtaining a labor certification,² the employer must file a petition for an H-2B visa with the INS. 8 C.F.R. § 214.2(h)(6)(iii)(E). If the petition is granted, the resulting H-2B visa is valid for one year. 8 C.F.R. § 214.2(h)(9)(iii)(C). Extensions of the H-2B visa require repetition of the certification process. Gordon et al., supra, § 20.10[1], at 20-120.

Finally, 8 U.S.C. § 1324c provides in relevant part,

It is unlawful for any person or entity knowingly ... to prepare, file, or assist another in preparing or filing, any application for benefits under this chapter, or any document required under this chapter, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted.

8 U.S.C. § 1324c(a)(5) ...