Opinion
CIVIL ACTION NO. H-05-250.
August 26, 2005
ORDER
Pending before the Court are Plaintiffs' Motion for Summary Judgment and Request for Oral Argument ( Instrument No. 13) and Defendants' Motion for Summary Judgment ( Instrument No. 14).
I.
Plaintiffs All Pro Cleaning Services, Inc. ("All Pro") and Daniel Kazibutowski ("Kazibutowski") bring this action against Defendants the United States Department of Labor ("DOL"), the Secretary of the Department of Homeland Security Tom Ridge ("Ridge"), and Jenny Elser, Certifying Officer of the United States Department of Labor ("Elser"). Plaintiffs sue under the Mandamus Act, codified at 28 U.S.C. § 1361; the Declaratory Judgment Act, codified at 28 U.S.C. § 2201; and the Administrative Procedure Act ("APA"), codified at 5 U.S.C. § 706 et seq. (Instrument No. 1, at 1). Plaintiffs ask the Court to "compel action on Plaintiff's application for a labor certification" and to find that the Department of Homeland Security "wrongfully den[ied] Plaintiff Daniel Kazibutowski's EB-1 worker petition as a person of extraordinary ability." ( Id., at 2).Plaintiff Kazibutowski is a twenty-six year old native and citizen of Venezuela. ( Id., at 3). Kazibutowski lawfully entered the United States on a B-2 visa on or about January 22, 1999 ( Id.; Instrument No. 14, Exhibit 1). That visa expired on January 21, 2000, but Kazibutowski stayed in the United States unlawfully past the date that the visa expired. (Instrument No. 14, Exhibit 1; Instrument No. 4, at 3). Plaintiff Kazibutowski states that he has not "departed the United States since he entered in 1999 and he has been diligently working to obtain a green card." (Instrument No. 1, at 3). This case concerns Plaintiffs' almost simultaneous efforts to obtain a labor certification from the Department of Labor and an alien worker visa from the Department of Homeland Security.
A.
On November 4, 2002, the Immigration and Naturalization Service issued a Notice to Appear to Kazibutowski. (Instrument No. 14, Exhibit 1). The Notice to Appear states that Kazibutowski is ordered to appear before an Immigration Judge because Kazibutowski over-stayed his visa. ( Id.).
Eight days later, on November 12, 2002, Plaintiffs' counsel filed, on behalf of Plaintiff Kazibutowski, an I-140 Immigration Petition for Alien Worker. (Instrument No. 1, at 6). The petition was filed for "An alien of extraordinary ability." (Instrument No. 1, Exhibit 8, at 2). Kazibutowski's stated occupation on the petition was "Aircraft restoration specialist." ( Id., at 3).
On October 2, 2003, the Department of Homeland Security (the "DHS") issued a Request for Evidence to Kazibutowski, requesting that the petitioner submit at least three or more forms of evidence in support of the claim that petitioner is "`one of that small percentage who have risen to the very top of the field of endeavor.'" (Instrument No. 12, at 170). The letter from the DHS states, "The evidence submitted does not point to the beneficiary as being a person of `extraordinary ability'. Please submit evidence listed above that the beneficiary is clearly qualified for this designation." ( Id., at 171).
On December 19, 2003 — two and a half months after the DHS request for more evidence was made — Plaintiffs responded to the DHS request and provided five new exhibits in support of the DHS petition. (Instrument No. 12, at 173-221). These additional exhibits were a letter from the All Pro Director of Marketing; a "Guidelines and Recommendations" document from the Center for Disease Control ("CDC") regarding cleaning passenger airlines in the wake of the SARS (Severe Acute Respiratory Syndrome) outbreak; a print-out from a website, whose address is http://carwashguys.com, discussing how "[a]ircraft cleaning is an important component of the maintenance matrix;" an article printed on the website "Aviation Today" — at http://www.aviationtoday.com/repors/extension.htm — titled "Life Extension and Damage Tolerance of Aircraft," which Plaintiffs state "discusses life extension techniques of aircrafts and life limiting factors of aircrafts, such as external environment/corrosion. External environment/corrosion can be due to chemical compounds used in aircraft cleaning restoration;" and a Federal Aviation Administration ("FAA") Advisory Circular from 1998, titled "Guidance for Selecting Chemical Agents and Processes for Depainting and General Cleaning of Aircraft and Aviation Product," which Plaintiffs provide because "[t]here would not be federal guidance [on this topic] if aircraft cleaning was not an important field of work." ( Id.).
On January 7, 2004, the DHS issued a Notice of Decision denying Kazibutowski's Form I-140 petition. (Instrument No. 1, Exhibit 10). The DHS stated that "the evidence submitted was not sufficient to warrant a favorable decision," because the "evidence does not meet [the] criteria nor does it show that the beneficiary is one of the few who has risen to the top of the field." ( Id., at 1). In addition, the DHS stated that Kazibutowski has "failed to submit any evidence that the beneficiary will `substantially benefit the United States." ( Id., at 2).
Plaintiffs appealed the DHS decision to the Bureau of Immigration Appeals ("BIA") on January 23, 2004. (Instrument No. 1, Exhibit 11). The DHS Administrative Appeals Office later stated that the "petitioner's appeal of [the DHS] denial was improperly filed on Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of an INS Officer, and was improperly addressed to the Bureau of Immigration Appeals. The proper forum for this appeal is the Administrative Appeals Office (AAO)." (Instrument No. 1, Exhibit 13, at 2).
