BENJAMIN C. MIZER Principal Deputy Assistant...

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BENJAMIN C. MIZER Principal Deputy Assistant Attorney General Civil Division

WILLIAM C. PEACHEY Director

GLENN M. GIRDHARRY Assistant Director

HEATHER SOKOLOWER Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section PO Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 532-4329 Fax: (202) 305-7000

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE TERRITORY OF GUAM

Guam Contractors Association, et al.,

Plaintiffs-Petitioners,

vs.

Loretta E. Lynch, Attorney General of the United States, et al.,

Defendants-Respondents.

CIVIL CASE NO. 16-00075

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT UNDER FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) AND 12(b)(6)

Case 1:16-cv-00075 Document 31 Filed 01/07/17 of 40

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TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1

STATUTORY AND REGULATORY BACKGROUND .............................................................. 2

STANDARDS OF REVIEW .......................................................................................................... 6

I. Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ..................................................... 6

II. Review of Agency Action Under The APA ..................................................................... 8

ARGUMENT .................................................................................................................................. 9

I. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Claims ................................ 9

Plaintiffs May Only Challenge Discrete, Identifiable USCIS Decisions ..................... 9

Plaintiffs’ Claims Fail to Challenge Discrete Agency Action .................................... 10

II. The Court May Also Dismiss Plaintiffs’ Claims In Their Entirety Under Federal Rule

Of Civil Procedure 12(B)(6) ..................................................................................................... 14

Plaintiffs’ Claims Fail To Comply With Rule 8’s Pleading Standards ...................... 14

Plaintiffs Fail to State a Cognizable Claim For Relief Under The APA .................... 17

Plaintiffs Fail To State A Claim for Equitable Estoppel ............................................ 32

Attorney General Loretta Lynch Is Not Properly Named As a Defendant ................ 32

CONCLUSION ............................................................................................................................. 33


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TABLE OF AUTHORITIES

Cases

Alabama-Coushatta Tribe of Texas v. United States, 757 F.3d 484 (5th Cir. 2014) .................................................................................................... 11

Alaska Professional Hunters Ass'n, Inc. v. F.A.A., 177 F.3d 1030 (D.C. Cir. 1999) .......................................................................................... 28, 29

Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84 (D.D.C. 2000) ............................................................................................ 14

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................................ 7, 21, 30

Ass’n of Am. Med. Coll. v. United States, 217 F.3d 770 (9th Cir. 2000) ...................................................................................................... 7

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) ...................................................................................................... 7

Bautista v. Los Angeles Cty., 216 F.3d 837 (9th Cir. 2000) .................................................................................................... 15

Bennett v. Spear, 520 U.S. 154 (1997) .................................................................................................................. 31

Bhasin v. United States Dep't of Homeland Sec., 413 Fed. Appx. 983 (9th Cir. 2011) .......................................................................................... 31

Boi Na Braza Atlanta, LLC v. Upchurch, No. 04–CV–2007–L, 2005 WL 2372846 (N.D. Tex. Sept. 27, 2005) ...................................... 22

Bonneville Power, 477 F.3d 668 (9th Cir. 2007) ...................................................................................................... 8

Bowman Transp., Inc. v. Arkansas–Best Freight System, Inc., 419 U.S. 281 (1974) ................................................................................................................ 8, 9

Church v. United States, Case No. 12-CV-3990, 2013 WL 12064271 (C.D. Cal. May 15, 2013) .................................. 31

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .................................................................................................................. 16

Colo. Farm Bureau Fed’n v. U.S. Forest Serv., 220 F.3d 1171 (10th Cir. 2000) .......................................................................................... 12, 15

Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005) .................................................................................................. 15

Devon Energy Corp. v. Kempthorne, 551 F.3d 1030 (D.C. Cir. 2008) ................................................................................................ 28


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Dridi v. Chertoff, 412 F. Supp. 2d 465 (E.D. Pa. 2005) ........................................................................................ 31

Encino Motorcars v. Navarro, 136 S.Ct. 2117........................................................................................................................... 29

Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868 (11th Cir. 2009) .................................................................................................. 12

Fogo De Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127 (D.C. Cir. 2014) .......................................................................................... 20, 28

Friends of Animals v. Ashe, 174 F. Supp. 3d 20 (D.D.C. 2016) ............................................................................................ 13

Fund for Animals v. BLM, 357 F. Supp. 2d 225, (D.D.C. 2004) ......................................................................................... 14

Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923 (9th Cir. 2010) .................................................................................................... 18

Hong Wang v. Chertoff, 550 F. Supp. 2d 1253 (W.D. Wash. 2008) ................................................................................ 33

IKEA US, Inc. v. Department of Justice, 48 F.Supp.2d 22 (D.D.C.1999) ................................................................................................. 27

Jaa v. I.N.S., 779 F.2d 569 (9th Cir. 1986) .................................................................................................... 32

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994) .................................................................................................................... 7

La Reunion Francaise SA v. Barnes, 247 F.3d 1022 (9th Cir. 2001) .................................................................................................... 7

Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) .................................................................................................... 7

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ........................................................................................................... passim

Matter of Artee Corp., 18 I. & N. Dec. 366 (1982) ......................................................................................................... 5

Matter of Contopoulous, 10 I. & N. Dec 654 (1964) .......................................................................................................... 5

Matter of Golden Dragon Chinese Restaurant, 19 I. & N. Dec. 238 (Comm’r 1984) ...................................................................................... 25, 26

Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) .................................................................................................. 14


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Moss v. United States Secret Serv., 572 F.3d 962 (9th Cir. 2009) ...................................................................................................... 8

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ...................................................................................................................... 8

Mott Thoroughbred Stables, Inc. v. Rodriguez, 87 F. Supp. 3d 237 (D.D.C. 2015) ............................................................................................ 22

Nat’l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) .................................................................................................................... 8

Ness Inv. Corp. v. U.S. Dep’t of Agr., Forest Serv., 512 F.2d 706 (9th Cir. 1975) .................................................................................................... 20

Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 61–62 (2004) .............................................................................................. 9, 10, 18

Occidental Eng’g Co. v. I.N.S., 753 F.2d 766 (9th Cir. 1985) .................................................................................................... 20

Office of Pers. Management v. Richmond, 496 U.S. 414, 110 S. Ct. 2465, 110 L. Ed. 2d 387 (1990) ........................................................ 32

Osage Producers Ass’n v. Jewell, --- F. Supp. 3d ---, 2016 WL 3093938 (N.D. Okla. June 1, 2016) ........................................... 11

Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997) .................................................................................................. 29

Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199 (2015) ............................................................................................................... 29

RCM Tech., Inc. v. U.S. Dep’t of Homeland Sec., 614 F. Supp. 2d 39 (D.D.C. 2009) ............................................................................................ 10

Royal Siam Corp. v. Chertoff, 484 F.3d 139 (1st Cir. 2007) ............................................................................................... 21, 32

Seven Star. Inc. v. United States, 873 F.2d 225 (9th Cir. 1989) .................................................................................................... 22

Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) .............................................................................................. 12, 13

Sussex Eng’g, Ltd. v. Montgomery, 825 F.2d 1084 (6th Cir. 1987) .............................................................................................. 5, 22

Telesaurus VPC, LLC v. Power, 623 F.3d 998 (9th Cir. 2010) ...................................................................................................... 7

Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984) .................................................................................................... 8


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True Capital Mgmt., LLC v. U.S. Dep’t of Homeland Sec., No. 13-261 JSC, 2013 WL 3157904 (N.D. Cal. June 20, 2013) .............................................. 31

United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972) .................................................................................................................. 30

Wild Fish Conservancy v. Jewell, 730 F.3d 791 (9th Cir. 2013) .................................................................................................... 15

Statutes

5 U.S.C. § 551(13) ........................................................................................................................ 10

5 U.S.C. § 551(4) .......................................................................................................................... 27

5 U.S.C. § 551(5) .......................................................................................................................... 27

5 U.S.C. § 551(6) .......................................................................................................................... 27

5 U.S.C. § 551(7) .......................................................................................................................... 27

5 U.S.C. § 701 ................................................................................................................................. 1

5 U.S.C. § 706 ............................................................................................................................... 16

5 U.S.C. § 706(1) .................................................................................................................... 17, 18

5 U.S.C. § 706(2)(A)........................................................................................................... 8, 17, 19

5 U.S.C. § 706(2)(D)..................................................................................................................... 26

5 U.S.C. § 706(2)(E) ..................................................................................................................... 29

5 U.S.C. §553 .......................................................................................................................... 26, 27

5 U.S.C. §§ 702 ................................................................................................................... 9, 14, 31

6 U.S.C. §§ 202 ............................................................................................................................... 3

8 U.S.C. § 1101 ............................................................................................................................... 2

8 U.S.C. § 1101(a)(15) .................................................................................................................... 2

8 U.S.C. § 1184(c) ...................................................................................................................... 3, 9

8 U.S.C. § 1201(a)(1) ...................................................................................................................... 4

8 U.S.C. § 1202 ............................................................................................................................... 4

8 U.S.C. § 1361 ............................................................................................................................... 4

Pub. L. No. 107-269 .................................................................................................................. 3, 32


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Rules

Fed. R. Civ. P. 12(b)(1).......................................................................................................... passim

Fed. R. Civ. P. 12(b)(6)................................................................................................... 2, 7, 14, 24

