OTG NEW YORK INC v. GARLAND et al

Filing 12

OPINION. Signed by Judge Jamel K. Semper on 11/22/2024. (mxw, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
OTG NEW YORK INC,
Civil Action No. 23-23344

Petitioner,
v.

OPINION

MERRICK GARLAND, et al.,
November 22, 2024

Respondents.
SEMPER, District Judge.

The current matter comes before the Court on Merrick Garland, et al.’s (“Respondents”)
motion to dismiss OTG New York Inc.’s (“OTG” or “Petitioner”) Petition for Writ of Mandamus
(“Petition”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 1 (ECF 6-1.)
Petitioner filed a brief in opposition. (ECF 8.) Respondents replied. (ECF 9.) 2 For the reasons
stated below, Respondents’ 12(b)(1) motion to dismiss is GRANTED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 3

Although Respondents bring this motion pursuant to both 12(b)(1) and 12(b)(6), the Court does not reach
the merits of Respondents’ 12(b)(6) motion as the Court’s 12(b)(1) analysis is dispositive.
2
Petitioner’s Complaint will be referred to as “Compl.” (ECF 1.) Respondents’ brief in support of its motion
(ECF 6-1) will be referred to as “MTD”; Petitioner’s brief in opposition (ECF 8) will be referred to as “Opp”; and
Respondents’ reply will be referred to as “Rep.” (ECF 9.)
3
When considering a motion to dismiss under Rule 12(b)(6), the Court is obligated to accept as true
allegations and complaints and all reasonable inferences that can be drawn therefrom. See Rocks v. City of Phila., 868
F.2d 644, 645 (3d Cir. 1989). Furthermore, when considering a facial attack pursuant to 12(b)(1), a “district court
[shall] apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6) . . . .
” Const. Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014); see also Pitman v. Ottehberg, No. 10-2538, 2015
WL 179392, at *3 (D.N.J. Jan. 14, 2015) (“[T]he Court must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.”) (citing Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.
2005) and Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008)). Accordingly, the following facts are taken
from Petitioner’s Complaint and the documents integral to or relied upon by the Complaint and the public record. See
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
1

1

On July 21, 2021, Petitioner filed a Form ETA-9089 Application for Permanent
Employment Certification (“PERM application”) on behalf of beneficiary Jin Woo Kim for a
billing clerk position. (ECF 1, Compl. ¶¶ 1-2.)
On December 21, 2021, the Certifying Officer issued an audit letter requesting specific
information regarding OTG’s recruitment steps, a copy of the notice of filing, as well as other
documentation to determine compliance with the PERM program. (Id.)
On December 22, 2021, Petitioner submitted an audit response to the United States
Department of Labor (“DOL”) Certifying Officer. (Id. ¶ 2.)
On April 26, 2022, after reviewing OTG’s audit response, DOL issued a decision denying
the PERM application. (See ECF 1-6, Ex. 3 “DOL April Denial Decision.”) The primary basis for
the denial was that the notice of filing for the Application for Permanent Employment Certification
did not contain the correct address of the Certifying Officer with jurisdiction over the application.
(Id.) See also 20 C.F.R. § 656.10(d)(3)(iii). Included with the denial were explicit instructions
outlining the necessary steps for an employer to appeal, either by requesting review before BALCA
or requesting the Certifying Officer reconsider the denial. (ECF 1-6, Ex. 3, DOL April Denial
Decision.) The denial also confirmed that the failure to file either a request for review or
reconsideration within 30 days constituted “a failure to exhaust administrative remedies” and that
the denial would become the final determination of the Department, but noted the employer could
file a new application. (Id.)
On May 18, 2022, OTG’s attorney, Yungsung Choi, sent an email to the DOL help desk.
(See ECF 6-2, Ex. A.) 4 This e-mail indicated OTG was “submitting a new audit response.” (Id.)
The e-mail did not implicitly or explicitly request a review with BALCA or a reconsideration. (Id.)
4

See also ECF 6-4, Declaration of Brandt Carter, ¶5 (“Carter Decl.”).

2

The next day, on May 19, 2022, the DOL help desk responded to the email, explaining that OTG
could request reconsideration, request review before BALCA, or file a new application. (See ECF
6-3, Ex. B.) 5 The response also included instructions on how to request reconsideration or review.
(Id.) After receiving these instructions, OTG asserts they “promptly requested the certifying officer
to reconsider the denial within the specified 30-day-period.” 6 (ECF 1, Compl. ¶ 4.)
On December 26, 2023, Petitioner initiated the instant action by filing a Petition for Writ
of Mandamus in this District asking for an order against DOL “directing it to adjudicate
Petitioner’s request to reconsider.” (ECF 1.) On April 15, 2024, Respondents moved to dismiss the
petition. (ECF 6.)
II.