On March 30, 2004, Plaintiffs submitted a brief to the Administrative Appeals Office ("AAO") of the DHS in support of their appeal of the DHS denial. (Instrument No. 1, Exhibit 12). The AAO dismissed the appeal on May 12, 2004 because "[r]eview of the record . . . does not establish that the petitioner has distinguished himself as an aircraft restoration specialist to such an extent that he may be said to have achieved sustained national or international acclaim or to be within the small percentage at the very top of his field. The evidence indicates that the petitioner is skilled in aircraft cleaning and detail restoration, but is not persuasive that the petitioner's achievements set him significantly above almost all others in his field." ( Id., at 5).
On July 26, 2004, Kazibutowski was ordered deported by an Immigration Judge. (Instrument No. 1, at 9; Instrument No. 13, Exhibit 5). The Order of the Immigration Judge, William C. Peterson, stated that any appeal to the Order was due by August 25, 2004. (Instrument No. 13, Exhibit 5). Kazibutowski filed his appeal of the Immigration Judge's order on August 24, 2004. (Instrument No. 13, Exhibit 6). There is no final order of removal because this administrative appeal is pending. (Instrument No. 14, at 10).
B.
Meanwhile, on October 15, 2003, Plaintiffs filed a labor certification application with the Texas Workforce Commission (the "TWC"). (Instrument No. 1, at 4; Instrument No. 13, Exhibit 3). Plaintiffs never discuss the precise contents of the application, but it is attached to their later filings in this case. On the application, Kazibutowski's employer is listed as "All Pro Cleaning Services, Inc.," and the nature of the employer's business activity is listed as "Cleaning Services." (Instrument No. 13, Exhibit 3, at 2). The application reveals that the offer of employment for which Plaintiffs are seeking alien employment certification, however, is as a "Layout Artist" for All Pro. ( Id.). The job duties for the "Layout Artist" position are described as follows,
Designs art and copy layouts for material to be presented by visual communications media such as magazines, newspapers, and brochures. Studies illustrations and photographs to plan presentation of material, product, or services. Determines size and arrangement of illustrative material and copy, selects style and size of type, and arranges layout based upon available space, knowledge of layout principles, and esthetic design concepts. Mark up, paste, and assemble final layouts to prepare layouts for printer. Photograph layouts, using camera, to make layout prints for supervisor. Key information into computer equipment to create layouts for supervisor.
( Id.). The application states that Kazibutowski has been working for All Pro as an "Aircraft Restoration Specialist" since January 1999, and his job duties are described as follows: "Developed and implemented standards for the proper restoration of corporate aircraft interiors. Oversees design and implementation of customized programs for clients. Coordinates the work of other specialties and documents the projects through correspondence and records. Provides technical expertise in resolving restoration problems." ( Id., at 5). For "other jobs related to the occupation for which the alien is seeking certification," Plaintiffs list Kazibutowski's job as a manager at McDonald's Restaurant from March 1999 to June 2000; Kazibutowski's job as a graphics designer for a magazine and publicity company in Venezuela from March 1998 to January 1999; and Kazibutowski's job as a graphics designer for a design and printing company in Venezuela from October 1995 to January 1999. ( Id., at 5-6). In the education and training portion of the application, Plaintiffs list a high school that Kazibutowski attended from 1995 to 1997, a primary school he attended from 1987 to 1994, and a "basic school" he attended from 1982 to 1987. ( Id., at 4). Under "Degrees or Certificates Received," instead of listing the degrees, Plaintiffs stated "Yes" beside each of these three schools. ( Id.).
Plaintiffs also submitted to the TWC a copy of the advertisement that All Pro ran for the "Lay-out artist" job opening, which was posted from September 24, 2003 to October 8, 2003 and produced no responses. (Instrument No. 13, Exhibit 3, at 7-9). The job description is, "Layout artist for small co., doing its ads, brochures, promo, etc." ( Id., at 7).
On February 17, 2004, four months after filing the application, Plaintiffs' counsel requested that the TWC expedite Kazibutowski's case, because Kazibutowski was in deportation proceedings. (Instrument No. 1, at 4). The request was denied on March 1, 2004. ( Id.). On March 4, 2004, the TWC contacted All Pro to inform Kazibutowski's employer that the application for Kazibutowski had been transmitted to Enterject, Inc. for processing. ( Id., Exhibit 4). Enterject, Inc. is a private vendor who the Texas Workforce Commission used to expedite processing of applications. ( Id.).
On August 3, 2004, Plaintiffs' counsel contacted Defendant Jenny Elser, Certifying Officer of the United States Department of Labor, and requested "any assistance that could be given to processing this case, so that [Kazibutowski could] try to avoid deportation while he has a clearly approvable case." (Instrument No. 1, Exhibit 5). Plaintiffs' counsel noted that "there is no policy regarding expediting such cases" but stated that Plaintiffs would appreciate the assistance. ( Id.). Then, on August 17, 2004, counsel wrote to the TWC requesting assistance in expediting processing of Kazibutowski's case "so that he can try to avoid deportation while he has a clearly approvable case." ( Id., Exhibit 6). Counsel sent a similar letter to Enterject, Inc. that same day. ( Id., Exhibit 7).
