Pitman et al v. United States Citizenship and Immigration Services (USCIS) et al

Filing 43

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS' MOTION TO STRIKE AND DENYING DEFENDANTS' MOTION TO DISMISS-denying 35 Motion to Dismiss for Failure to State a Claim ; denying 37 Motion to Strike ; Motions terminated: 37 Plaintiff's MOTION to Strike 35 Defendant's MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support and Memorandum in Support filed by Liliana Damaschin, Tyler Pitman, 35 Defendant' ;s MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support filed by James Comey, A. Kristi Barrows, Jeh Johnson, Board of Immigration Appeals, United States Immigration and Customs Enforcement, Laura McNeer, United States Citizenship and Immigration Services, Loretta Lynch, Leon Rodriguez, Sarah Saldana. Within fourteen (14) days of this order, the parties must submit a proposed scheduling order setting forth the dates by which the filings required in DUCiv R 7-4(a)(5) will be made. Signed by Judge Clark Waddoups on 12/1/17. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

TYLER PITMAN and LILIANA
DAMASCHIN,

MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS’
MOTION TO STRIKE AND DENYING
DEFENDANTS’ MOTION TO DISMISS

Plaintiffs,
vs.

Case No. 2:17-cv-0166-CW-EJF
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES (“USCIS”);
et al.,

Judge Clark Waddoups
Magistrate Judge Evelyn J. Furse

Defendants.

Defendants have filed a Motion to Dismiss this action for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), and Plaintiffs’ have filed a Motion to Strike
Defendants’ Motion to Dismiss. (See Defs.’ Mot. to Dismiss, ECF No. 35; Pls.’ Mot. to Strike,
ECF No. 37.) Upon consideration of the parties’ briefing and arguments therein, the court first
DENIES Plaintiffs’ Motion to Strike, (ECF No. 37), and then DENIES Defendants’ Motion to
Dismiss, (ECF No. 35). The court will address the Motion to Strike first.
A. Motion to Strike
Plaintiffs argue that DUCiv R 7-4 precludes Defendants’ refiling their Motion to Dismiss
after transfer of the case to this court. Though DUCiv R 7-4 generally applies to actions for
administrative review, the court finds the rule does not preclude the Defendants’ re-filing their
Motion to Dismiss in the circumstances.
The parties do not dispute that Defendants timely brought a motion to dismiss in the
District of Colorado, where Plaintiffs originally filed this case. (ECF No. 9.) Defendants sought
dismissal in that district under Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6). (See id.)
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In resolving the motion, the District of Colorado ordered the case transferred to this district and
denied Defendants’ motion to dismiss under 12(b)(6) without prejudice and without reaching the
merits of those arguments. (ECF No. 17, p. 5.) Defendants’ renewed Motion to Dismiss relates
back to the timely filing in Colorado, as it raises the 12(b)(6) arguments that remain unexamined
by the District of Colorado.
Plaintiffs make much of the fact that Defendants did not refile this Motion until over six
months after the case was transferred. (See ECF No. 37, p. 4.) Though Defendants delayed in
refiling their Motion, ultimately the burden lies with the Plaintiffs to prosecute their case. Neither
party made any attempt to move the case forward until the court’s Docket Text Order (DTO)
requesting that the parties submit a proposed scheduling order by September 29, 2017. (See ECF
No. 34.) 1 Defendants responded by refiling their unresolved Motion, which is now fully briefed.
The language of DUCiv R 7-4(a)(4) does not address this situation, where a timely
motion to dismiss is denied without prejudice due to a court’s decision to transfer the action, and
where the parties do not act promptly after the action is transferred. The local rule does not
appear on point to this scenario, and neither side has acted particularly diligently in this case.
Moreover, Plaintiffs do not claim any prejudice to them from the renewed motion, and the
motion is fully briefed. Thus, the court will proceed to resolve the Motion to Dismiss on its
merits. See Gillum v. United States, 309 F. App’x 267, 270 (10th Cir. 2009) (unpublished)
(observing that “litigation should promote the finding of the truth, and, wherever possible, the
resolution of cases on their merits”).
Accordingly, the court DENIES Plaintiffs’ Motion to Strike, (ECF No. 37).

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The DTO did nothing more than request a proposed scheduling order. It did not determine, as
Plaintiffs suggest, that Defendants’ Motion to Dismiss was untimely under the local rules.
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B. Motion to Dismiss
Upon review of the parties’ arguments in the Motion to Dismiss, as well as the record in
this case, the court finds that Defendants’ dismissal arguments will be more properly addressed
after the filing of the administrative record.
This action seeks review of the United States Citizenship and Immigration Services’
(USCIS) denial of Plaintiff Pittman’s I-130 “immediate relative” petition filed on behalf of
Plaintiff Damaschin. The court’s jurisdiction over this action arises from the Administrative
Procedure Act (APA), which entitles those “adversely affect or aggrieved by agency action” to
judicial review, 5 U.S.C. § 702, and requires a reviewing court to set aside an agency decision
when the administrative record shows that the decision is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” id. § 706(2)(A).
“This means, of course, that judicial review of the agency’s decision must proceed on the
administrative record.” Atieh v. Riordan, 727 F.3d 73, 75 (1st Cir. 2013) (citing Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)). Though not controlling in the
Tenth Circuit, Atieh is directly on point here. The defendants in Atieh sought dismissal of an
action for review of an USCIS decision denying an I-130 petition because of the marriage fraud
bar for failure to state a claim upon which relief could be granted. 727 F.3d at 76. The district
court reviewed the complaint and dismissed after finding the Atiehs’ allegations of arbitrary and
capricious decisionmaking implausible. Id. The First Circuit reversed, holding that “the
plausibility standard does not apply to a complaint for judicial review of final agency action”
because “[t]he plausibility standard is a screening mechanism designed to weed out cases that do
not warrant either discovery or trial,” and neither discovery nor trial occur during APA review.
Id. The First Circuit explained,