LEGAL STANDARD
“When a motion under Rule 12 is based on more than one ground, the court should consider

the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter
jurisdiction, all other defenses and objections become moot.” Dickerson v. Bank of Am., N.A., No.
12-03922, 2013 WL 1163483, at *1 (D.N.J. Mar. 19, 2013) (citing In re Corestates Trust Fee
Litig., 837 F. Supp. 104, 105 (E.D. Pa. 1993)). In considering dismissal for lack of subject matter
jurisdiction, a district court’s focus is not on whether the factual allegations entitle a plaintiff to
relief, but rather on whether the court has jurisdiction to hear the claim and grant relief. Maertin v.
Armstrong World Indus., Inc., 241 F. Supp. 2d 434, 445 (D.N.J. 2002).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a complaint or portions of a
complaint may be dismissed for a lack of subject matter jurisdiction. In deciding a Rule 12(b)(1)
motion for lack of subject matter jurisdiction, a court must determine whether the moving party

See also Carter Decl. ¶ 6.
Despite Petitioner’s citation to Exhibit 4 in support of Petitioner’s assertion that they “promptly requested
the certifying officer to reconsider the denial[,]” Exhibit 4 is not a request for reconsideration. Rather, Exhibit 4 is the
original PERM Application filed on July 21, 2021. (See ECF 1-4.)
5
6

3

presents a “facial” or “factual” attack; the distinction determines how the pleading is reviewed. 7
In re Schering-Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir.
2012). “A facial attack ‘contests the sufficiency of the complaint because of a defect on its face,’
whereas a factual attack ‘asserts that the factual underpinnings of the basis for jurisdiction fails to
comport with the jurisdictional prerequisites.’” Hall v. Revolt Media & TV, LLC, No. 17-2217,
2019 WL 2183861, at *2 (D.N.J. May 21, 2019) (quoting Elbeco Inc. v. Nat’l Ret. Fund, 128 F.
Supp. 3d 849, 854 (E.D. Pa. 2015)). Here, Respondents have not stated whether
this Rule 12(b)(1) motion is a facial or factual attack. However, given the facts of this case and its
procedural posture, the Court concludes that Respondents have asserted a facial attack. Indeed,
“[a] factual jurisdictional proceeding cannot occur until plaintiff’s allegations have been
controverted.” Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884, 892 n.17 (3d Cir. 1977).
Because Respondents filed this motion to dismiss prior to filing an answer to the Complaint, it is
considered a facial challenge. 8
Essentially, “a facial attack calls for a district court to apply the same standard of review it
would use in considering a motion to dismiss under Rule 12(b)(6) . . . .” Const. Party of Pa., 757
F.3d at 358; see also Pitman v. Ottehberg, No. 10-2538, 2015 WL 179392, at *3 (D.N.J. Jan. 14,
2015) (“[T]he Court must accept all well-pleaded allegations in the complaint as true and view
them in the light most favorable to the plaintiff.”) (citing Evancho v. Fisher, 423 F.3d 347, 350 (3d
Cir. 2005) and Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008)).

This Court also has an independent obligation to establish that it has subject matter jurisdiction. Morel v.
INS, 144 F.3d 248, 251 (3d Cir. 1998).
8
See Const. Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (holding that a 12(b)(6) motion filed
prior to any answer was, “by definition, a facial attack”); Kalick v. United States, 35 F. Supp. 3d 639, 644 (D.N.J.
2014), aff'd, 604 Fed. Appx. 108 (3d Cir. 2015), cert. denied, 193 L. Ed. 2d 106 (2015) (citing Cardio-Med.
Associates, Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983) (“A motion to dismiss for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) which is filed prior to answering the complaint is considered a
‘facial challenge’ to the court's subject matter jurisdiction.”)).
7

4

III.

