Ladybug and Friends Preschool, LLC et al v. Napolitano et al

Filing 6

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 4/10/2014. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LADYBUG AND FRIENDS PRESCHOOL,
LLC and IULIA SALAJAN,
Plaintiffs,
v.
JANET NAPOLITANO, Secretary of the
Department of Homeland Security, et al.,
Defendants.

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Case No. 14 C 1972

MEMORANDUM OPINION AND ORDER
This Court has just received (belatedly1) a copy of the Complaint filed by Ladybug and
Friends Preschool, LLC ("Ladybug") and Iulia Salajan ("Salajan") against Department of
Homeland Security Secretary Janet Napolitano and Christina Poulos, Director of the USCIS
(United States Citizenship and Immigration Service, referred to here for convenience simply as
the "Service") California Service Center. This Court has conducted the threshold review that it
always applies to newly-assigned complaints, and this memorandum opinion and order
("Opinion") addresses two troubling aspects revealed by that review.
To begin with, the filing of this action in this judicial district is problematic -- Complaint
¶ 7 speaks of venue only in these amorphous terms:
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See both (1) this District Court's LR 5.2(f), mandating the prompt delivery of a paper
copy of a newly-filed Complaint to the chambers of the judge assigned to the case, and (2) the
more particularized directive set out at the beginning of this Court's website. With something
over a week having elapsed after the March 20 filing of the lawsuit without plaintiffs' counsel
having complied with those directives, this Court issued a March 31 memorandum order that
directed such delivery together with the payment of a $100 fine, and on April 9 it received a
copy of the Complaint but not a payment of the fine (which plaintiffs' counsel has represented
will be made shortly).

Venue is proper pursuant to 28 U.S.C. 1391 because Plaintiffs and Defendants
operate in this District.
But in fact, even though Complaint ¶ 2 describes Ladybug as "an Illinois based organization,"
the petition whose rejection forms the gravamen of this lawsuit was prepared by attorney
Robert Perkins (who offices at Culver City, California and who has also prepared and filed this
lawsuit), and that petition was transmitted from attorney Perkins' Culver City office to defendant
Poulos at her office in Laguna Niguel, California -- here are Complaint ¶ 5 and the first two
sentences of Complaint ¶ 17, with a copy of the first page of Complaint Ex. 2 (referred to in the
second of those paragraphs) being attached to this Opinion:
5.

Defendant Christina Poulos is the Director, USCIS California Service
Center. As such, she is in charge of adjudicating H-1 visa applications
including those filed by Plaintiffs herein.

17.

On April 5, 2013 Plaintiff Ladybug and Friends Preschool filed an H-1B
petition (the "Petition") with the USCIS Service Center to obtain an H-1B
visa for Plaintiff Iulia Salajan. (See Exhibit 2, a copy of the petition as
well as a receipt from the messenger service Petitioner used to deliver the
petition)

So it appears highly questionable for the Northern District of Illinois to have been
selected as the place for this action to be brought. Moreover, if one thinks ahead to a resolution
of the merits of the case, it would seem that the key witness or witnesses on the fundamental
question whether the petition at issue was rejected in violation of the Service's own requirements
(as plaintiffs allege) would be defendant Poulos and possibly other members of her staff at the
California location.
That point leads into the other troublesome matter that has emerged from this Court's
preliminary review of the Complaint -- a substantive rather than procedural issue. What the
Complaint charges is that the Service's refusal to process Ladybug's petition for H-1B visa status
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for Salajan violated its own relevant instructions and regulations, so that plaintiffs were victims
of a violation of due process of law. On that score attorney Perkins' April 2, 2013 letter to the
Service's Laguna Niguel Service Center (part of the bulky Complaint Ex. 2) specifically listed
this as one of the enclosures:
Form ETA 9035, Labor Condition Application, which has been duly filed with
and approved by the Department of Labor.
It was the lack of signature on that form (referred to in administrative-speak as "LCA") what led
to the Service's refusal to consider the petition at issue, even though the petition had survived the
lottery that the Service had to conduct because the glut of petitions overwhelmed the number of
available slots.
In that respect Complaint Ex. 2 also includes a copy of the LCA, which is also attached to
this Opinion. On that score particular note should be taken of Paragraph A) on its first page and
Paragraph N on its last page, the relevant portions of which are reproduced here: 2
A) I understand and agree that, upon my receipt of ETA's certification of the
LCA by electronic response to my submission, I must take the following actions
at the specified times and circumstances:
• print and sign a hardcopy of the electronically filed and certified LCA
• maintain a signed hardcopy of this LCA in my public access files;
• submit a signed hardcopy of the LCA to the United States Citizenship and
Immigration Services (USCIS) in support of the I-129, on the date of
submission of the I-129;
• provide a signed copy of the LCA to each H-1B nonimmigrant who is
employed pursuant to the LCA.
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In that reproduction the emphasis in Paragraph A) has been added here, while the
boldface, capitalization and italicization contained in Paragraph N were in the original document.
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N. Signature Notification and Complaints
The signatures and dates signed on this form will not be filled out when
electronically submitting to the Department of Labor for processing, but MUST
be complete when submitting non-electronically. If the application is submitted
electronically, any resulting certification MUST be signed immediately upon
receipt from the Department of Labor before it can be submitted to USCIS for
further processing.
It would thus seem that to go forward with this lawsuit here, plaintiffs must not only
address the procedural venue question raised at the outset but must also provide a better
explanation of how a rejection of their petition for the lack of signature on the LCA violated their
rights. Attorney Perkins is ordered to provide a response in both those areas on or before
April 25, 2014.

Date: April 10, 2014

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Milton I. Shadur
Senior United States District Judge

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