Fed. R. Civ. P. 8 ............................................................................................................................ 16

Fed. R. Civ. P. 8(a)(2) ................................................................................................................... 21

Regulations

8 C.F.R. § 103.3(c).................................................................................................................. 21, 28

8 C.F.R. § 214.2 .......................................................................................................... 17, 18, 19, 21

8 C.F.R. §§ 214.2(h)(2)(i) ............................................................................................................... 4

8 C.F.R. § 214.2(h)(6)(vi) ........................................................................................................... 4, 6

8 C.F.R. § 214.2(h)(9)(i) ................................................................................................................. 4

8 C.F.R. § 248.3 .............................................................................................................................. 4

22 C.F.R. § 41.53 ............................................................................................................................ 4

22 C.F.R. § 42.71 ............................................................................................................................ 4

55 Fed. Reg. 2606 (Jan. 26, 1990) .................................................................................................. 5

73 Fed. Reg. 78104 (Dec. 19, 2008) ............................................................................................... 3


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INTRODUCTION

Plaintiffs, a contracting association and a disparate group of businesses in Guam, challenge

the government’s denial of H-2B petitions filed by employers in Guam and seek a court order

directing Defendants to reopen and grant any petitions that have or will be filed by an employer in

Guam and which have or will be denied on the ground that the employer failed to demonstrate

“temporary need.” See First Amended Complaint (“FAC”), ECF No. 23, ¶¶ 1, 124, 130–169.1

Plaintiffs contend they are entitled to such relief because the United States Citizenship and

Immigration Services (“USCIS”) has or will unlawfully deny their H-2B petitions based “on a

seemingly new interpretation” of “temporary service or labor.” FAC ¶ 6. But they fail to identify

any rule, guidance, or memorandum reflecting USCIS’s purported change in policy and do not

describe the “seemingly new interpretation” of temporary need on which USCIS allegedly relied

(or will rely) to deny their and the putative class members’ H-2B petitions. Instead, they simply

contend USCIS must have changed its interpretation of temporary need because, according to

Plaintiffs, USCIS denied their (and others’) H-2B petitions in 2015 and 2016 after having approved

their (and others’) H-2B petitions based on the same set of operative facts in previous years. This

allegation does not raise a justiciable claim, nor does it show Plaintiffs are entitled to any relief.

As an initial matter, Plaintiffs’ allegations cannot be reviewed by this Court because the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. does not authorize courts to engage

in judicial review of “agency action” based on a series or pattern of allegedly unlawful decision

making. See, e.g., Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891–94 (1990). Instead, to invoke

this Court’s jurisdiction, Plaintiffs must seek review of discrete “final agency action [that] has an

actual or immediately threatened effect.” Id. at 894 (internal quotations omitted). Because none

1 Plaintiffs served their complaint on Defendants on or about October 11, 2016. ECF No. 1. With Defendants’ consent, Plaintiffs filed their amended complaint on December 14, 2016. ECF No. 23.


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of the counts in Plaintiffs’ amended complaint meet this standard, the Court should dismiss this

action in its entirety pursuant to Fed. R. Civ. P. 12(b)(1).

Moreover, even if the Court were to read Plaintiffs’ claims for relief as limited to USCIS’s

actions on the petitions that Plaintiffs describe in the background section of their amended

Complaint, FAC ¶¶ 32–58, none state a claim on which this Court may grant relief. All seven

counts that Plaintiffs raise in their amended complaint either lack a cognizable legal theory or

plausible factual allegations to support a cognizable legal theory. Accordingly, even if the Court

were to find that it has subject matter jurisdiction over any of these claims, it must nevertheless

dismiss this action in its entirety pursuant to Fed. R. Civ. P. 12(b)(6).

STATUTORY AND REGULATORY BACKGROUND

The Immigration and Nationality Act (“INA” or “Act”), codified as amended at 8 U.S.C.

§ 1101, et seq, defines various classes of temporary (“nonimmigrant”) workers who may be

admitted to the United States for specific purposes and limited periods of time. See 8 U.S.C. §

1101(a)(15). As relevant here, the Act defines an “H-2B” nonimmigrant as “an alien . . . having a

residence in a foreign country which he has no intention of abandoning who is coming temporarily

to the United States to perform other [i.e., nonagricultural] temporary service or labor if

unemployed persons capable of performing such service or labor cannot be found in this country.”

8 U.S.C. § 1101(a)(15)(H)(ii)(b).2 Aliens who meet this classification are not automatically

entitled to enter or work in the United States; rather, Congress has left “[t]he question of importing

any alien as [an H-2B nonimmigrant] in any specific case or specific cases” to the Secretary of

Homeland Security (“Secretary”), and his designee, USCIS, “after consultation with appropriate

2 Those admitted to the United States under this classification are commonly called “H-2B workers.”


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agencies of the Government,” and “upon petition of the importing employer.” 8 U.S.C. § 1184(c).3

“Such petition shall be made and approved before the visa is granted” and “shall be in such form

and contain such information as the [Secretary] shall prescribe.” Id.

The importation of H-2B workers is a multi-step process that involves three different

government entities. First, in deciding the question of whether an employer may “import” H-2B

workers in any specific case or specific cases, the Secretary’s designee, USCIS consults with the

U.S. Department of Labor (“DOL”) —or, if the position is in Guam, the Guam Department of

Labor (“Guam DOL”)—to determine whether U.S. workers are available to perform the labor or

services to be performed by H-2B workers and whether the employment of H-2B workers in those

positions will adversely affect U.S. workers. See Changes to Requirements Affecting H-2B

Nonimmigrants and Their Employers, Final Rule, 73 Fed. Reg. 78104 (Dec. 19, 2008). This

consultation takes place in the form of a “temporary labor certification,” which is intended to serve

as advice from DOL or Guam DOL “on whether or not United States workers capable of

performing the temporary labor or services [described in the petition] are available and whether or

not the alien’s [or aliens’] employment will adversely affect the wages and working conditions of

similarly employed United States workers.” 8 C.F.R. § 214.2(h)(6)(iii)(A); see also

§214.2(h)(6)(v). Prospective H-2B employers must apply for and receive a temporary labor

certification before petitioning USCIS for permission to employ H-2B workers.

Second, once an employer obtains a temporary labor certification, it must file an I-129

Petition for Nonimmigrant Worker (“H-2B petition”) with USCIS, a component of the Department

3 Under the Homeland Security Act of 2002 (“HSA”), Pub. L. No. 107-269, 116 Stat. 2135 (Nov. 25, 2002), the Attorney General’s responsibilities under section 1184(c) were expressly transferred to the Secretary of Homeland Security. See 6 U.S.C. §§ 202, 271(b). The HSA dismantled the former Immigration and Naturalization Service (“INS”) and separated it into three components within the Department of Homeland Security (“DHS”): USCIS, which administers and adjudicates immigration benefits; Immigration and Customs Enforcement; and Customs and Border Protection.


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of Homeland Security (“DHS”), to have the foreign workers whom it seeks to employ classified

as H-2B nonimmigrants. 8 C.F.R. §§ 214.2(h)(1)(ii)(D), 214.2(h)(6)(iii)(C)–(E). Employer-

petitioners bear the burden of demonstrating that they (and their beneficiaries) are eligible for H-

2B classification. 8 U.S.C. § 1361.

Third, if USCIS approves the petition, an alien beneficiary of the H-2B petition who is

outside the United States may apply for a visa at a U.S. embassy or consulate abroad, if all other

relevant conditions are satisfied. 8 U.S.C. § 1202; 8 C.F.R. § 214.2(h)(9)(i); 22 C.F.R. § 41.53.

The authority to grant or deny a visa application rests with the consular officer. See 8 U.S.C. §

1201(a)(1); 22 C.F.R. § 42.71, 42.81; 8 U.S.C. § 1361 (providing that applicant has burden of

proof to establish eligibility for visa “to the satisfaction of the consular officer”). Once the alien-

beneficiary obtains a visa, he or she may travel to the United States and work for the employer

who filed the H-2B petition—but only that employer—under the terms and conditions specified in

the petition. 8 C.F.R. §§ 214.2(h)(2)(i), 214.2(h)(13)(i)(A). The alien-beneficiary may not work

beyond the validity period of the approved petition unless the employer-petitioner files an H-2B

petition to extend his or her nonimmigrant status, nor may he or she work for any employer other

than the employer who filed the petition unless the new employer files its own H-2B petition to

adjust the beneficiary’s status and sponsor his or her employment. Id.; 8 C.F.R. § 248.3.

Because the INA limits the work that may be performed by H-2B workers to

nonagricultural “temporary service or labor,” H-2B petitions must be accompanied by a statement

“describing in detail the temporary situation or conditions which make it necessary to bring the

alien[s] to the United States and whether the need is a one-time occurrence, seasonal, peakload, or

intermittent.” 8 C.F.R. § 214.2(h)(6)(vi); see also 8 C.F.R. § 214.2(h)(6)(ii)(B). Petitioners must

provide information about temporariness to DOL or Guam DOL when they apply for a temporary

labor certification, but DOL or Guam DOL determines whether the petitioner has a “need for


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temporary workers to fill those jobs for which U.S. workers are not available.” 73 Fed. Reg. at

78119; see id. (“The regulation contemplates a double-check system to ensure that the job in

question is in fact temporary in nature. First, when seeking a temporary labor certification with

DOL, the employer must not only describe to DOL the nature, scope, and duration of the temporary

job, but also justify the need for temporary workers to fill those jobs for which U.S. workers are

not available.”). DHS, however, has the ultimate authority to determine whether a petition satisfies

the requirements of section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act. As such,

“DHS retains the authority, even after DOL approves the temporary labor certification, to

determine, at the time it adjudicates the H-2B petition, whether the petitioner’s need is in fact

temporary, that is, of a limited, finite nature.” Id.; see also 8 C.F.R. 214.2(h)(1)(ii)(D) (“The

temporary or permanent nature of the services or labor described on the approved temporary labor

certification are subject to review by USCIS.”).