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The focal point of APA review is the existing administrative record. See Camp v.
Pitts, 411 U.S. 138, 142 (1973) (per curiam). Allowing the allegations of a
complaint to become the focal point of judicial review introduces an unnecessary
and inevitably unproductive step into the process. The relevant inquiry is—and
must remain—not whether the facts set forth in a complaint state a plausible claim
but, rather, whether the administrative record sufficiently supports the agency’s
decision. Cf. Mass. Dep’t of Pub. Welfare v. Sec’y of Agric., 984 F.2d 514, 525
(1st Cir.1993) (explaining, in summary judgment context, that “the real question
is . . . whether the administrative record, now closed, reflects a sufficient dispute
concerning the factual predicate on which [the agency] relied . . . to support a
finding that the agency acted arbitrarily or capriciously”).
Id. The First Circuit noted that Rule 12(b)(6) dismissal arguments may be relevant in some cases
for APA review, such as when “the underlying premise of the complaint is legally flawed (rather
than factually unsupported),” but that review of agency action under the arbitrary and capricious
standard is not such a case. Id. n.4. Moreover, the First Circuit chastised the parties for failing to
file the administrative record below or on appeal, noting that the attachments the Atiehs’
included with their complaint did not constitute the full administrative record. Id. at 77. Instead,
it is the government’s burden to file the administrative record in APA review cases and to certify
that it is complete. Id.; see Fed. R. App. P. 17(b)(1)(A) (stating that, unless the parties stipulate in
writing otherwise, the agency must file “the original or a certified copy of the entire record or
parts designated by the parties”); DUCiv R 7-4(a)(5)(A) (stating that the agency must file the
indexed administrative record). “When parties ignore this customary practice, they undermine a
court’s ability to perform meaningful review of agency action.” Atieh, 727 F.3d at 77.
The First Circuit’s logic makes sense and the court finds it persuasive. The court cannot
determine whether the USCIS decision was arbitrary or capricious in this case without the full
administrative record (or those parts designated and stipulated to by both parties). The
allegations of the complaint and pieces of the record attached thereto are insufficient to conduct
an APA review. The Tenth Circuit agrees. “The duty of a court reviewing agency action under

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the ‘arbitrary or capricious’ standard is to ascertain whether the agency examined the relevant
data and articulated a rational connection between the facts found and the decision made.”
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994) (citing Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983)). “With respect to the
factual support for the agency’s action,” the Tenth Circuit requires that agency action be
supported by “substantial evidence,” a test that imposes “affirmative duties on a district court:
the court must consider conflicts in the record and ‘define, specifically, those facts which it
deems supportive of the agency decision if that is the court’s resolution of the matter.’”
Olenhouse, 42 F.3d at 1576 (quoting Hill v. Morton, 525 F.2d 327, 328 (10th Cir. 1975)). “This
requires a plenary review of the record as it existed before the agency. The district court may not
rely on counsel’s statements as to what was in the record; the district court itself must examine
the administrative record and itself must find and identify facts that support the agency’s action.”
Olenhouse, 42 F.3d at 1576 (citations omitted).
Rather than rely on Defendants’ assertions of what was in the record or Plaintiffs’ alleged
concessions, the court must undertake its own review of the administrative record as a whole.
Even if the court were to review the complaint for failure to state a claim, the court cannot
reconcile the directly opposing standards of review at this point. On a motion to dismiss, the
court must accept the Plaintiffs’ well-pled factual allegations as true and resolve all reasonable
inferences in the Plaintiffs’ favor. Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013).
But review of an agency’s decision is usually deferential. See Citizens’ Comm. to Save Our
Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1021 (10th Cir. 2002). The court does not see how
it can make inferences and draw conclusions in the Plaintiffs’ favor while also paying deference
to the agency’s conclusions. Defendants seek to substitute pleading standards for a merits review

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of whether the agency’s action was arbitrary or capricious on the record before it. The court
cannot make any determination on this issue until it reviews the administrative record and
receives the parties’ arguments on that record.
For these reasons, the court DENIES Defendants’ Motion to Dismiss, (ECF No. 35).
Within fourteen (14) days of this order, the parties must submit a proposed scheduling order
setting forth the dates by which the filings required in DUCiv R 7-4(a)(5) will be made.
DATED this 1st day of December, 2017.
BY THE COURT:
______________________________
Clark Waddoups
United States District Judge

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