Amcor Rigid Plastics USA, Inc. et al v. U.S. Citizenship & Immigration Services et al
Filing
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ORDER Denying Plaintiffs' 14 Motion for Summary Judgment, Order Granting Defendants' 22 Motion for Summary Judgment, Order Denying Plaintiffs' 28 Motion for Leave to Amend the 1 Complaint and Order Dismissing Action. Signed by District Judge Denise Page Hood. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMCOR RIGID PLASTICS USA, INC.
AND RUCHEN LIU,
Civil Action No. 14-12699
Plaintiffs,
Honorable Denise Page Hood
v.
U.S. CITIZENSHIP AND IMMIGRATION
SERVICES AND LORIA SCIALABBA,
Defendants.
______________________________________/
ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT,
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT,
ORDER DENYING PLAINTIFFS’ MOTION FOR
LEAVE TO AMEND THE COMPLAINT,
AND
ORDER DISMISSING ACTION
I.
BACKGROUND
This matter is before the Court on cross-Motions for Summary Judgment filed
by Plaintiffs Amcor Rigid Plastics USA, Inc. (“Amcor”) and Ruchen Liu (“Liu”) and
by Defendants United States Citizenship and Immigration Services (“USCIS”) and
Lori Scialabba, Acting Director of USCIS. Response and replies have been filed.
On July 9, 2014, Plaintiffs filed the instant action against Defendants seeking
review of the USCIS’s rejection of Liu’s first H-1B Petition under the Administrative
Procedures Act (“APA”), 5 U.S.C. § 706(2)(A). Amcor is headquartered in Ann
Arbor, Michigan specializing in designing and manufacturing containers for
beverages, the food industry, home products, pharmaceuticals and other goods.
(Comp., ¶ 4) Liu is a citizen of China, entered the United States on an F-1 student
visa, graduated from Cornell University with Master’s Degree in Engineering
Management in May 2013. (Comp., ¶ 18) Lieu was granted an Optional Practical
Training (“OPT”) work authorization in order to work for Amcor, which is valid until
July 25, 2014. (Comp., ¶ 18)
On April 1, 2014, Amcor filed an H-1B Petition, Form I-129 (“Petition”) on
behalf of Liu. (Comp., ¶ 19) The USCIS returned Amcor’s Petition on June 10, 2014,
with a form rejection letter date stamped April 28, 2014 indicating the Petition was
not properly filed. (Comp., ¶¶ 21-22) The Petition was filed at the California Service
Center (“CSC”) instead of the Vermont Service Center (“VSC”). (Comp., ¶¶ 28, 30)
Amcor submitted the rejected Petition to the VSC on June 27, 2014, but the USCIS
indicated that the Petition will be rejected again since the fiscal year 2015 was closed
on April 7, 2014. (Comp., ¶¶ 31-32)
On September 29, 2014, the Court entered an Order denying Plaintiff’s Motion
for Preliminary Injunction.
II.
SUMMARY JUDGMENT MOTIONS
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A.
Standard of Review
Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The presence of factual disputes will preclude granting of summary
judgment only if the disputes are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is
“genuine” only if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. Although the Court must view the motion in the light
most favorable to the nonmoving party, where “the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial. In such a
situation, there can be “no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A
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court must look to the substantive law to identify which facts are material. Anderson,
477 U.S. at 248.
The APA provides that a court has the authority to hold unlawful and set aside
agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law. 5 U.S.C. § 706(2)(A). The APA directs courts to review
agency actions under a deferential standard. Bangura v. Hansen, 434 F.3d 487, 502
(6th Cir. 2006). An agency decision is arbitrary and capricious if the agency fails to
examine relevant evidence or articulate a satisfactory explanation for the decision. Id.
(citing, Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 4243 (1983)). The reviewing court “may not supply a reasoned basis for the agency’s
action that the agency itself has not given.” Id. “Even when an agency explains its
decision with less than ideal clarity, a reviewing court will not upset the decision on
that account if the agency’s path may reasonably be discerned.” Id. (quoting Alaska
Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 497 (2004)).
B.
Arbitrary and Capricious
Plaintiffs argue that Defendants’ failure to provide the e-filing option for the H1B petition, only allowing a five-day window to submit the petition, and providing no
mechanism for re-submission of a timely filed petition due to clerical errors are
arbitrary and capricious actions under the APA. Plaintiffs assert that the time to file
the Petition should be equitably tolled since the H-1B Petition was initially timely
filed, admittedly at the wrong service center. Plaintiffs claim Defendants should have
forwarded the timely filed H-1B Petition to the appropriate service center. Plaintiffs
argue that since e-filing was not available for H-1B petitions, the H-1B petitions
received by mail should have been forwarded physically to the proper service center,
as other e-filed petitions are electronically forwarded to the proper service center.