Per DHS regulations, a position is “temporary” if “the petitioner’s need for the duties to be

performed by the employee(s) is temporary, whether or not the underlying job can be described as

permanent or temporary.” 8 C.F.R. § 214.2(h)(6)(ii)(A). This interpretation is consistent with the

former INS’s and USCIS’s longstanding policy, first announced in Matter of Artee Corp., 18 I. &

N. Dec. 366 (1982), that in determining whether an alien is coming “temporarily” to the United

States to “perform temporary services or labor” as required by 8 U.S.C. § 1101(a)(15)(H)(ii), it is

the nature of the employer’s need, and not the nature of the duties, that is controlling.4 See also

55 Fed. Reg. 2606, 2615–16 (Jan. 26, 1990) (incorporating the Matter of Artee test into INS

4 Matter of Artee reversed Matter of Contopoulous, 10 I. & N. Dec 654 (1964), which “determined temporariness by looking to the nature of the duties performed, not to the intent of the petitioner employer and the alien beneficiary concerning the time that the alien beneficiary would be employed in that position.” Sussex Eng’g, Ltd. v. Montgomery, 825 F.2d 1084, 1088 (6th Cir. 1987). After Artee, the mere fact that a particular position is temporary is insufficient to qualify for H-2B classification; the employer’s need for a person to perform the duties required of that position is the controlling factor of the analysis.


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regulations). Accordingly, in determining whether a position qualifies for the H-2B program,

USCIS focuses on the petitioner’s need for the labor or services to be performed by H-2B workers,

and not necessarily the duration of the particular position to be filled by the H-2B workers. See 8

C.F.R. § 214.2(h)(6)(ii)(B) (“Employment is of a temporary nature when the employer needs a

worker for a limited period of time.”). “The employer must establish that the need for the

employee will end in the near, definable future.” Id. In most cases, “that period is limited to one

year or less, but in the case of a one-time event could last up to 3 years.” Id.

A petitioner’s need for the labor or services to be performed by H-2B workers must meet

one of four standards outlined in the regulations: 1) a one-time occurrence; 2) a seasonal need; 3) a

peakload need; or, 4) an intermittent need. 8 C.F.R. § 214.2(h)(6)(vi); see also 8 C.F.R. §

214.2(h)(6)(ii)(B). Only two of these categories—a “one-time occurrence” and a “peakload”

need—are relevant to Plaintiffs’ claims. To demonstrate a one-time occurrence, “[t]he petitioner

must establish that it has not employed workers to perform the services or labor in the past and

that it will not need workers to perform the services or labor in the future, or that it has an

employment situation that is otherwise permanent, but a temporary event of short duration has

created the need for a temporary worker.” 8 C.F.R. § 214.2(h)(6)(ii)(B)(1). To demonstrate a

peakload need, “[t]he petitioner must establish that it regularly employs permanent workers to

perform the services or labor at the place of employment and that it needs to supplement its

permanent staff at the place of employment on a temporary basis due to a seasonal or short-term

demand and that the temporary additions to staff will not become a part of the petitioner’s regular

operation.” 8 C.F.R. § 214.2(h)(6)(ii)(B)(3).

STANDARDS OF REVIEW

I. Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

Federal courts are courts of limited jurisdiction, possessing only the power authorized to


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them by statute and by the Constitution. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.

375, 376 (1994). In reviewing a motion under Federal Rule of Civil Procedure 12(b)(1), the court

must presume that it lacks subject-matter jurisdiction over any claims until the plaintiff proves

otherwise. See, e.g., Kokkonen, 511 U.S. at 377; La Reunion Francaise SA v. Barnes, 247 F.3d

1022, 1026 (9th Cir. 2001). Defendants may challenge a plaintiff’s jurisdictional allegations in

one of two ways: (1) by presenting a “facial” attack that accepts the truth of the plaintiff’s

allegations but asserts they are insufficient on their face to invoke federal jurisdiction, or (2) a

“factual” attack that contests the truth of the plaintiff’s factual allegations, usually by introducing

evidence outside the pleadings. Leite v. Crane Co., 749 F.3d 1117, 1121-22 (9th Cir. 2014). The

burden of proof rests solely with the party asserting jurisdiction. See Ass’n of Am. Med. Coll. v.

United States, 217 F.3d 770, 778 (9th Cir. 2000).

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed if it “fail[s]

to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under Rule

12(b)(6) is appropriate when a plaintiff’s complaint lacks a cognizable legal theory or sufficient

facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,

699 (9th Cir. 1990). To avoid a Rule 12(b)(6) dismissal, “a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face[.]” Telesaurus

VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citations omitted). A complaint need not

contain “detailed factual allegations”; however, “a plaintiff’s obligation to provide the grounds of

his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal

quotations omitted). Moreover, while a plaintiff is not required to establish a probability of success

on the merits, he or she must demonstrate “more than a sheer possibility that a defendant has acted

unlawfully.” Id. at 678. “In sum, for a complaint to survive a motion to dismiss, the non-


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conclusory factual content, and reasonable inferences from that content, must be plausibly

suggestive of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d

962, 969 (9th Cir. 2009) (internal quotations omitted).

II. Review of Agency Action Under The APA

“Under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), a court may set aside a

determination of [an agency] as arbitrary, capricious, or an abuse of discretion. The determination

must be made on the administrative record before the [agency].” Tongatapu Woodcraft Hawaii,

Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984). Review under the arbitrary and capricious

standard is highly deferential. A reviewing court must uphold the agency’s decision unless the

agency “has relied on factors which Congress had 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.” Nat’l Ass'n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644, 658 (2007) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983)) (internal quotations omitted). The court’s role is “not to substitute

its judgment for that of the agency,” but rather, to examine whether there is a “rational connection

between the facts found and the choice made” by the agency. Bonneville Power, 477 F.3d 668,

687 (9th Cir. 2007) (quoting State Farm, 463 U.S. at 43) (internal quotation marks omitted). Even

if the agency’s decision is “of less than ideal clarity,” the court should uphold the decision “if the

agency’s path may reasonably be discerned.” Nat’l Ass'n of Home Builders, 551 U.S. at 658

(quoting Bowman Transp., Inc. v. Arkansas–Best Freight System, Inc., 419 U.S. 281, 286 (1974))

(internal quotation marks omitted).


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ARGUMENT

I. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Claims

The INA does not provide employers with a cause of action authorizing judicial review of

the government’s decision to grant or deny a petition to import foreign labor in any specific case

or cases, see 8 U.S.C. § 1184(c). Accordingly, an employer seeking to challenge USCIS’s denial

of a temporary worker visa petition must rely on the waiver of sovereign immunity and cause of

action in the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 704. Plaintiffs in the instant

matter fail to satisfy a foundational requirement for judicial review under the APA: they do not

seek review of any discrete, reviewable agency action. Instead, their amended complaint raises

general allegations about USCIS’s adjudication of H-2B petitions filed by employers in Guam and,

based on these allegations, Plaintiffs seek broad injunctive relief affecting USCIS’s adjudication

of all H-2B petitions that have been or will be filed by employers in Guam for an unspecified

period of time. These broad claims are not permitted under the APA and represent precisely the

type of programmatic challenge that the Supreme Court has repeatedly struck down. Accordingly,

the Court lacks subject matter jurisdiction over Plaintiffs’ claims for relief and should dismiss

Plaintiffs’ amended complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1).

Plaintiffs May Only Challenge Discrete, Identifiable USCIS Decisions

The APA waives sovereign immunity over, and authorizes judicial review of, claims

brought by persons who are “suffering legal wrong because of agency action” or “adversely

affected or aggrieved by agency action within the meaning of the relevant statute.” 5 U.S.C. §

702. Not all such actions are subject to judicial review, however. Where, as here, the agency

action complained of is not made reviewable by statute, it must constitute “final agency action for

which there is no other adequate remedy in a court.” Id. at § 704 (emphasis added); see Norton v.

Southern Utah Wilderness Alliance [“SUWA”], 542 U.S. 55, 61–62 (2004). It must also be one of


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the circumscribed, discrete actions described in the APA, i.e., “the whole or a part of an agency

rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. at 62

(quoting 5 U.S.C. § 551(13)). Accordingly, plaintiffs seeking review under the APA only have

standing to challenge discrete “final agency action” that causes them harm. Id. at 62. This

requirement precludes lawsuits seeking “wholesale improvement of [an agency] program by court

decree, rather than in the offices of the Department or the halls of Congress, where programmatic

improvements are normally made.” Lujan 497 U.S. at 891. It serves to “protect agencies from

undue judicial interference” and to “avoid judicial entanglement in abstract policy disagreements

which courts lack both expertise and information to resolve.” SUWA, 542 U.S. at 66. While

Plaintiffs may find the case-by-case approach that APA review requires “understandably

frustrating,” it is the traditional mode of judicial operation and “[e]xcept where Congress explicitly

provides for [judicial] correction of the administrative process at a higher level of generality,”

courts may “intervene in the administration of the laws only when, and to the extent that, a specific

‘final agency action’ has an actual or immediately threatened effect.” Lujan 497 U.S. at 894.