On October 26, 2004, the TWC wrote to Plaintiffs' counsel stating that the TWC was "in receipt of [counsel's] letter of October 12, 2004, including a draft petition concerning a potential lawsuit [counsel is] considering filing on behalf of Mr. Daniel Kazibutowski due to [counsel's] perception of a delay in processing of Mr. Kazibutowski's alien labor certification (ALC) application." (Instrument No. 1, Exhibit 7A). The letter from the TWC states, further, that Enterject, Inc. completed the processing of the application on October 22, 2004 and that the application had been forwarded from the TWC to the United States Department of Labor on October 25, 2004. ( Id.).
While Plaintiffs attach to their complaint the letter from the TWC, they do not attach the letter and draft petition sent to the TWC. Nor is that letter present in the administrative record.
On December 15, 2004, the Department of Labor's Backlog Processing Center sent Plaintiffs a "Center Receipt Notification Letter," alerting Plaintiffs that the "Application for Alien Employment Certification (ETA 750) that [they] submitted on October 14, 2003 has been forwarded to this Backlog Processing Center." (Instrument No. 14, Exhibit 3). The letter stated that Plaintiffs must "respond to each of the items listed on the enclosed Corrections List in order to continue processing of [their] application." ( Id.). The responses were due January 31, 2005. ( Id.). Plaintiffs submitted the requested response on December 28, 2004. (Instrument No. 14, Exhibit 4). The response was received by the Department of Labor on January 3, 2005. (Instrument No. 14, at 2). Defendants admit that, as of June 30, 2005, Plaintiffs' application was still in the line of applicants. ( Id.).
C.
Plaintiffs filed their Original Complaint and Request for Preliminary Mandatory Injunction (Instrument No. 1) on January 26, 2005. Plaintiffs bring suit under the Mandamus Act, the Declaratory Judgment Act, and the Administrative Procedure Act. ( Id., at 1). Plaintiffs seek relief from the Court to "compel action on Plaintiffs' application for a labor certification" with the Department of Labor and for relief from the DHS's allegedly wrongful denial of Kazibutowski's "worker petition as a person of extraordinary ability." ( Id., at 2).First, Plaintiffs seek a preliminary mandatory injunction from the Court to compel the Department of Labor to "immediately finish adjudicating Plaintiffs' RIR labor certification application." ( Id., at 10). Second, under the Mandamus Act, Plaintiffs seek "a writ of mandamus commanding the [DOL] to immediately finish adjudicating Plaintiffs' RIR labor certification application." ( Id., at 12). Third, pursuant to the Administrative Procedure Act, Plaintiffs seek "an affirmative injunction commanding the [DOL] to immediately finish adjudicating Plaintiffs' RIR labor certification application." ( Id.). Fourth, pursuant to the Declaratory Judgment Act, "Plaintiffs seek a declaratory judgment that Plaintiffs are entitled to have the RIR labor certification application immediately adjudicated because the [DOL] have failed to finish adjudicating Plaintiffs' RIR labor certification application within a reasonable time." ( Id.). Finally, Plaintiff request that, pursuant to the Declaratory Judgment Act and the Administrative Procedure Act, the Court "hold unlawful and set aside Defendant Department of Homeland Security's dismissal of Plaintiff Kazibutowski's appeal of the denial of his I-140 Petition for Alien Worker as an alien of extraordinary ability." ( Id., at 12-13). Plaintiff Kazibutowski seeks a declaratory judgment and ruling from the Court stating that the DHS dismissal of his appeal "was arbitrary, capricious, erroneous, invalid, unauthorized, an abuse of discretion and not in accordance with law." ( Id., at 13).
Defendants filed an Answer and Affirmative Defenses (Instrument No. 4) on April 6, 2005. As affirmative defenses, Defendants assert that the complaint, in whole or in part fails to state a claim upon which relief can be granted; that the Court lacks subject matter jurisdiction over the complaint in whole or in part; and that the complaint names improper party defendants. ( Id., at 10). The Court denied Plaintiffs' request for preliminary mandatory injunction by Order, dated April 28, 2005. (Instrument No. 7).
Plaintiffs filed a Motion for Summary Judgment and Request for Oral Argument (Instrument No. 13) on June 28, 2005. Plaintiffs argue that the Court should order the DOL to finish Plaintiffs' labor certification case, "which has been pending for almost two years," because then Kazibutowski "will be eligible for a green card and his deportation will likely be cancelled." ( Id., at 1). Plaintiffs contend that, if Kazibutowski is deported to Venezuela, his three year old, American-born daughter "would live with him in Venezuela and she and Kazibutowski would be deprived of their life in the United States." ( Id.). Plaintiffs claim that Kazibutowski "will likely be deported unless the Court orders the Department of Labor to immediately finish adjudicating Kazibutowski's labor certification application." ( Id.). Essentially, Plaintiffs argue that the DOL's delay in adjudicating Kazibutowski's labor certification application is unreasonable. ( Id., at 3).
Plaintiffs do no more than request in the Conclusion that the Court "schedule oral argument." (Instrument No. 13, at 13). Plaintiffs offer no argument explaining the need for any oral argument on this motion.