Defendants respond that it was Plaintiffs’ mistake that the H-1B Petition was
filed in the wrong service center and that given the sheer number of petitions filed,
Plaintiffs’ request for special treatment should not be granted. Defendants argue this
would be unfair to other H-1B petitioners whose petitions were properly filed, but did
not make the lottery cutoff date due to a visa held temporarily for those who
improperly filed their petitions. Defendants claim Plaintiffs’ request would require
the USCIS to save visa numbers for the anticipated number of petitions that were
timely filed, but improperly filed in the wrong service center. Defendants argue that
the rejection of Plaintiffs’ H-1B Petition was based on a rational administrative
decision, which, as acknowledged by Plaintiffs, does not violate any statute or
regulation. Defendants claim that the voluminous number of H-1B petitions filed in
such a short period of time makes it burdensome for Defendants to physically
determine and forward improperly filed petitions to the proper service center.
Plaintiffs acknowledge that Congress has set the annual quota for the H-1B visa
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at 65,000, and an additional 20,000 visas for persons with Master’s degrees from a
United States institution of higher education, for a total of 85,000. Approximately
172,500 petitions were filed for these visas as of April 10, 2014. Plaintiffs also
acknowledge that the petition must be executed and filed according to the regulations
and form instructions. They agree that the regulations provide that rejection of a visa
petition results from an untimely filing date and that no administrative appeal lies
from any rejection of a petition. The instructions state that, “[y]ou may file Form I129 electronically. Go to our Internet Web site at www.uscis.gov and follow the
detailed instructions on e-filing” and “[i]f you are e-filing this petition, it will
automatically be routed to the appropriate Service Center.” The USCIS website notes
that “the option to file Form I-129 has been temporary disabled within the e-Filing
System.” (Resp., Ex. D, Pg ID 192) The instructions refer the filer to the website, and
that the website notes that the option to file Form I-129 electronically has been
disabled.
Plaintiffs were aware that the e-filing option was not available. Plaintiffs in fact
mailed the H-1B Petition, but to the wrong service center. Plaintiffs cannot argue that
they did not have notice that e-filing was not available for H-1B petitions. Defendants
submit reasons for not providing the e-filing option, including the capability of the
computer system to accept this type of visa petition. (Defs. Ex. I) Defendants argue
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that to devote time and resources to physically forward mailed applications to other
service centers is burdensome and does not involve the same operational burden as
routing e-filed petitions. Defendants claim that opening, reviewing, and re-routing
misfiled paper H-1B petitions, which in fiscal year 2015 numbered 386, takes
substantial time and resources. (Haskell Decl., Par. 7) Defendants argue that the
numerical limitations imposed by Congress, the extreme oversubscription of H-1B
visas and the tight time frame for processing and adjudicating these visas necessitate
strict procedural rules and deadlines.
The regulations provide that “a benefit request will be considered received by
USCIS as of the actual date of receipt at the location designated for filing such benefit
request ...” 8 C.F.R. Sec. 103.2(a)(7). There is no dispute that USCIS did not receive
Plaintiffs’ H-1B Petition on April 1, 2014 “at the location designated” by the filing
instruction. Based on the regulations, Defendants’ rejection of Plaintiffs’ H-1B
Petition, submitted a second time and not received by April 1, 2014, was not arbitrary
and capricious.
The 85,000 visa petitions must be approved before the start of the fiscal year
beginning October 1, 2014. Defendants claim that in order to meet the deadline and
other statutory mandates, the USCIS has established and published a procedure that
would allow it to equitably and timely accept and receive enough petitions to meet the
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85,000 allowed petitions by the October 1, 2014 deadline. The regulations provide
that if the numerical limit is met during the first five business days allowed to file H1B petitions, known as the “cap season,” the USCIS “may” then randomly select, by
computer-generated selection, a “number of petitions deemed necessary to generate
the numerical limit of approvals,” known as the “lottery.” 8 C.F.R. 214.2(h)(8)(ii)(B).