Plaintiffs’ Claims Fail to Challenge Discrete Agency Action

Given the clear limits on judicial review of agency action, this Court does not have

jurisdiction to hear Plaintiffs’ challenge to an alleged change in “policy” or “interpretation” in a

programmatic challenge to all H-2B petitions that have been, or will be, filed by an employer in

Guam. See, e.g., RCM Tech., Inc. v. U.S. Dep’t of Homeland Sec., 614 F. Supp. 2d 39, 45 (D.D.C.

2009) (“[P]laintiffs have no likelihood of success on the merits of this case because they are

challenging an alleged “policy,” not the specific denial of a visa application made pursuant to that

policy”). In order to bring their claims, each Plaintiff must limit their challenge to the denial of a

specific, identifiable petition. None of the counts in their amended complaint meet this threshold

requirement: Plaintiffs simply refer to “H2B applications,” “petitions,” the “agency decision” (or


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“decisions”), or “agency action” (or “actions”), without identifying the actual applications,

petitions, or decisions for which they seek review. See e.g., FAC ¶¶ 130, 138–140, 142–45, 149,

151–56, 160, 162–63, 166, 168.5

Plaintiffs cannot plausibly argue that their generic references to applications, petitions, and

decisions are the result of mere oversight. Part II of Plaintiffs’ Amended Complaint describes

various petitions that have been denied, are pending with a USCIS service center, are pending on

appeal, or that have been withdrawn. See FAC ¶¶ 32–58, Exhibit 20. However, when viewed in

its entirety, their amended complaint does not challenge USCIS’s actions on these H-2B petitions,

but rather, USCIS’s denial (or future denial) of any H-2B petition for failure to demonstrate a

temporary need filed by any employer in Guam. A challenge such as this is not justiciable. See

Lujan, 497 U.S. at 891. Plaintiffs cannot simply lump together all of USCIS’s actions on every

H-2B petition that has been or will be filed by an employer in Guam and which has been or will

be denied for a failure to demonstrate a temporary need, and pretend as though USCIS’s actions

on all of these petitions constitute one discrete “rule” or “order” subject to judicial review. See,

e.g., Osage Producers Ass’n v. Jewell, --- F. Supp. 3d ---, 2016 WL 3093938, at *2 (N.D. Okla.

June 1, 2016) (dismissing APA challenge where plaintiff “generically describe[d] certain arbitrary

or unlawful agency practices—such as unreasonably delaying the issuance of drilling permits—

and request[ed] review of all agency actions falling within those descriptions”) (emphasis in

original); Alabama-Coushatta Tribe of Texas v. United States, 757 F.3d 484, 490-91 (5th Cir.

2014) (rejecting APA challenge to past and ongoing approval of oil and gas leasing and timber

5 Some counts reference petitions or applications filed by “Plaintiffs’ and the Proposed Class,” but this limitation does not provide any clarity as to the actual agency actions that would be subject to judicial review. None of Plaintiffs’ counts contain any temporal scope, FAC ¶¶ 130–168, and each of the Plaintiffs appears to have filed multiple H-2B petitions for various positions in numerous years. Likewise, it is not clear who the members of the putative class would be or which petitions filed by those putative class members are encompassed by Plaintiffs’ claims.


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exploitation programs as “programmatic challenge,” where Tribe’s complaint was “structured as

a blanket challenge to all of the Government’s actions with respect to all permits and leases granted

for natural resource extraction on a significantly large amount of land” rather than a challenge “to

a particular and identifiable action taken by the Government.”); see also Fanin v. U.S. Dep’t of

Veterans Affairs, 572 F.3d 868, 876 (11th Cir. 2009) (“Broad programmatic attacks against

agencies are not permissible under the APA.”); Colo. Farm Bureau Fed’n v. U.S. Forest Serv.,

220 F.3d 1171, 1173 (10th Cir. 2000) (plaintiffs seeking relief under the APA have the “burden of

identifying specific federal conduct and explaining how it is ‘final agency action’ within the

meaning of section 551(13).”).

The fact that Plaintiffs amended their complaint to identify the H-2B petitions that certain

Plaintiffs filed with USCIS over the course of the past year, FAC ¶¶ 32–58, does not render their

claims for programmatic relief reviewable. None of Plaintiffs’ claims or requests for relief is

limited to USCIS’s actions on specific petitions. See FAC ¶¶ 130–169. Instead, Plaintiffs rely on

USCIS’s alleged pattern or practice of denying H-2B petitions filed by employers in Guam to

allege that USCIS has unlawfully changed its interpretation of “temporary need,” and citing this

allegedly unlawful change in policy, they ask the Court to grant broad, prospective injunctive relief

blocking USCIS from denying any H-2B petitions that they or the putative class members’ have

or will file in the future based on the petitioner’s failure to demonstrate temporary need.

Simply identifying examples of petitions that USCIS denied over the course of the past

year does not make Plaintiffs’ generic claims justiciable. See e.g., Lujan, 497 U.S. at 893 (“[T]he

flaws in the entire “program”—consisting principally of the many individual actions referenced in

the complaint, and presumably actions yet to be taken as well—cannot be laid before the courts

for wholesale correction under the APA, simply because one of them that is ripe for review

adversely affects one of respondent’s members.”). The Fifth Circuit squarely addresses this issue


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in Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) (en banc). There, the plaintiffs attempted

to challenge the Forest Service’s alleged unlawful practice of permitting “even-aged timber

management” in Texas forests. Id. at 563. Like the Plaintiffs in this action, they amended their

complaint to identify specific Forest Service decisions that allegedly evidenced this unlawful

practice; however, again, like the Plaintiffs in this action, they did not limit their claims to the

specific allegedly unlawful decisions, but instead relied on these decisions to seek broad, injunctive

relief blocking the Forest Service from engaging in the allegedly unlawful practice evidenced in

those decisions. Id. at 563-64. The district court granted the plaintiffs’ request for injunctive

relief, but the Fifth Circuit reversed, finding the district court did not have jurisdiction to consider

the plaintiffs’ claims, as they did not challenge “an identifiable action or event.” Id. at 565. The

court acknowledged that the plaintiffs had identified twelve allegedly unlawful timber sales in

their complaint, but noted the plaintiffs’ claims went “well beyond any challenge to discrete sales,”

and citing Lujan, it held the plaintiffs could not “challenge an entire program by simply identifying

specific allegedly-improper final agency actions within that program.” Id. at 567.

Here, as in Peterson, any doubt concerning the programmatic nature of Plaintiffs’ claims

is eliminated by their sweeping prayer for relief. Plaintiffs do not seek to redress any particularized

injury resulting from a discrete “final agency action,” but instead request an injunction requiring

Defendants to take action on large unidentified groups of petitions. See FAC, Section VI (“Prayer

for Relief”) at 37–39. Specifically, Plaintiffs’ amended complaint challenges USCIS’s

determination of temporary need for every petition that “has or will” be filed by an employer in

Guam, and it seeks broad, prospective relief for all H-2B petitions that Plaintiffs (and the putative

class members) have filed, or will file, for an unspecified period of time. See FAC, ¶124 (defining

the putative class), ¶¶ 130–169 (raising counts based on generalized allegations); Section VI, ¶¶

1–14 (seeking relief on behalf of all Plaintiffs and the putative class). Plaintiffs’ attempt to


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challenge a “policy” based on an alleged pattern or practice of unlawful decision making is not

justiciable and must be dismissed. Cf. Friends of Animals v. Ashe, 174 F. Supp. 3d 20, 37 (D.D.C.

2016) (dismissing claim alleging that federal defendants adopted a “policy and repeated practice

of issuing permits to import sport-hunted trophies of endangered animals” in violation of the

Endangered Species Act and the APA because the plaintiffs’ citation to specific permits did not

“give them a platform from which they may request ‘wholesale correction’ of the agency’s

permitting program.”) (citing Lujan, 497 U.S. at 893); Fund for Animals v. BLM, 357 F. Supp. 2d

225, (D.D.C. 2004) (citing Peterson and dismissing complaint for failure to challenge final agency

action despite the fact that the plaintiffs named several specific gather and removal decisions

regarding wild horses); Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 102-03 (D.D.C. 2000)

(finding Peterson “particularly instructive” in rejecting plaintiffs’ use of “examples” of final

agency action to establish a larger pattern of agency misconduct). Because none of Plaintiffs’

claims challenge discrete “agency action,” as required by 5 U.S.C. § 702, the Court should dismiss

Plaintiffs’ amended complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1).

II. The Court May Also Dismiss Plaintiffs’ Claims In Their Entirety Under Federal Rule Of Civil Procedure 12(B)(6)

Even if the Court were to find it has subject matter jurisdiction over any of the claims in

Plaintiffs’ amended complaint, Plaintiffs are still not entitled to any relief. As explained below,

none of the counts in the amended complaint state a legally cognizable claim on which the Court

may grant relief. The Court, therefore, may also dismiss Plaintiffs’ lawsuit in its entirety under

Rule 12(b)(6).

