Irish Help at Home LLC. et al v. Melville et al

Filing 18

STIPULATION AND ORDER re 17 Status Report filed by Rosemary Melville, U.S. Department of Homeland Security, Alexander Mayorkas, Janet Napolitano. Signed by Magistrate Judge Maria-Elena James on 5/2/2014. (rmm2S, COURT STAFF) (Filed on 5/2/2014)

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STUART F. DELERY
Assistant Attorney General
Civil Division
COLIN A. KISOR
Acting Director, District Court Section
AARON S. GOLDSMITH
Senior Litigation Counsel
HANS H. CHEN
Trial Attorney
United States Department of Justice, Civil Division
Office of Immigration Litigation, District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Telephone: [phone], Facsimile: [phone]
Email: [e-mail]
ATTORNEYS FOR DEFENDANTS

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IRISH HELP AT HOME LLC and
BRIDGET McDERMOTT,

) No. 3:13-cv-00943-MEJ
)
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Plaintiffs,
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v.
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ROSEMARY MELVILLE, California Service )
Center, U.S. Citizenship and Immigration
)
Services; ALEXANDER MAYORKAS,
)
Director, U.S. Citizenship and Immigration
)
Services; U.S. DEPARTMENT OF
)
HOMELAND SECURITY; JANET
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NAPOLITANO, Secretary,
)
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Defendants.
)

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JOINT STATUS REPORT AND STIPULATION FOR STAY
Pursuant to the Court’s April 18, 2014, status order, Plaintiffs Irish Help At Home LLC

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(“Irish Help At Home”) and Bridget McDermott (“McDermott,” and collectively with Irish Help

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At Home, “Plaintiffs”) and Defendants Rosemary Melville, Alexander Mayorkas, U.S.

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Joint Status Report and
and Stipulation for Stay
No. 3:13-cv-00943-MEJ

United States Department of Justice, Civil Division
Office of Immigration Litigation
P.O. Box 868, Washington, D.C. 20044
-1(202) 307-4469

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Department Of Homeland Security (“DHS”), and Jeh Johnson1 (collectively “Defendants,” and

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collectively with Plaintiffs, the “Parties”) stipulate as follows:
This is an immigration case in which Plaintiffs challenge the denial by United States

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Citizenship and Immigration Services (“USCIS”) of Plaintiffs’ petition for an H-1B visa for its

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prospective employee, McDermott (“H-1B Petition”).
The principal issue in this case is whether the certified administrative record (“CAR”)

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supports USCIS’s decision denying Plaintiffs’ H-1B Petition. Plaintiffs contends that because

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the CAR does not support AAO’s decision, the agency’s decision is arbitrary and capricious.

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See 5 U.S.C. § 706(2)(A). Defendants contend that the CAR supports the AAO’s decision and

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the Court must defer to the agency’s reasonable interpretation of its governing regulations. See

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Auer v. Robbins, 519 U.S. 452, 461-62 (1997). In their first amended complaint, Plaintiffs seek

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an order directing Defendants to approve the H-1B Petition. Plaintiffs do not seek damages.
USCIS initially denied Plaintiffs’ H-1B Petition on December 13, 2012. On March 1,

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2013, Plaintiffs filed their complaint in this action. On May 14, 2013, USCIS reopened the

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matter on its own motion. On September 27, 2013, USCIS again denied the H-1B Petition but

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certified the decision to USCIS’s Administrative Appeals Office (“AAO”) for review.
From October 2, 2013, to October 21, 2013, this matter was stayed due to a lapse in

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appropriations to the United States Department of Justice. (ECF Nos. 10, 12.)