Plaintiffs also assert that the Court should "reverse the Department of Homeland Security's denial of Kazibutowski's I-140 visa petition because the Department of Homeland Security misstated the law when it denied Kazibutowski's I-140 visa petition." ( Id., at 2). Plaintiffs argue that the "AAO abused its discretion in ruling that Kazibutowski did not satisfy at least three of the criteria listed in 8 C.F.R. § 204.5(h)(3)." ( Id., at 9). Plaintiffs claim that Kazibutowski satisfied the criteria listed in §§ 204.5(h)(3)(i), (iv), and (viii). ( Id.). In addition, Plaintiffs argue that the AAO misstated the law because "a petitioner is not required to satisfy at least three of the criteria listed in 8 C.F.R. § 204.5(h)(3) since 8 C.F.R. § 204.5(h)(4) states: `If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.'" ( Id., at 7). This latter argument, relying on § 204.5(h)(4), is a new argument that Plaintiffs did not articulate in their original complaint; that section of the Code of Federal Regulations is not mentioned anywhere in the complaint. (Instrument No. 1).
Defendants filed their own Motion for Summary Judgment (Instrument No. 14) on June 30, 2005. Defendants argue that the Court should not order the Department of Labor to adjudicate the application immediately because Plaintiffs cannot show that Defendants acted egregiously or unreasonably. ( Id., at 4). Defendants argue that "there is a national backlog of labor certification cases," and that this "permanent case backlog started back in 1997, and was a result of numerous factors such as reduced funding, changes in immigration law, increased permanent labor certification applications as well as other types of applications DOL must handle, some of which other applications by law had to be acted on within a very short time frame." ( Id., at 2-3). Defendants contend that various measures are being taken to eliminate the backlog, such as the creation of backlog centers, and that certification applications are being handled in order of their "priority dates." ( Id., at 3).
Defendants point out that All Pro did not file a labor certification application for Kazibutowski until October 14, 2003, three years and nine months after Kazibutowski's visa had expired. ( Id., at 10). Defendants argue, "Plaintiffs should not be heard to ask to be put to the front of the DOL line because Kazibutowski has made the decision to be in this country unlawfully." ( Id.). Defendants claim that "Granting relief in the instant case would effectively change DOL's policy of `first come, first served,' to `first into court, first out of the agency.'" ( Id.) (citation removed). Defendants contend that the delay in adjudicating the Plaintiffs' application is reasonable when the totality of circumstances are considered and that "the Court should refrain from interfering with DOL's real and immediate efforts to eliminate that backlog that built up when the number of applicants far exceeded the available DOL resources." ( Id.).
Defendants also argue that the AAO properly upheld the DHS's decision to deny the petition for an immigrant worker submitted by Plaintiffs. ( Id.). Defendants contend that the Court's "task in reviewing the decision of the AAO is very limited" and that the Court "may only set aside the AAO's decision if that decision is found to be `arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law." ( Id., at 12). Defendants argue that Plaintiffs cannot prove that the AAO decision was either arbitrary, capricious, or an abuse of discretion, nor can Plaintiffs prove that the decision was not in accordance with law. ( Id.). Defendants, therefore, seek summary judgment and dismissal of the case. ( Id., at 15). Defendants do not assert any of the affirmative defenses listed in their Answer in arguing for summary judgment of this case.
Plaintiffs filed a Response to Defendants' Motion for Summary Judgment (Instrument No. 15) on July 15, 2005. In the response, the Plaintiffs focus on the Defendants' failure to "address 8 C.F.R. § 204.5(h)(4)" and also Defendants' failure to address the AAO's own failure to consider that same section of the Code of Federal Regulations. ( Id., at 1, 4). Plaintiffs also argue that the "harm that Kazibutowski will suffer makes the Department of Labor's delay unreasonable." ( Id., at 3). Plaintiffs state that Kazibutowski will be deported, so that he and his young daughter will have to leave the country; Defendants argue that this harm fits the principle that delays may be considered "`altogether unreasonable in the sphere of economic regulation . . . when human lives are at stake.'" ( Id.) (quoting Cutler v. Hayes, 818 F.2d 879, 898 (D.C. Cir. 1987)).
Also on July 15, 2005, Defendants filed their Reply in Support of Motion for Summary Judgment and in Opposition to Plaintiffs' Cross Motion for Summary Judgment (Instrument No. 16). First, Defendants argue that "Plaintiffs' argument that the Department of Labor has acted egregiously and unreasonably because Kazibutowski may be deported in the future is contrary to law and fact." ( Id., at 1). Defendants state, "Plaintiffs ignore well-settled law that claims of agency delay must be evaluated in light of the totality of the circumstances, such as why agency delay exists if it does and what the agency is doing about it, whether relief would be unfair to others waiting for agency action, whether the alleged harm is self-imposed, and whether public health or welfare is at issue." ( Id.).
Despite titling this filing as a "Reply," the brief was filed on the same day as Plaintiffs' Response and is more accurately considered a responsive pleading to Plaintiffs' motion. In order to avoid confusion, however, the Court will refer to the July 15, 2005 filing by the Defendants as their "Reply."
Second, Defendants argue that "[n]o mention was made anywhere in the complaint that the AAO erred because it failed to consider . . . 8 C.F.R. § 204.5(h)(4)." ( Id., at 5). Defendants contend that Plaintiffs should have amended their pleading either before Defendants answered or with leave of court, but that no request to do so was ever made. ( Id.). Defendants argue, therefore, that the argument should not be considered by the Court on summary judgment or, in the alternative, that Defendants should be allowed time to respond to the argument on its merits. ( Id., at 5-6). Finally, Defendants reassert their argument that the AAO properly denied Plaintiffs' application and that Plaintiffs cannot prove that the AAO's decision was arbitrary, capricious, an abuse of discretion, or in violation of law. ( Id., at 7).