Plaintiffs’ Claims Fail To Comply With Rule 8’s Pleading Standards

As a general matter, Plaintiffs’ amended complaint fails to meet the pleading standard

required by Rule 8 of the Federal Rules of Civil Procedure. See Mendiondo v. Centinela Hosp.

Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (“Under Rule 8(a), the plaintiff must give the


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defendant fair notice of what the . . . claim is and the grounds upon which it rests.”) (internal

quotation marks omitted)). To comply with Rule 8, a plaintiff must plead a short and plain

statement of the elements of his or her claim and identify the transactions or occurrences giving

rise to their cause of action. Bautista v. Los Angeles Cty., 216 F.3d 837, 840 (9th Cir. 2000). Here,

none of the counts in Plaintiffs’ amended complaint meet this requirement: they are replete with

conclusory and generalized allegations that do not distinguish among the defendants and they fail

to identify the specific agency action(s) (i.e., the necessary transaction or occurrence giving rise to

a claim under the APA) on which they are premised. For example, Count I alleges that “Plaintiffs

and the Proposed class have a clear and certain claim to have their H2B applications approved

having demonstrated temporary need by a preponderance of the evidence,” FAC ¶ 130, but it does

not specify which “H2B applications” filed by Plaintiffs or putative class members allegedly meet

this standard. Counts II, III, and IV contain similar deficiencies: they allege Plaintiffs and the

proposed class “have a right to review of the agency decisions” or “the agency decision,” but they

neglect to identify “the agency decisions” or “agency decision” of which Plaintiffs and the putative

class allegedly have a right to review. See Compl. ¶¶ 140, 142, 145. Likewise, Count V alleges

“Defendants actions are unconstitutional, violate the Immigration and Nationality Act, and are

arbitrary and capricious,” but it does not identify the putatively illegal actions or the constitutional

or statutory provisions Defendants allegedly violated. FAC ¶ 152. Finally, Counts VI and VII

similarly fail to specify the H-2B petitions that were allegedly inequitably or unlawfully denied,

or the labor certifications that they allege should be extended. FAC ¶¶ 162–169.

Plaintiffs’ failure to sufficiently identify the agency actions of which they seek review

requires dismissal of their claims. See, e.g., Wild Fish Conservancy v. Jewell, 730 F.3d 791, 801

(9th Cir. 2013) (dismissing “vague” challenge to Defendants’ “operation” of two dams); Ctr. for

Biological Diversity v. Veneman, 394 F.3d 1108, 1111–13 (9th Cir. 2005) (allegation that United


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States Forest Service failed to “consider” classification of 57 rivers in Arizona did not challenge

final agency action); Colo. Farm Bureau Fed’n v. U.S. Forest Serv., 220 F.3d 1171, 1173 (10th

Cir. 2000) (Plaintiffs seeking relief under the APA have the “burden of identifying specific federal

conduct and explaining how it is ‘final agency action’ within the meaning of section 551(13).”).

In addition to the jurisdictional implications arising from Plaintiffs’ failure to specify the

agency actions of which they seek review, their omission of this information also affects the

orderly conduct of the case. The Court’s review of USCIS’s decisions denying each Plaintiffs’ H-

2B petition is limited to the administrative record documenting USCIS’s action on that particular

petition. See 5 U.S.C. § 706; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420

(1971). Because Plaintiffs have failed to identify the specific, discrete action(s) for which they

seek review, Defendants do not have sufficient information to respond to their claims and cannot

compile and submit the administrative record applicable to their claims. Given the lack of

specificity in Plaintiffs’ pleadings, and assuming for the sake of argument that this matter was

justiciable, the administrative record for this case would ostensibly include USCIS’s record of

proceedings for every H-2B petition that has been, or will be filed by an employer in Guam, and

which has been, or will be denied by USCIS on the ground that the petitioning employer failed to

establish a temporary need for the labor or services to be performed by H-2B workers. FAC ¶ 124

(describing putative class). The compilation of such a record is not feasible; there is no temporal

scope to the H-2B petitions that must be included and USCIS cannot possibly document its

adjudication of H-2B petitions that have not yet been filed.

Plaintiffs’ amended complaint, therefore, fails to properly plead the elements of their

claims for relief, and fails to identify the transactions or occurrences giving rise to their purported

causes of action. Accordingly, Plaintiffs’ failure to identify the agency actions of which they seek

review with any specificity requires dismissal of their claims. See Fed. R. Civ. P. 8, 12(b)(6).


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Plaintiffs Fail to State a Cognizable Claim For Relief Under The APA

1. Neither the INA nor DHS regulations provide Plaintiffs with a cause of action to challenge USCIS’s denial of H-2B Petitions and USCIS’s approval of an H-2B petition does not automatically entitle the petitioner to approval in subsequent years (Counts I, III, V, VI, VII)

Plaintiffs allege they and the putative class members have demonstrated temporary need

by a preponderance of the evidence, and that having done so, they have “a clear and certain claim

to have their H2B applications approved.” FAC ¶ 130 (citing USCIS’s Adjudicator’s Field

Manual, § 11.1(c)). They further allege that “[b]y denying the petitions by the same petitioners

after years (decades of approvals under the same set of operative facts and without a change in the

law or regulations, Defendants violate 8 C.F.R. § 214.2 et seq,” FAC ¶ 139, or alternatively, that

Defendants denial of Plaintiffs and the putative class members’ petitions under these

circumstances “constitutes agency action that is arbitrary, capricious, and abuse of discretion, and

not in accordance with the law pursuant to 5 U.S.C. § 706(2)(A).” These claims are not legally

cognizable for several reasons.

As an initial matter, because Plaintiffs have not identified an applicable statutory cause of

action, any action to “enforce” their purported “clear and certain” claim to have their petitions

approved must be brought under § 706(1) of the APA. See 5 U.S.C. § 706(1) (authorizing a court

to “compel agency action unlawfully withheld or unreasonably delayed.”). Likewise, any action

challenging Defendants’ alleged violation of 8 C.F.R. § 214.2 et seq must be brought under §

706(2) of the APA. See 5 U.S.C. § 706(2)(A) (authorizing a court to “hold unlawful and set aside”

agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law”). As discussed above, Plaintiffs’ claims are not justiciable under § 706(1)

or § 706(2) because they do not challenge any discrete agency action. But even assuming,

arguendo, that these claims were justiciable, Plaintiffs’ allegations concerning their “clear and

certain claim” and Defendants’ purported “violation” of the regulations are meritless and must be


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dismissed for failure to state a claim.

To the extent Plaintiffs are seeking to compel any particular agency action under 5 U.S.C.

§ 706(1), they fail to state a cognizable claim for relief because they do not identify any authority

suggesting USCIS failed to perform a discrete action legally required of it. See, e.g., SUWA, 542

U.S. at 64 (“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency

failed to take a discrete agency action that it is required to take.”) (emphasis in original). A

reviewing court’s authority under § 706(1) is limited; it may only compel an agency “to perform

a ministerial or non-discretionary act,” or “to take action upon a matter, without directing how it

shall act.” Id. at 63; Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir.

2010) (“[O]ur ability to ‘compel agency action’ is carefully circumscribed to situations where an

agency has ignored a specific legislative command.”). Notably, Plaintiffs do not identify the

source of their “clear and certain claim to have their H2B applications approved,” or the provision

of 8 C.F.R. §§ 214.2 et seq. that Defendants allegedly violated. FAC ¶ 130. That is because no

such claim or violation exists. Nothing in the INA, DHS regulations, or the Adjudicator’s Field

Manual supports Plaintiffs’ allegation that Defendants (or any government official for that matter)

have “a ministerial, non-discretionary duty to approve the H2B applications once the Plaintiffs

have demonstrated temporary need by a preponderance of the evidence.” FAC ¶ 138. Likewise,

neither the INA, nor DHS regulations, nor the Adjudicator’s Field Manual suggest that an

employer is entitled to approval of their H-2B petition if it is based on “the same set of operative

facts” as a petition the employer filed, and USCIS approved, in a previous year. The regulatory

provisions to which Plaintiffs cite, 8 C.F.R. § 214.2(h)(6)(ii)(B)(1) and (3), merely define the

peakload and one-time occurrence standards of temporary need; they do not provide Plaintiffs a

cause of action or create any entitlement to approval of an H-2B petition once these standards have

been established. And the section of the Adjudicator’s Field Manual on which Plaintiffs rely, §


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11.1(c)), simply recounts the burden and standard of proof applicable to the adjudication of

Plaintiffs’ petitions; it does not provide Plaintiffs with a cause of action to enforce this standard of

proof or entitle Plaintiffs to approval of an H-2B petition that allegedly meets this standard. As

Plaintiffs’ allegations do now show that they have “clear and certain claim to have their H2B

applications approved” or that USCIS has a ministerial, nondiscretionary duty to approve their

(and the putative class members’) H-2B petitions, any claim seeking to compel USCIS to approve

their and the putative class members’ petitions must be dismissed.