The regulations also provide that the USCIS will reject any H-1B petitions
received after the first five days if the numerical limit has been met. Defendants assert
that the bases for rejecting improperly filed petitions are fairness and efficiency
because the USCIS’s mandate is to approve 85,000 visa petitions, but no more than
85,000 petitions. Allowing petitioners who improperly filed petitions to resubmit
such petitions would require the USCIS to reserve visa numbers for an anticipated
number of petitions that would be improperly filed, potentially leaving a number of
visas unused. This process is unfair to H-1B petitioners whose petitions were properly
filed.
Given the October 2014 deadline, from the April 2014 filing dates, the USCIS
has only six months to process the more than 172,000 petitions filed and approve
85,000 of those petitions under this H-1B category. The Court finds that Plaintiffs
have failed to show that Defendants’ rejection of Plaintiffs’ Petition was arbitrary and
capricious since the rejection was based on the regulations, instructions and other
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published guidelines.
C.
Equitable Tolling
Plaintiffs also argue that the time to submit the H-1B Petition should be
equitably tolled since they initially filed the Petition within the 5-day time frame, but
at the wrong service center. Administrative agency filing deadlines may be equitably
tolled in appropriate circumstances. Hernandez v. Holder, 457 Fed. Appx 487, 492
(6th Cir. 2012)(involving a Temporary Protected Status application in immigration
setting). However, tolling is applied if the mistake is beyond the applicant’s’ control.
Id. at 493. Equitable tolling is appropriate where the government’s error caused an
applicant to miss a deadline, but there is no authority for the proposition that the
deadline be tolled due to an applicant’s error. Id. at 493.
In this case, Defendants did not cause Plaintiffs to miss the deadline. Plaintiffs
acknowledge it was a clerical error on their part that the application was filed in the
wrong service center. Even a lawyer’s mistake is not a valid basis for equitable tolling.
Whalen v. Randle, 37 Fed. Appx. 113, 120 (6th Cir. 2002). Equitable tolling is not
applicable in this case.
III.
MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
Plaintiffs seek to amend their Complaint to add a factual allegation that the
second rejection by the USCIS occurred, that approval of Liu’s H-1B nonimmigrant
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status would not cause the Fiscal Year 2015 to exceed the caps set forth in 8 U.S.C.
§ 1184(g)(1) or (g)(5), to add a claim for relief under the doctrine of equitable tolling
and to add a claim for mandamus and declaratory relief. Defendants oppose the
motion asserting that they acknowledged in their summary judgment briefs the H-1B
Petition was rejected a second time. They claim that the issue of equitable tolling has
been argued in the parties’ previous briefs and that any factual allegation that allowing
Plaintiffs’ H-1B Petition is irrelevant to the equitable tolling argument and does not
create a genuine issue of fact that could defeat summary judgment.
Rule 15(a) provides that a party may amend its pleading once as a matter of
course within 21 days after a responsive pleading is served. Fed. R. Civ. P. 15(a)(1).
Rule 15(a)(2) further provides that a party may amend its pleading on leave of court.
Leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). If a
complaint cannot withstand a motion to dismiss under Rule 12(b)(6), the motion to
amend should be denied as futile. Rose v. Hartford Underwriters Ins. Co., 203 F.3d
417, 420 (6th Cir. 2000).
The Court finds that the factual allegation that the USCIS rejected Plaintiffs’
Petition a second time is incorporated in the parties’ summary judgment briefs and
arguments. The issue of equitable tolling has been addressed above. The factual
allegation that approving Liu’s Petition would not exceed the statutory cap also does
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not create a genuine issue of material fact on the equitable tolling claim since the
Petition was filed in the wrong service center. Because Plaintiffs are not entitled to
a clear and undisputable right to the relief sought, mandamus relief under 28 U.S.C.
§ 1361 is not available to Plaintiffs. The rejection of Plaintiffs’ Petition is not an
extraordinary situation. Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542
U.S. 367, 380 (2004) (Mandamus relief is a “drastic and extraordinary remedy” that
is “only to be reserved for extraordinary situations.”). If an agency has discretion in
a matter, the court does not have subject matter jurisdiction under the Mandamus Act.
Maftoum v. Chavez, 2007 WL 3203850 at *3 (E.D. Mich. Oct. 31, 2007). Plaintiffs’
Motion for Leave to Amend the Complaint is denied as futile.
IV.
CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. No. 14)
is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment
(Doc. No. 22) is GRANTED.
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IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File Amended
Complaint (Doc. No. 28) is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED with prejudice.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: November 26, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of
record on November 26, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
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