II.
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also United States v. Arron, 954 F.2d 249, 251 (5th Cir. 1992). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248. If the evidence rebutting the motion for summary judgment is only colorable or is not significantly probative, summary judgment should be granted. See Id. at 2511; see also Thomas v. Barton Lodge, Ltd., 174 F.3d 636, 644 (5th Cir. 1999). The summary judgment procedure, therefore, enables a party "who believes there is no genuine issue as to a specific fact essential to the other side's case to demand at least one sworn averment of that [specific] fact before the lengthy process continues." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 886-88 (1990).Under Rule 56(c), the moving party bears the initial burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial and of identifying those portions of the record that demonstrate such absence. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 576, 586-87 (1986); see also Burge v. Parish of St. Tammany, 187 F.3d 452, 464 (5th Cir. 1999).
Where the moving party has met its Rule 56(c) burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 586-87 (quoting FED. R. CIV. P. 56(e)) (emphasis in original). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Engstrom v. First Nat'l Bank, 47 F.3d 1459, 1462 (5th Cir. 1995). To sustain the burden, the nonmoving party must produce evidence admissible at trial. See Anderson, 477 U.S. at 242; see also Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992) ("To avoid a summary judgment, the nonmoving party must adduce admissible evidence which creates a fact issue.").
The Court reviews the facts in the light most favorable to the nonmovant and draws all reasonable inferences in favor of the nonmovant. See Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir. 2000). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.
III.
This case concerns two basic issues. The first is whether the Court should find, pursuant to the Declaratory Judgment Act and the Administrative Procedure Act, that the Department of Homeland Security and the Administrative Appeals Office unlawfully denied Plaintiffs' petition and that the denial was "arbitrary, capricious, erroneous, invalid, unauthorized, an abuse of discretion and not in accordance with law." (Instrument No. 1, at 13). The second issue is whether the Court, pursuant to the Mandamus Act, the Administrative Procedure Act, and the Declaratory Judgment Act, should compel the Department of Labor to adjudicate Plaintiffs' application.
A.
The Plaintiffs argue that the Court should set aside the DHS and AAO denials of Plaintiffs' Form I-140 petition as an alien of extraordinary ability. Plaintiffs assert that the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative Procedure Act, 5 U.S.C. § 706, entitle the Court to take this action. (Instrument No. 1, at 12).The Declaratory Judgment Act provides that, "[i]n a case of actual controversy with in its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C.A. § 2201. The Administrative Procedure Act ("APA") provides,
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The review court shall —
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be —
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 ofthis title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.5 U.S.C.A. § 706. Plaintiffs do not specify under which subsection of the APA they state their claim, however Plaintiffs' only arguments with regard to this issue rely on the Court's finding that the DHS and AAO denied the petition in a manner that was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (Instrument No. 1, at 13). Accordingly, the Court finds that the Plaintiffs seek relief under § 706(2)(A).
In reviewing an agency decision under § 706(2)(A), "a court is not to substitute its judgment for that of the agency" or "supply a reasoned basis for the agency's action that the agency itself has not given." Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29, 43 (1983) (internal quotation marks and citations omitted). The Court "will find an agency action arbitrary and capricious `if the agency has relied on factors which Congress not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" La. Entl. Action Network v. United States E.P.A., 382 F.3d 575, 582 (5th Cir. 2004) (quoting Tex. Oil Gas Ass'n v. EPA, 161 F.3d 923, 934 (5th Cir. 1998)). The Court, therefore, limits the scope of its inquiry "to determining if the agency's judgment conforms to minimum standards of rationality — whether the agency action `bears a rational relationship to the statutory purposes' and is there `substantial evidence in the record to support it.'" Id.
The DHS denied Plaintiffs' petition seeking classification of Kazibutowski as "an employment based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act . . ., 8 U.S.C. § 1153(b)(1)(A), as an alien of extraordinary ability in business." (Instrument No. 12, at 85). Under this subparagraph, a petitioner must be found to be an alien of extraordinary ability. 8 U.S.C. § 1153(b)(1)(A). The subparagraph provides,
(A) Aliens with extraordinary ability
An alien is described in this subparagraph if —
(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and
(iii) the alien's entry into the United States will substantially benefit prospectively the United States.Id. A petition under this section is further governed by § 204.5 of Title 8 of the Code of Federal Regulations. Section 204.5(h)(3) states that the petition "must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, international recognized award), or at least three of the following [ten options.]" 8 C.F.R. § 204.5(h)(3). In Plaintiffs' petition the provided evidence intended to support §§ 204.5(h)(3)(i), (iv), and (viii). (Instrument No. 12, at 106-07).
Section 204.5(h)(3)(i) requires "Documentation of the alien's receipt of lesser nationally and internationally recognized prizes or awards for excellence in the field of endeavor." 8 C.F.R. § 204.5(h)(3)(i). In support of this subsection, Plaintiffs submitted proof that Kazibutowski had received an Employee of the Year award from All Pro in 2001 "for his excellent leadership and outstanding performance in Aircraft Restoration' and an Employee of the Month award from All Pro for the month of April 2001. (Instrument No. 12, at 144-45). After the DHS issued its request for more evidence ( Id., at 170), Plaintiffs did not bolster the evidence under this section and only re-listed the previously submitted evidence ( Id., at 179). The DHS determined that this submitted evidence "only points to work related awards. This evidence does not meet [the required] criteria nor does it show that the beneficiary is one of the few who has risen to the top of the field." ( Id., at 93).