Moreover, to the extent Plaintiffs rely on similar allegations to have USCIS’s denials “set

aside” under § 706(2), these claims must also fail because the amended complaint does not allege

any facts showing USCIS’s denials were in any way arbitrary, capricious, an abuse of discretion,

or otherwise contrary to law. Plaintiffs do not allege any facts from which the Court can plausibly

infer that, in denying their and the putative class members’ petitions, USCIS relied on factors

which Congress had not intended it to consider, entirely failed to consider an important aspect of

the problem, or offered an explanation for its decision that ran counter to the evidence before it or

that is so implausible it could not be ascribed to a difference in view or the product of agency

expertise. Instead, Plaintiffs simply contend that “[b]y denying the petitions by the same

petitioners after years (decades) of approvals under the same set of operative facts and without a

change in the law or regulations,” Defendants either “violate 8 C.F.R. § 214.2 et seq.” or act in a

manner that is “arbitrary, capricious, and abuse of discretion, and not in accordance with the law

pursuant to 5 U.S.C. § 706(2)(A).” FAC ¶¶ 139, 143. Plaintiffs’ first claim has no basis in law.

As discussed above, neither the regulations nor the Adjudicator’s Field Manual suggest that a

petitioner is entitled to H-2B classification if they base their petition on “the same set of operative

facts” as petitions that it has filed, and USCIS has approved, in previous years. And Plaintiffs’

second claim is not supported by any factual allegations that plausibly show Defendants acted in


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the manner Plaintiffs allege. See Ness Inv. Corp. v. U.S. Dep’t of Agr., Forest Serv., 512 F.2d 706,

717 (9th Cir. 1975) (“A general allegation that agency action was arbitrary, capricious or contrary

to law adds nothing to a complaint.”). Indeed, their allegation that they have based their petition

on the “same set of operative facts” as petitions that have been approved in the past is illogical in

that, through the passage of time and the history of approvals, the facts in reviewing the petition

will have necessarily changed. See FAC, Exhibit 21, ECF No. 23-21 at 2 (“Some employers have

expressed a need for H-2B workers spanning over a period of several years, which has cast doubt

on whether these employers’ needs can be properly characterized as ‘temporary.’”).

Plaintiffs cannot merely perfunctorily allege that USCIS’s decision making with respect to

all of their petitions was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.

USCIS’s adjudication of H-2B petitions—and in particular, its assessment of a petitioner’s

temporary need—involves individualized petition-specific assessments, and judicial review of

those assessments must be based on the administrative record before USCIS at the time it

adjudicated a particular petition and issued a final decision. See 8 C.F.R. § 214.2(h)(1)(ii)(D);

Fogo De Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127, 1144 (D.C. Cir.

2014) (“Visa decisions can be fact-intensive, and assessing the evidentiary record behind any such

determination is essential to evaluating the reasonableness of the agency’s decision.”). Moreover,

the agency’s determination of whether a particular employer has established the requisite

temporary need must be reviewed under the APA’s arbitrary and capricious or abuse of discretion

standard of review, which, as discussed above, requires identification of a discrete agency action

for judicial review. Cf. Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 768 (9th Cir. 1985) (holding

that the plaintiff must show that the former INS’s refusal to approve the petitions was “irrational”

to have the former INS’s denial of a nonimmigrant visa petition “set aside” under 706(2)(A)).

Plaintiffs essentially allege that it is per se arbitrary, capricious, an abuse of discretion, or


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otherwise contrary to law for USCIS to deny an H-2B petition if, in previous years, it has approved

a petition “based on the same operative facts” and there has been no change in the law or

regulations. This assertion has no basis in law or reason, and it does not give rise to a plausible

inference that USCIS’s denial of every H-2B petition filed by the Plaintiffs or putative class

members was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. See Iqbal,

556 U.S. at 678 (“[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

pleader is entitled to relief.’”) (quoting Fed. R. Civ. P. 8(a)(2)).

First, the fact that an employer’s position qualified for H-2B classification in one year does

not mean that a petition allegedly raising “the same operative facts” would be approvable in

succeeding years. The assessment of whether USCIS inappropriately weighed or assessed the

evidence in adjudicating a particular H-2B petition necessarily depends on the circumstances of

that particular petition and the statement of need and documentation that that petitioner provides

in support of its petition. USCIS considers many factors in evaluating an employer’s H-2B

petition, see 8 C.F.R. §§ 214.2 et seq, and USCIS’s determination of whether plaintiffs have

“demonstrated temporary need by a preponderance of the evidence” is a factual, petition-specific

assessment left to the informed discretion of USCIS, see 8 C.F.R. § 214.2(h)(1)(ii)(D). Each

petition is a separate proceeding with a separate record, 8 C.F.R. § 103.2(b)(16)(ii), and a decision

in an earlier case that has not been designated as a precedent decision is not binding on USCIS in

subsequent proceedings. 8 C.F.R. § 103.3(c). Indeed, many courts have found that USCIS’s

approval of a visa petition in previous, non-precedential decisions does not require USCIS to

approve subsequent petitions. E.g., Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir.

2007) (“The mere fact that the agency, by mistake or oversight, approved a specialty occupation

visa petition on one occasion does not create an automatic entitlement to the approval of a


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subsequent petition for renewal of that visa.”); Seven Star. Inc. v. United States, 873 F.2d 225, 227

(9th Cir. 1989) (decision by INS in one year does not mandate the same result in every similar

case in succeeding years); Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987)

(where agency oversight resulted in inconsistent action on similar petitions, “it is absurd to suggest

that the INS or any agency must treat acknowledged errors as binding precedent”); Mott

Thoroughbred Stables, Inc. v. Rodriguez, 87 F. Supp. 3d 237, 244 (D.D.C. 2015) (“Although the

denial of the latest O–1 Petition is a departure from the earlier, favorable adjudications of the

plaintiff's O–1 Petitions, that alone is an insufficient basis to disturb or set aside the agency

action.”); Boi Na Braza Atlanta, LLC v. Upchurch, No. 04–CV–2007–L, 2005 WL 2372846, at *9

(N.D. Tex. Sept. 27, 2005) (“[T]he court rejects [the] [p]laintiff's argument that the decisions to

deny the petitions in this case were improper because the [USCIS] in the past (and recently) granted

extensions for certain other beneficiaries.”), aff’d, 194 Fed. Appx. 248 (5th Cir. 2006).

Second, an employer seeking to import foreign workers for the same position, i.e. based on

the “same operative facts,” for several years in a row may initially be able to establish that its

position is “temporary” under the regulatory standard for a “one-time occurrence”, but that

regulation strongly suggests the employer would not remain eligible in succeeding years. See 8

C.F.R. § 214.2(h)(6)(ii)(B)(1) (requiring a petitioner to “establish that it has not employed workers

to perform the services or labor in the past and that it will not need workers to perform the services

or labor in the future, or that it has an employment situation that is otherwise permanent, but a

temporary event of short duration has created the need for a temporary worker”). Likewise, if a

petitioner employs H-2B workers in the same positions on a continual, year-round basis, the filing

of successive petitions based on “the same set of operative facts” would show that the H-2B

workers have become a part of the employer’s regular operations, thereby precluding H-2B

classification under the “peakload” standard of temporary need. See 8 C.F.R. §


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214.2(h)(6)(ii)(B)(3) (requiring the petitioner to “establish that it regularly employs permanent

workers to perform the services or labor at the place of employment and that it needs to supplement

its permanent staff at the place of employment on a temporary basis due to a seasonal or short-

term demand and that the temporary additions to staff will not become a part of the petitioner’s

regular operation.”) (emphasis added). In fact, this appears to be the very basis on which many

of Plaintiffs’ H-2B petitions were denied. See, e.g., ECF No. 23-6 at 6 (citing petitioner’s previous

filing history as one basis for concluding it did not qualify under the “peakload” standard of

temporary need); ECF No. 23-9 at 11 (noting petitioner’s previous filing history contradicted

petitioner’s assertion that it had a temporary need for the beneficiaries’ services or labor); ECF

No. 23-10 at 15 (noting USCIS records indicated the petitioner had filed multiple petitions for H-

2B visas in finding that the petitioner did not demonstrate the regulatory standard for a “one-time

occurrence”); ECF No. 23-15 at 7 (citing petitioner’s previous filing history in determining the

petitioner’s need for landscape gardeners was not temporary).

Plaintiffs’ only substantive allegation concerning the substance of USCIS’s denials is that

they “center on a finding that the Plaintiffs’ need is not peakload or one-time occurrence because

the workers would become part of the Plaintiffs’ regular operation.” FAC ¶ 91. It is absurd to

suggest that it would be arbitrary, capricious, an abuse of discretion, or in any way contrary to law

for USCIS to deny an H-2B petition on this basis, as such a finding clearly precludes H-2B

classification under the standard for a “peakload” need, and it strongly suggests that Plaintiffs do

not meet the regulatory standard for a “one-time occurrence.” Plaintiffs also appear to ask the

Court to compel USCIS to change the category of temporary need under which they or the putative

class members applied for H-2B classification (i.e., from peakload to one-time occurrence or vice

versa). FAC ¶ 134. They have failed to state a claim for such relief because they have not

identified any law suggesting USCIS is required to perform the action they seek to compel, nor


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alleged any facts indicating that such a change would make any of their petitions approvable.