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On October 30, 2013, Plaintiffs filed their amended complaint to include allegations

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concerning USCIS’s second denial of the H-1B Petition. (ECF No. 13.) On November 12,

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2013, Defendants filed their answer to the amended complaint (ECF No. 14.) Meanwhile, the H-

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1B Petition remained pending before the AAO.
On February 5, 2014, the AAO issued a written ruling affirming USCIS’s visa denial. On

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March 5, 2014, Plaintiffs filed a motion to reopen the AAO decision so that Plaintiffs could

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Jeh Johnson was sworn in as Secretary of the Department of Homeland Security on December
23, 2013. Defendants therefore request that the Court substitute Secretary Johnson for former
Secretary Janet Napolitano as a defendant in this action. See Fed. R. Civ. P. 25(d).
Joint Status Report and
and Stipulation for Stay
No. 3:13-cv-00943-MEJ

United States Department of Justice, Civil Division
Office of Immigration Litigation
P.O. Box 868, Washington, D.C. 20044
-2(202) 307-4469

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submit additional evidence to the AAO, supplement the CAR, and seek an administrative remedy

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to their claims.

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Because Plaintiffs’ motion to reopen remains pending before the AAO, Plaintiffs have

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not filed a second amended complaint that includes allegations relating to the AAO’s February 5,

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2014, decision or to Plaintiffs’ motion to reopen. Additionally, while the Parties believe that the

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Court can decide the entire case based on cross-motions for summary judgment, the Parties have

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not yet proposed a briefing schedule on cross-motions for summary judgment because the

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motion to reopen remains pending before the AAO.

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To permit the AAO time to decide Plaintiffs’ motion to reopen, the parties stipulate to an

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order imposing a forty-five day stay in this action. If the motion to reopen remains pending

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before the AAO at the end of the forty-five day stay, the parties will submit a supplemental status

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report at the conclusion of the forty-five day stay period. If the AAO has ruled on the motion to

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reopen before the conclusion of the forty-five day stay, the parties will submit, at the conclusion

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of the forty-five day stay period, a proposed schedule for Plaintiffs to file a second amended

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complaint, for Defendants to file their answer and to provide Plaintiffs with a CAR, and for

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briefing on the Parties’ cross-motions for summary judgment.

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Joint Status Report and
and Stipulation for Stay
No. 3:13-cv-00943-MEJ

United States Department of Justice, Civil Division
Office of Immigration Litigation
P.O. Box 868, Washington, D.C. 20044
-3(202) 307-4469

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Dated: May 1, 2014

Respectfully submitted,

THE LAW OFFICE OF
JAMES M. BYRNE

STUART F. DELERY
Acting Assistant Attorney General
Civil Division

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/s/James M. Byrne
James M. Byrne
1374 Pacific Avenue
San Francisco, California 94109
Tel: [phone]
Fax: [phone]
[e-mail]

COLIN A. KISOR
Acting Director
District Court Section
AARON S. GOLDSMITH
Senior Litigation Counsel

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ATTORNEYS FOR PLAINTIFFS
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/s/ Hans H. Chen
HANS H. CHEN
Trial Attorney
United States Department of Justice
Civil Division
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: [phone]
Fax: [phone]
[e-mail]
ATTORNEYS FOR DEFENDANTS

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PURSUANT TO STIPULATION, IT IS SO ORDERED

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May 2, 2014
Dated: ___________________________

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_________________________________
THE HON. MARIA-ELENA JAMES
UNITED STATES MAGISTRATE JUDGE

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Joint Status Report and
and Stipulation for Stay
No. 3:13-cv-00943-MEJ

United States Department of Justice, Civil Division
Office of Immigration Litigation
P.O. Box 868, Washington, D.C. 20044
-4(202) 307-4469

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 1, 2014, I electronically filed the foregoing document

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with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being

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served this day on all counsel of record or pro se parties via transmission of Notices of Electronic

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Filing generated by CM/ECF or in some other authorized manner for those counsel or parties

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who are not authorized to receive electronically filed Notices of Electronic Filing.

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/s/ Hans H. Chen
HANS H. CHEN
Trial Attorney
United States Department of Justice
Civil Division
Office of Immigration Litigation
District Court Section

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Stipulation to Amend Complaint
and to Establish Briefing Schedule
No. 3:13-cv-00943-MEJ

United States Department of Justice, Civil Division
Office of Immigration Litigation
P.O. Box 868, Washington, D.C. 20044
[phone]