Plaintiffs argue that the DHS erred in this determination, using the following reasoning:
All Pro Cleaning Services is listed in the Houston Business Journal as one of the top twenty maintenance companies in Houston in number of staff and earnings. Therefore, Kazibutowski's Employee of the Year award from All Pro Cleaning Services, is a less nationally recognized award in the field of aircraft restoration, given that Houston is the fourth largest city in the United States. Thus, Kazibutowski satisfies § 204.5(h)(3)(i), especially since his Employee of the Year award was for excellent leadership and outstanding performance as Director of Aircraft Restoration Division.
(Instrument No. 13, at 10) (internal citations and quotations omitted). This argument is specious at best. In addition, Plaintiffs never provide any proof of All Pro's listing in the Houston Business Journal, so the argument is also lacking in evidentiary support. After considering the evidence in the administrative record and the arguments of the parties, the Court finds that the DHS's determination meets the minimum standards of rationality and is supported by substantial evidence. La. Entl. Action Network, 382 F.3d at 582.
Section 204.5(h)(3)(iv) requires "Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought." 8 C.F.R. § 204.5(h)(3)(iv). In support of this subsection, Plaintiffs provided a copy of the All Pro Employee Training Manual, which Kazibutowski "designed for training of other aircraft restoration specialists;" a copy of the All Pro Employee Test that Kazibutowski "designed to judge the knowledge of other aircraft restoration specialists;" and a letter from the Director of Marketing at All Pro, stating that Kazibutowski "designed All-Pro Cleaning's program which utilizes specialized procedures, material and equipment; compliance with FAA regulations, along with safety and security programs." (Instrument No. 12, at 107). The DHS determined that this evidence only shows that "the beneficiary was involved mainly in Employee Training. However, this fails to adequately address that the beneficiary was actually a judge as defined by this criteria." ( Id., at 93).
Plaintiffs argue that the DHS determination was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law because Plaintiffs had provided evidence that Kazibutowski "judged `six restoration specialists in the performance of their duties."' (Instrument No. 13, at 10) (quoting Instrument No. 12, at 45). Plaintiffs, here, refer to the letter from the Director of Marketing, who stated that Kazibutowski's achievements included, "Successfully managing a team of six restoration specialists in the performance of their duties." (Instrument No. 12, at 45) (emphasis added). This statement does not support a finding that Kazibutowski served as a judge of the work of others.
In addition, Plaintiffs rely on Buletini v. I.N.S., 860 F. Supp. 1222, 1230 (E.D. Mich. 1994), for the argument that the DHS erred because there is no requirement included in this subsection that the alien also demonstrate that such participation, as a judge, was the result of his having extraordinary ability. (Instrument No. 13, at 11). Buletini is not binding on this Court. Moreover, Buletini also concerned a plaintiff who had served as a chairman of a medical council that was responsible for "judging the work of all doctors engaged in" the research and scientific work that was done at the hospital for which he worked. 860 F. Supp. at 1230. The case, therefore, is easily distinguished from the Plaintiffs' case. Therefore, based on the evidence in the administrative record and the arguments of the parties, the Court finds that the DHS's determination meets the minimum standards of rationality and is supported by substantial evidence. La. Entl. Action Network, 382 F.3d at 582.
Finally, § 204.5(h)(3)(viii) requires "Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation." 8 C.F.R. § 204.5(h)(3)(viii). In support of this requirement, Plaintiffs provide six letters: (1) the same letter from the Director of Marketing for All Pro, in support of Kazibutowski's leading role at All Pro; (2) a letter from the President of All Pro, in support of Kazibutowski's leading role at All Pro; (3) a letter from the President of Houston Air Service Interiors, in support of Kazibutowski's extraordinary ability in the field of aircraft detail restoration; (4) a letter from the Owner and President of IFP Corporation, in support of Kazibutowski's extraordinary ability in the field of aircraft detail restoration; (5) a letter from the Chief of Maintenance from Pennzoil Quaker State Company, stating Pennzoil's high regard for Kazibutowski's job skills; and (6) a letter from the Chief of Maintenance at Enron Corporation, attesting to Kazibutowski's excellent character and professionalism in his work. (Instrument No. 12, at 106). The DHS determined that "the evidence submitted does not point that the beneficiary actually played a critical role." ( Id., at 93). In addition, the AAO determined that "[t]wo statements from customers satisfied with the petitioner's performance do not establish that the company has a distinguished reputation." ( Id., at 86).
Plaintiffs argue that the DHS erred in this determination and restates the "evidence" from the submitted letters. (Instrument No. 13, at 12-13). The Court, however, having read the letters, cannot find that the DHS acted arbitrarily, capriciously, in an abuse of discretion, or otherwise not in accordance with law. Based on the evidence in the administrative record and the arguments of the parties, the Court finds that the DHS's determination meets the minimum standards of rationality and is supported by substantial evidence. La. Entl. Action Network, 382 F.3d at 582.
The AAO found that a review of the record "does not establish that the petitioner has distinguished himself as an aircraft restoration specialist to such an extent that he may be said to have achieved sustained national or international acclaim or to be within the small percentage at the very top of his field. The evidence indicates that the petitioner is skilled in aircraft cleaning and detail restoration, but is not persuasive that the petitioner's achievements set him significantly above almost all others in his field." (Instrument No. 12, at 86). The Court sees no arbitrary or capricious element in this determination, based on the evidence in the administrative record.