In sum, USCIS’s decision making cannot be reviewed in the summary fashion that

Plaintiffs suggest and any claims alleging USCIS’s decisions denying Plaintiffs’ or the putative

class members’ petitions were per se arbitrary, capricious, an abuse of discretion, or otherwise

contrary to law fail to state a claim and must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

2. USCIS is not bound by the Guam DOL’s determination of temporary need and it may deny an H-2B petition, without presenting countervailing evidence, if it determines that a petitioner’s need for the labor or services in the approved temporary labor certification is not temporary in nature (Counts I, V)

Plaintiffs contend USCIS unlawfully denied their and the putative class members’ H-2B

petitions because the Guam DOL had already assessed their temporary need and USCIS was either

bound by this determination, or alternatively, could not “reverse” this determination without

presenting countervailing evidence. See FAC ¶ 133, 156. Plaintiffs raise this claim in their

amended complaint despite the fact that, as Defendants explained in their Opposition to Plaintiffs’

Motion for Preliminary Injunction, ECF No. 13 at 16–17, it has no basis in law and is directly

contradicted by DHS regulations. See 8 C.F.R. § 214.2(h)(1)(ii)(D) (“The temporary or permanent

nature of the services or labor described on the approved temporary labor certification are subject

to review by USCIS.” ).

Guam DOL provides eligible H-2B petitioners with an approved temporary labor

certification stating that qualified workers in the United States are not available to perform the

required services, and that the alien’s employment will not adversely affect the wages and working

conditions of United States resident workers who are similarly employed on Guam. 8 C.F.R.

214.2(h)(6)(v)(A). In that process, Guam DOL may request information regarding the petitioner’s

temporary need for the labor or service to be performed by H-2B workers. Nevertheless, USCIS

retains authority to evaluate the nature of the petitioner’s need for such labor or service at the time


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it adjudicates the H-2B petition. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b), 1184(c). Accordingly, any

redundancy in the application process is intentional:

The regulation contemplates a double-check system to ensure that the job in question is in fact temporary in nature. First, when seeking a temporary labor certification with DOL, the employer must not only describe to DOL the nature, scope, and duration of the temporary job, but also justify the need for temporary workers to fill those jobs for which U.S. workers are not available. USCIS will approve the H-2B petition for the validity period endorsed by the DOL on the approved temporary labor certification. If the temporary labor certification is not endorsed for the full validity period requested by the employer on the H-2B petition, USCIS will require an extension petition to be filed with a current temporary labor certification covering the extended validity period.

Second, DHS retains the authority, even after DOL approves the temporary labor certification, to determine, at the time it adjudicates the H-2B petition, whether the petitioner’s need is in fact temporary, that is, of a limited, finite nature. Similarly, DHS has the authority to revoke such a petition if it determines that the job is in fact not temporary in nature.

73 Fed. Reg. at 78119. Because DHS regulations explicitly authorize USCIS (the Secretary’s

designee for deciding the question of whether an employer may import foreign labor in any specific

case or specific cases) to evaluate a petitioner’s need for the labor or services in an approved

temporary labor certification, Plaintiffs’ claim that USCIS is bound by the Guam DOL’s

determination of temporary need is meritless.

Moreover, the case on which Plaintiffs rely to argue that USCIS cannot “reverse” the Guam

DOL’s determination of temporary need absent countervailing evidence, Matter of Golden Dragon

Chinese Restaurant [“Golden Dragon”], 19 I. & N. Dec. 238 (Comm’r 1984), does not support

their argument and, in fact, contradicts it. The petitioner in Golden Dragon alleged that the former

Immigration & Naturalization Service (“INS”) erred in relying on DOL’s refusal to issue a labor

certification to deny its H-2B petition and argued that INS was required to review its petition on

the merits regardless of whether DOL issued a temporary labor certification. The INS

commissioner agreed that DOL’s role was advisory and that “determinations by the Department


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of Labor are not binding on the Immigration and Naturalization Service,” but upon reviewing the

record, he found it supported DOL’s determination that the petitioner did not have a temporary

need for the position it sought to fill with an H-2B worker. Id. (emphasis added). In so finding,

the commissioner cited a (now defunct) regulation permitting a petitioner to seek H-2B

classification for a position, despite DOL’s refusal to issue a temporary labor certification, if the

petitioner submitted countervailing evidence demonstrating the “inapplicability” of DOL’s

determination. Id. (emphasis added). Nothing in Golden Dragon suggests that USCIS must

present countervailing evidence if it disagrees with DOL’s assessment of a petitioner’s need for

the labor or services to be performed by H-2B workers; to the contrary, it indicates that USCIS

must independently review the nature of a petitioner’s need for the labor or services that DOL

approved in a temporary labor certification. See id. (“Hopefully, an INS administrative adjudicator

would not for[]go independent review of a temporary worker petition in favor of blind acceptance

of a determination made by another agency functioning in an advisory capacity.”). Accordingly,

Plaintiffs’ allegation that USCIS must present countervailing evidence has no basis in law and

must be dismissed.

3. Plaintiffs do not identify the “change in interpretation” on which they allege USCIS relied to deny their and the putative class members’ H-2B petitions and they fail to identify any rule that USCIS should have, but did not, submit for notice & comment (Count II)

Plaintiffs allege they and the proposed class “have the right to review of the agency

decisions under 5 U.S.C. §553,”6 and they contend “Defendants’ adoption of a new agency

interpretation of ‘peakload’ and ‘one-time occurrence,’ without any change in the law or

6 Contrary to Plaintiffs’ allegations, § 553 does not provide any party any right to judicial review. That is not to say that the procedural requirements in § 553 are not enforceable. If a party challenges an agency action that is otherwise reviewable under the APA, then pursuant to § 706(2)(D), a reviewing court can “hold unlawful and set aside” agency action, findings, and conclusions that are “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).


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regulations, without notice and comment procedures to the public and with no change in the

operative facts, constitutes substantive rulemaking without the required notice and opportunity for

comment under 5 U.S.C. §553.” FAC ¶¶ 140-41. Because Plaintiffs do not identify any rule or

policy statement implementing the alleged “new agency interpretation,” Defendants are left to

assume that the “agency decisions” of which they allege they have a right to review consist of

USCIS’s decisions denying their and the putative class members’ H-2B petitions. But these

decisions, which were issued in the context of USCIS’s adjudication of H-2B petitions, do not fall

within the purview of 5 U.S.C. § 553, which, on its face, applies only to rulemaking.7 Because

Plaintiffs point to no “action” that can be reasonably understood to constitute a “rule,” much less

a “substantive rule” subject to notice and comment rulemaking, they have failed to state a

cognizable notice and comment claim, and Count II should be dismissed.

Plaintiffs allege no facts that plausibly show Defendants adopted a new interpretation of

“peakload” or “one-time occurrence” standard of temporary need.8 Instead, Plaintiffs rely solely

on statistics issued by the Guam DOL, which indicate that the denial rate of H-2B petitions for

petitioners in Guam increased in 2016. See FAC, Exhibit 1, ECF 23-1 and Exhibit 2, ECF 23-2.9

7 The APA establishes the procedures federal administrative agencies must use for “rule making” and “adjudication.” As defined by the APA, “rulemaking” is the “agency process for formulating, amending, or repealing a rule,” 5 U.S.C. § 551(5), and a “rule” is “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing,” 5 U.S.C. § 551(4). Adjudication, by contrast, “means agency process for the formulation of an order.” 5 U.S.C. § 551(7). An order is defined as “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing,” 5 U.S.C. § 551(6). 8 Defendants have not changed their interpretation of either standard. See FAC, Exhibit 15, ECF No. 23-21; Def. Opp’n to Pl. Mot. for Prelim. Inj., ECF No. 13 at 12-15. 9 In deciding Plaintiffs’ claims, the Court may only consider these statistics if Plaintiffs presented them to USCIS in the course of its adjudication of the H-2B petitions of which they seek review. Cf. IKEA US, Inc. v. Department of Justice, 48 F.Supp.2d 22, 25 (D.D.C.1999) (INS did not act arbitrarily and capriciously


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Plaintiffs’ contention that unspecified previous approvals10 or unspecified precedent established a

“definitive interpretation” of the regulations defining the “peakload” and “one-time occurrence”

standards of temporary need is wholly without merit. Their citation to alleged outcomes in other

visa petition proceedings, without any factual context, does not plausibly show that USCIS

implemented a new interpretation of the “peakload” or “one-time occurrence” standard of

temporary need. Cf. Fogo De Chao, 769 F.3d at 1146 (“Simply identifying outcomes, stripped of

their contextual analysis, falls far short of the documented record of ‘express, direct and uniform

interpretation’ by the agency required before a fixed legal rule will be discerned.”) (quoting Alaska

Professional Hunters Ass'n, Inc. v. F.A.A., 177 F.3d 1030, 1034 (D.C. Cir. 1999), abrogated by

Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199 (2015)). Nor can Plaintiffs plausibly allege that

Defendants are bound by the approval of petitions in previous years. “[A] definitive legal rule

cannot be wrung out of a pattern of decisions unless the decisionmaker has ‘the authority to bind

the agency.’” Id. (citing Devon Energy Corp. v. Kempthorne, 551 F.3d 1030, 1040 (D.C. Cir.

2008)). Plaintiffs have alleged no facts showing the decision makers who approved these earlier

decisions had such authority. Petitions approved in previous years were presumably evaluated by

an adjudicator at a USCIS service center, who would not have authority to bind the agency, and

their amended complaint does not identify any precedential decisions that allegedly conflict with

the reasoning on which USCIS relied to deny the “agency decisions.” FAC ¶ 140-141; see 8 C.F.R.