ANALYSIS
a. Subject Matter Jurisdiction over the Petition for Writ of Mandamus
Petitioner requests a writ of mandamus and an order requiring the United States

Department of Labor (“DOL”) to process his application. In response, Respondents assert that
Petitioner failed to submit a proper request for reconsideration, and in the absence of such a
request, the Court lacks subject matter jurisdiction. The Court agrees with Respondents.
The Mandamus Act provides, “[t]he district courts shall have original jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. To establish mandamus
relief, the petitioner must establish (1) that he has a clear right to relief, (2) that the respondent’s
duty to perform the act in question is plainly defined and peremptory, and (3) that he has no other
adequate remedy. Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990). To secure mandamus
relief, the petitioner must show a “clear and undisputable” right to the writ. Comuso v. Nat’l R.R.
Passenger Corp., 267 F.3d 331, 339 (3d Cir. 2001) (quoting Mallard v. U.S. Dist. Ct. for Iowa, 490
U.S. 296, 309 (1989)). Critically, “[m]andamus is an extraordinary remedy that can only be granted
where a legal duty ‘is positively commanded and so plainly prescribed as to be free from doubt.’”
Appalachian States Low-Level Radioactive Waste Comm'n v. O’Leary, 93 F.3d 103, 112 (3d Cir.
1996) (quoting Harmon Cove Condo. Ass’n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987)).
Mandamus “is intended to provide a remedy only if the plaintiff has exhausted all other avenues
of relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466
U.S. 602, 616 (1984).
Petitioner claims that the DOL failed to discharge its duty of adjudicating a properly filed
application for labor certification and cite Section 706(1) of the APA, which grants a court the

5

authority to compel agency action that has been unreasonably delayed. (ECF 1, Compl. ¶ 12.)
Petitioner maintains that the email of OTG’s attorney “submitting a new audit response”
establishes a proper request for reconsideration. (Id. ¶¶ 3-4.) Accordingly, Petitioner asserts the
DOL was required to adjudicate Petitioner’s request to reconsider the denial of their application
for labor certification within a reasonable time. 9 (Id. ¶¶ 6-7.)
Despite Petitioner’s assertions and even taking all of Petitioner’s factual allegations as true,
Petitioner fails to plausibly allege that they have submitted a proper request for reconsideration
with the DOL. OTG’s pleading disregards the DOL regulations referenced below which provide
detailed instructions regarding submissions for requests for reconsideration.
Respondents assert, and Petitioner does not dispute, that it failed to follow DOL’s
instructions regarding how to submit a request for reconsideration. As currently pled, the facts
clearly demonstrate that Petitioner failed to properly (1) request reconsideration of the denial
pursuant to 20 C.F.R. § 656.24(g)(1), (2) submit an appeal to the Board of Alien Labor Certification
(BALCA) pursuant to 20 C.F.R. § 656.26(a)(1), or (3) submit a new application following the
applicable procedures. (See ECF 6-4, Carter Decl. ¶¶ 6-8.) Indeed, upon receiving information
from DOL providing guidance for filing a reconsideration or appeal, Petitioner failed to file a
timely reconsideration request within the 30-day window provided by 20 C.F.R. § 656.24(g)(1).
(Id.) Instead, Petitioner waited 18 months and filed the present lawsuit on December 26, 2023.
(See generally ECF 1, Compl.)

The Court declines to engage in a fulsome analysis with respect to Petitioner’s “unreasonable delay”
argument. However, the Court notes the average number of days to process an audit review is 496 days despite
Petitioner’s claim that DOL’s delay here of over one and a half years is unjustifiable. (See Compl. ¶ 15(1) and (2).)
9

6

Based on the foregoing, Petitioner failed to demonstrate that OTG made a proper request
for reconsideration to DOL, and therefore, the Court lacks subject matter jurisdiction to hear this
action pursuant to Rule 12(b)(1). 10
IV.

CONCLUSION
For the reasons stated above, Respondents’ motion to dismiss is GRANTED. An

appropriate order accompanies this opinion.
/s/ Jamel K. Semper
.
HON. JAMEL K. SEMPER
United States District Judge

Orig: Clerk
cc:
James B. Clark, U.S.M.J.
Parties

10
Furthermore, even if the Court did have subject matter jurisdiction, mandamus would likely not be proper
as Petitioner has failed to establish a clearly established duty to act. See Weber v. United States, 209 F.3d 756, 760
(D.C. Cir. 2000) (“[M]andamus is proper only when an agency has clearly established duty to act.”). See also Rios v.
Ziglar, 398 F.3d 1201, 1208 (10th Cir. 2005) (holding that by failing to properly file his application with an agency,
petitioner failed “to establish a clear right to relief, he failed to state a claim upon which relief may be granted.”).

7