Finally, Plaintiffs assert arguments, in their motion for summary judgment, pursuant to § 204.5(h)(4). (Instrument No. 13, at 7). The Defendants are correct that these arguments were not pled in the complaint. However, even if the arguments had been properly pled, they would be unavailing.
Plaintiffs argues that the AAO failed to consider § 204.5(h)(4) and that the AAO's decision does not discuss whether Kazibutowski met the requirements of that section. (Instrument No. 13, at 7-8). Section 204.5(h)(4) states, "If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility." 8 C.F.R. § 204.5(h)(4). The DHS opinion stated, "Moreover, under 8 CFR 204.5, if the above standards don't readily apply to the beneficiary occupation then the petitioner may submit comparable evidence to establish the beneficiaries [sic] eligibility. This comparable evidence, if submitted, must show that 1) the beneficiary will work in the area of expertise and 2) will substantially benefit the prospectively the United States [ sic]." (Instrument No. 12, at 94) (emphasis added). While the DHS opinion does not specify that this language refers to § 204.5(h)(4), the Court finds the reference to be clear. The DHS concluded that Plaintiffs "failed to submit any evidence that the beneficiary will `substantially benefit the United States.'" ( Id.). Therefore, the DHS did address this subsection of the regulations.
Then, when Plaintiffs appealed the DHS decision to the AAO, their appellate brief never mentioned § 204.5(h)(4). (Instrument No. 12, 6-15). It is, therefore, no surprise that the AAO's decision did not address that subsection either. Even if Plaintiffs had properly brought this claim in their complaint, therefore, it would have failed. The Plaintiffs cannot gain relief for the AAO's "failure" to discuss a regulatory subsection in its appellate decision when the Plaintiffs themselves failed to raise the issue on appeal.
Accordingly, the Plaintiffs' claim that the Court should set aside the DHS and AAO denials of Plaintiffs' Form I-140 petition as an alien of extraordinary ability, pursuant to the Declaratory Judgment Act and the Administrative Procedure Act, must fail. The DHS and AAO denials meet the minimum standards of rationality and are supported by substantial evidence. La. Entl. Action Network, 382 F.3d at 582. The Plaintiffs' motion for summary judgment on this claim is DENIED; the Defendants' motion for summary judgment on this claim is GRANTED.
B.
The second issue for the Court's consideration is whether the Court, pursuant to the Mandamus Act, the Administrative Procedure Act, and the Declaratory Judgment Act, should compel the Department of Labor to adjudicate Plaintiffs' application. The Mandamus Act provides, "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States of any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. "Mandamus is an appropriate remedy `only when the plaintiff's "claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt."' Thus mandamus is not available to review the discretionary acts of officials." Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992) (citing Nova Stylings, Inc. v. Ladd, 695 F.2d 1179 (9th Cir. 1983)).
The applicable section of the APA provides as follows,
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The review court shall —
(1) compel agency action unlawfully withheld or unreasonably delayed . . . 5 U.S.C. § 706. Under this section of the Code, "the only agency action that can be compelled . . . is action legally required." Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S. Ct. 2373, 2378 (2004). In addition to showing unreasonable delay, relief under § 706(1) requires "a showing of prejudice before agency action can be set aside for its lack of punctuality." King v. Nat'l Transp. Safety Bd., 766 F.2d 200, 202 (5th Cir. 1985).
Plaintiffs claim, " 20 C.F.R. § 656.24(b) states that the Department of Labor `shall make a determination either to grant the labor certification or to issue a Notice of Findings. . . .' The Department of Labor has failed to do this." (Instrument No. 13, at 4). This language, however, does not appear in 20 C.F.R. § 656.24(b); nor does it appear anywhere in the Code of Federal Regulations. The Court, therefore, is not certain from whence it came. Nevertheless, the Court will address the concern that the DOL has unreasonably delayed in ruling on Plaintiffs' application because the Immigration and Nationality Act ("INA") establishes the DOL's role in the alien permanent labor certification process. 8 U.S.C. § 1182(a)(5)(A). The DOL has adopted regulations that create a process by which to fulfill its obligations under the INA. 20 C.F.R. 656.20 et seq.
The Fifth Circuit has not delineated under what circumstances relief should be granted pursuant to 5 U.S.C. § 706(1), nor has the Circuit defined or stated a standard for "unreasonably delayed." A survey of other circuits, however, reveals that action under § 706(1) is considered "an extraordinary remedy." Qwest Communications Intern., Inc. v. F.C.C., 398 F.3d 1222, 1238-39 (10th Cir. 2005). Under the law of other D.C. Circuit, which has also been adopted by the Third Circuit,
First, "the court should ascertain the length of time that has elapsed since the agency came under a duty to act; ". . . Second, "the reasonableness of the delay must be judged `in the context of the statute' which authorizes the agency's action." . . . Third, the court must examine the consequences of the agency's delay. . . . Finally, the court should give due consideration in the balance to "any plea of administrative error, administrative convenience, practical difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources."In re Int'l Chemical Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992); see Oil, Chemical Atomic Workers Union v. Occupational Safety Health Admin., 145 F.3d 120, 123 (3d Cir. 1998). This analysis is "fact-intensive," and the Court must "begin a discussion of agency action, or inaction, by affording the agency `considerable deference in establishing a timetable for completing its proceedings.'" Oil, Chemical, 145 F.3d at 123 (citing Cutler v. Hayes, 818 F.2d 879, 896 (D.C. Cir. 1987)).