§ 103.3(c) (clarifying that only designated AAO decisions “are to serve as precedents in all

proceedings involving the same issue(s)”).

Moreover, even if Plaintiffs’ could somehow establish that USCIS had changed its

in failing to distinguish previous visa petition’s approval where the employer failed to submit the file to INS for its consideration), aff'd No. 99–5159, 1999 WL 825420 (D.C.Cir. Sept. 27, 1999).10 While Plaintiffs do identify some petitions that have been approved in the past, ECF 23-20, these appear to be intended as examples of a vaguely defined larger pattern. See Exhibit 2, ECF 23-2.


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interpretation of the standards for temporary need set forth in the regulations, any argument that

such a change in interpretation would require notice and comment rulemaking is clearly foreclosed

by the Supreme Court’s decision in Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199 (2015),

which held that a court cannot mandate an agency go through notice and comment procedures

before changing its interpretation of a regulation it is tasked with enforcing. Id. at 1205–1210

(abrogating the doctrine announced by D.C. Circuit in Paralyzed Veterans of America v. D.C.

Arena L.P., 117 F.3d 579 (D.C. Cir. 1997) and Alaska Professional Hunters Ass'n, Inc. v. F.A.A.,

177 F.3d 1030 (D.C. Cir. 1999)). The case Plaintiffs cite to suggest otherwise, Encino Motorcars

v. Navarro, 136 S.Ct. 2117, does not support their claim. FAC ¶ 141. In Encino Motorcars, the

Court found a rule (which had been promulgated through notice and comment rulemaking) was

not entitled to deference because DOL had not sufficiently explained why it decided to overrule

the position it took in a prior rule. Id. at 2125–26. The Court did not hold that DOL could not

apply the rule because it had not been subject to notice and comment rulemaking (it had). Encino

Motorcars therefore does not support Plaintiffs’ assertion that USCIS cannot change its

interpretation of a regulation without going through notice and comment rulemaking.

4. Plaintiffs do not identify the evidence USCIS allegedly ignored in adjudicating their petitions (Count I, III, IV, V)

Plaintiffs allege “Defendants’ denial of Plaintiffs’ and the Proposed Class’ H-2B petitions

are unsupported by substantial evidence in the record, and the denial therefore violates 5 U.S.C. §

706(2)(E).” FAC ¶ 146. In raising this allegation, Plaintiffs fail to recognize that § 706(2)(E) does

not apply to USCIS’s adjudication of nonimmigrant visa petitions. Section 706(2)(E) authorizes

a reviewing court to hold unlawful and set aside agency action “unsupported by substantial

evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record

of an agency hearing provided by statute,” and sections 556 and 557 are not applicable to USCIS’s


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adjudication of H-2B petitions, as they “need be applied only where the agency statute, in addition

to providing a hearing, prescribes explicitly that it be on the record.” See United States v.

Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757 (1972) (internal quotations and citations

omitted). Here, neither the INA nor its implementing regulations require USCIS to hold a hearing

on the record when adjudicating an employer’s petition to import nonimmigrant workers.

Accordingly, Plaintiff's claims under Section 706(2)(E) must be dismissed.

To the extent Plaintiffs intended to bring this claim under § 706(2)(A), they have failed to

plead any facts that plausibly show Plaintiffs or the putative class members have “submitted

significant evidence to USCIS that demonstrated that the need is a peakload or one-time occurrence

need.” Nor have they pled any facts that plausibly show “Defendants failed to consider this

substantial evidence demonstrating a peakload or one time occurrence need.” FAC ¶ 149.

Plaintiffs’ conclusory allegations, standing alone, are not sufficient to raise a claim for relief. See

Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.”).

5. Any claims challenging USCIS’s action on H-2B Petitions that have not yet been filed or which are still pending before USCIS do not challenge a “final agency action” and must be dismissed

A review of Plaintiffs’ amended complaint and the exhibits attached thereto reveal that

Plaintiffs’ broadly framed requests for injunctive relief would affect USCIS’s adjudication of H-

2B petitions that have not yet been filed or are still pending before the agency—either because (1)

a USCIS service center has issued a Request for Evidence (“RFE”) and is awaiting the petitioner’s

response or has received the petitioner’s response and is in the process of formulating a final

decision, or (2) a USCIS service center denied the petition and the petitioner has sought an

administrative appeal before the USCIS AAO, and the AAO is still in the process of formulating

its decision. See, e.g., FAC ¶ 124 (defining putative class as including petitioners who, inter alia,


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“will file an I-129 application for H2B for Guam” and who “will receive a denial of such I-129

application based on a finding that the Petitioner is unable to demonstrate “temporary need”)

(emphasis added); FAC, Exhibit 20 (indicating some H-2B petitions filed by Plaintiffs are

undergoing an RFE or are currently pending on appeal before the AAO).11 Any claims related to

USCIS’s actions on these petitions are not properly before the Court, as there is no “final agency

action” subject to review.

Final agency actions are those actions that (1) mark the consummation of the agency’s

decision making process, i.e., are not merely tentative or interlocutory in nature; and (2) determine

rights or obligations or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154,

177–78 (1997). USCIS’s issuance of an “RFE” does not mark the consummation of USCIS’s

decision-making process. See True Capital Mgmt., LLC v. U.S. Dep’t of Homeland Sec., No. 13-

261 JSC, 2013 WL 3157904, at *1 (N.D. Cal. June 20, 2013) (“The . . . Request for Additional

Evidence renders [the agency’s] decision non-final and therefore not subject to review under the

APA.”). And courts have held that where a visa petition is pending before the AAO, agency action

is not “final” for purposes of judicial review. E.g., Church v. United States, Case No. 12-CV-

3990, 2013 WL 12064271, at *1 (C.D. Cal. May 15, 2013); Bhasin v. United States Dep't of

Homeland Sec., 413 Fed. Appx. 983 (9th Cir. 2011); Dridi v. Chertoff, 412 F. Supp. 2d 465, 468

(E.D. Pa. 2005). Accordingly, to the extent Plaintiffs’ claims challenge USCIS’s actions on

petitions that are currently pending before USCIS service centers or the AAO, or which have not

yet been filed, such claims must be dismissed because they do not seek review of “final agency

action,” as required by 5 U.S.C. §§ 702, 704.

11 Plaintiffs’ amended complaint further indicates that some Plaintiffs withdrew or abandoned at least one H-2B petition after USCIS issued an RFE. See FAC, Exhibit 20 (indicating Ace Builders, Guam Tropical Dive Station, Guam XRay, and Landscape Management all either failed to respond to an RFE or withdrew a petition after the issuance of an RFE). All claims relating such petitions should be dismissed as moot.


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Plaintiffs Fail To State A Claim for Equitable Estoppel

Plaintiffs allege Defendants have granted H-2B petitions based on the same set of operative

facts and without a change in the law and contend that Defendants should therefore be estopped

from denying “an identical petition based on the same set of adjudicative facts and without a

subsequent change in the law or regulations regarding what constitutes a peakload or one-time

occurrence need.” FAC ¶ 162. This claim must be dismissed because, as explained above,

Plaintiffs cannot reasonably rely on prior approvals of H-2B petitions as a guarantee that USCIS

will approve petitions for the same position in the future. But even more fundamentally, Plaintiffs

fail to allege any facts showing an essential element to any claim for estoppel against the

government: affirmative misconduct. See, e.g., Jaa v. I.N.S., 779 F.2d 569, 572 (9th Cir. 1986)

(rejecting claim for estoppel where plaintiff did not show affirmative misconduct on the part of

the government); Cf. Office of Pers. Management v. Richmond, 496 U.S. 414, 419, 110 S. Ct. 2465,

2469, 110 L. Ed. 2d 387 (1990) (“equitable estoppel will not lie against the Government as against

private litigants”) (citation omitted); Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir.

2007) (“we have reiterated, with regularity bordering on the echolalic, that estoppel rarely will be

invoked against the federal government.”). Accordingly, because Plaintiffs do not, and cannot

allege any affirmative misconduct by USCIS, this claim must be dismissed.

Attorney General Loretta Lynch Is Not Properly Named As a Defendant

Finally, Plaintiffs improperly name Loretta Lynch, the Attorney General of the United

States, as a defendant in this action. The Homeland Security Act of 2002 abolished the INS (a

former component agency of the Department of Justice) and transferred its functions to DHS. See

Pub. L. No. 107-269, 116 Stat. 2135 (Nov. 25, 2002). USCIS, a component of DHS, is the agency

tasked with adjudicating immigration benefits. The Attorney General does not play any role in the

adjudication of H-2B petitions and is therefore not properly named as a defendant in this action.


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See, e.g., Hong Wang v. Chertoff, 550 F. Supp. 2d 1253, 1258 (W.D. Wash. 2008).

CONCLUSION

For the foregoing reasons, the Court should dismiss Plaintiffs’ Amended Complaint in its

entirety under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

Respectfully submitted this 6th day of January, 2016.

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

WILLIAM C. PEACHEY Director

GLENN M. GIRDHARRY Assistant Director

By: /s/ Heather Sokolower HEATHER SOKOLOWER Trial Attorney

Attorneys for Defendants


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