Plaintiffs filed the application with the Texas Workforce Commission on October 14, 2003. The TWC forwarded the case on to the DOL on October 25, 2004. The DOL Backlog Processing Center requested more information from Plaintiffs on December 15, 2004, and Plaintiffs provided that information on January 3, 2005. Accordingly, the Court finds that the length of time that has elapsed since the DOL came under the duty to act is approximately ten months — from October 25, 2004 to the present. The DOL did not have the application until October 25, 2004, so the Court cannot hold it to a duty prior to that time. In addition, the DOL is the Defendant in this case, not the Texas Workforce Commission. "Although there is no per se rule as to how long is too long, `inordinate agency delay would frustrate congressional intent by forcing a breakdown of regulatory processes.'" Int'l Chemical Workers, 958 F.2d at 1149 (citing Cutler v. Hayes, 818 F.2d 879, 897 (D.C. Cir. 1987)). The Court does not think that ten months qualifies as inordinate agency delay that frustrates congressional intent.
Second, the Court considers the reasonableness of the delay "in the context of the statute." Int'l Chemical Workers, 958 F.2d at 1149. There, however, is no clear relationship between delay and 8 U.S.C. § 1182. Unlike other cases in which this analysis has been performed, § 1182 was not "designed to help rectify the government's longstanding failure" in delaying. See Cobell v. Norton, 240 F.3d 1081, 1096 (D.C. Cir. 2001). There is, with regard to this statute, no "Congressional mandate" tying the statute to a concern for delay. See Oil, Chemical, 145 F.3d at 124; Sierra Club v. Thomas, 828 F.2d 783, 797 (D.C. Cir. 1987). This factor of the analysis weighs, if any way, in favor of deferring to the agency's discretion.
Third, the Court examines the consequences of the agency's delay. Plaintiffs argue that "Kazibutowski will likely be deported unless the Court orders the Department of Labor to immediately finish adjudicating Kazibutowski's labor certification application." (Instrument No. 13, at 1). Plaintiffs also claim that the "harm that Kazibutowski would suffer as a result of the [DOL's] delay in adjudicating his labor certification application is an additional reason why the [DOL's] delay is unreasonable. `[D]elays that might be altogether reasonable in the sphere of economic regulation are less tolerable when human lives are at stake.'" ( Id., at 6) (citing Cutler, 818 F.2d at 898).
Indeed, as the Third Circuit noted, "It is certainly true that `[d]elays that might be altogether reasonable in the sphere of economic regulation are less tolerable when human lives are at stake.' This presupposes, however, that the evidence before the agency sufficiently demonstrates that delay will in fact adversely affect human health to a degree which necessitates a priority response." Oil, Chemical, 145 F.3d at 123 (citing Cutler, 818 F.2d at 889) (internal citations omitted). This concern for human lives anticipates mortal threats to human life, not deportation. Moreover, Kazibutowski has provided no argument explaining why deportation is the equivalent of his life being at stake. The only evidence before this Court is that Kazibutowski held at least two graphic artist positions with employers in Venezuela. (Instrument No. 13, Exhibit 3, at 5-6). There is no claim, let alone evidence, of danger or any other threat. In addition, Kazibutowski's deportation is not a result of the DOL's delay, it is the result of Kazibutowski's having stayed unlawfully in the United States after his visa expired in January of 2000, more than five years ago.
Finally, the Court considers any plea of administrative error, administrative convenience, practical difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources. Int'l Chemical Workers, 958 F.2d at 1149. Defendants argue that "there is a national backlog of labor certification cases," and that this "permanent case backlog started back in 1997, and was a result of numerous factors such as reduced funding, changes in immigration law, increased permanent labor certification applications as well as other types of applications DOL must handle, some of which other applications by law had to be acted on within a very short time frame." (Instrument No. 14, at 2-3). Defendants contend that various measures are being taken to eliminate the backlog, such as the creation of backlog centers, and that certification applications are being handled in order of their "priority dates." ( Id., at 3). In support of these contentions, Defendants present the Declaration of William Carlson, the Director of Foreign Labor Certification for the DOL. (Instrument No. 14, Exhibit 5). The Court finds that this element of the analysis, too, weighs in favor of deferring to the DOL's discretion.
Accordingly, the Court finds that the DOL has not delayed unreasonably in adjudicating Plaintiffs' application. The Plaintiffs' claim under the Administrative Procedure Act must, therefore, fail. Without finding that relief is appropriate under the APA, the Court cannot then find that Mandamus is an appropriate remedy, because Plaintiffs' claim is not "clear and certain" and the duty of the officer is not "ministerial and so plainly prescribed as to be free from doubt." Giddings, 979 F.2d at 1108. Therefore, the Mandamus Act offers no relief on this claim. Nor does the Declaratory Judgment Act lead the Court to declare that Plaintiffs are entitled to having the labor certification application immediately adjudicated. Summary judgment is, therefore, appropriate on this claim.
IV.
Based on the foregoing, Plaintiffs' Motion for Summary Judgment and Request for Oral Argument (Instrument No. 13) is DENIED; and Defendants' Motion for Summary Judgment (Instrument No. 14) is GRANTED.The Clerk shall enter this Order and provide a copy to all parties.