Rossville Convenience & Gas, Inc. v. Barr ( 2020 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ____________________________________
    )
    ROSSVILLE CONVENIENCE               )
    & GAS, INC., et al.,                )
    )
    Plaintiffs,    )
    )
    v.                            )                   Civil Action No. 18-2630 (ABJ)
    )
    WILLIAM P. BARR, et al.,            )
    )
    Defendants.    )
    ____________________________________)
    MEMORANDUM OPINOIN
    Plaintiffs Rossville Convenient & Gas, Inc. (“Rossville”) and Mansoor N. Charaniya
    brought this action against William P. Barr, Attorney General of the United States; Barbara Q.
    Velarde, Chief of Administrative Appeals at the United States Citizenship and Immigration
    Services (“USCIS”); and several other officials within the Department of Homeland Security.
    They challenge a determination made by the Administrative Appeals Office (“AAO”) of USCIS
    to dismiss their appeal of a USCIS decision to deny a Form I-140 Immigration Petition for Alien
    Worker. See generally Complaint [Dkt. # 1] (“Compl.”). They seek declaratory, injunctive, and
    other forms of miscellaneous relief. Compl. at 8–9. Defendants have moved to transfer the case
    to the Northern or Southern Districts of Texas or, in the alternative, to dismiss the complaint for
    failure to state a claim. See Defs.’ Mot. to Dismiss [Dkt. # 8] (“Defs.’ Mot”); Defs.’ Mem. of P.
    & A. in Supp. of Defs.’ Mot. to Transfer or, in the Alternative, to Dismiss [Dkt. # 8-1] (Defs.’
    Mem.). For the following reasons, the Court will deny defendants’ motion to transfer, and it will
    dismiss plaintiffs’ complaint, but without prejudice.
    BACKGROUND
    This lawsuit stems from plaintiffs’ attempt to have Charaniya, a native and citizen of India,
    approved as an alien worker by the USCIS. Compl. ¶ 14. Charaniya was the beneficiary of a
    Department of Labor-approved Labor Certification filed by Rossville in 2002. Compl. ¶ 13. That
    Certification is required for an employer to file a Form I-140 petition – the petition for an alien
    worker visa. Defs.’ Mem. at 4–5.
    On November 5, 2003, Rossville submitted an I-140 petition on Charaniya’s behalf.
    Compl. ¶ 14. On October 20, 2004, USCIS issued a Notice of Intent to Deny plaintiffs’ petition.
    Compl. ¶ 15. Plaintiffs responded to USCIS with “requested evidence.” Compl. ¶ 15.
    On March 15, 2017, USCIS denied plaintiffs’ I-140 petition, Compl. ¶ 16, and plaintiffs
    filed a time appeal to the Administrative Appeals Office on May 10, 2017. Compl. ¶ 17. On
    August 16, 2018, the AAO dismissed plaintiffs’ appeal. Compl. ¶ 18.
    Plaintiffs filed the three count complaint in this matter on November 15, 2018. See Compl.
    ¶¶ 19–25. As relief, they seek a declaratory judgment that they properly established Charaniya’s
    qualifications for an Form I-140 petition approval; Charaniya properly “ported” to his new
    employer; and they are entitled to the process that flows from a properly filed petition; and an
    order that defendants must a) reopen the Form I-140 petition, b) declare that their determination
    that Charaniya was not eligible to port was erroneous, and c) adjudicate and approve the Form I-
    140 petition. Compl. at 8–9. They also seek injunction prohibiting USCIS from relying on the
    information contained in its allegedly erroneous prior decision to deny plaintiffs’ renewed petition,
    as well as attorneys’ fees and costs, and other relief. Compl. at 9.
    On March 29, 2019, defendants moved to transfer the case to the Northern or Southern
    Districts of Texas, which they contend are “more appropriate” venues than the District of
    2
    Columbia. Defs.’ Mem. at 7–12. Plaintiffs oppose the transfer. Pl.’s Mem. of P. & A. in Opp. to
    Defs.’ Mot. to Transfer or Dismiss [Dkt. # 10] (“Pl.’s Opp.”). 1 In the alternative, defendants
    moved to dismiss the complaint for failure to state a claim. See generally Defs.’ Mem. at 12–16.
    ANALYSIS
    I.      Motion to Transfer
    A. Standard of Review
    “For the convenience of parties and witnesses, in the interest of justice, a district court may
    transfer any civil action to any other district or division where it might have been brought.” 28
    U.S.C. § 1404(a). The Court has “broad discretion” to transfer a case under section 1404. In re
    Scott, 
    709 F.2d 717
    , 719 (D.C. Cir. 1983). The defendant, as the moving party, bears the burden
    of establishing that transfer is proper. Greater Yellowstone Coal. v. Bosworth, 
    180 F. Supp. 2d 124
    , 127 (D.D.C. 2001). The decision to transfer requires an “individualized, case-by-case
    consideration of convenience and fairness.” Van Dusen v. Barrack, 
    376 U.S. 612
    , 622 (1964).
    The threshold question under section 1404(a) is whether the action “might have been
    brought” in the transferee district. 28 U.S.C. § 1404(a). This limitation imposes two prerequisites:
    (1) “venue must be proper in the transferee district;” and (2) “the defendants must be subject to
    the process of the federal court in the transferee district at the time the action was originally filed.”
    Relf v. Gasch, 
    511 F.2d 804
    , 806–07 (D.C. Cir. 1975).
    Venue in a civil case is proper in:
    (1)     a judicial district in which any defendant resides, if all defendants
    are residents of the State in which the district is located;
    1      Defendants filed a Reply to plaintiffs’ opposition on June 14, 2019. [Dkt. # 12] (“Defs.’s
    Reply”).
    3
    (2)     a judicial district in which a substantial part of the events or
    omissions giving rise to the claim occurred, or a substantial part of
    property that is the subject of the action is situated; or
    (3)     if there is no district in which an action may otherwise be brought
    as provided in this section, any judicial district in which any
    defendant is subject to the court's personal jurisdiction with respect
    to such action.
    28 U.S.C. § 1391(b).
    If the threshold requirement of venue has been met, the Court must then go on to balance
    case-specific private interest and public interest factors to determine whether transfer is
    appropriate. See Wilderness Soc’y v. Babbitt, 
    104 F. Supp. 2d 10
    , 12 (D.D.C. 2000). Private
    interest considerations include:
    (1)     the plaintiffs’ choice of forum, unless the balance of convenience is
    strongly in favor of the defendants;
    (2)     the defendants’ choice of forum;
    (3)     whether the claim arose elsewhere;
    (4)     the convenience of the parties;
    (5)     the convenience of the witnesses of the plaintiff and defendant but
    only to the extent that the witnesses may actually be unavailable for
    trial in one of the fora; and
    (6)     the ease of access to sources of proof.
    Trout Unlimited v. U.S. Dep’t of Agric., 
    944 F. Supp. 13
    , 16 (D.D.C. 1996). And the public interest
    considerations include:
    (1) the transferee’s familiarity with the governing laws;
    (2) the relative congestion of the calendars of the potential transferee and
    transferor courts; and
    (3) the local interest in deciding local controversies at home.
    Id. 4 B.
    The case will not be transferred to the Northern or Southern Districts of Texas.
    Defendants seek to transfer the case to either the Northern or Southern Districts of Texas,
    which they characterize as “infinitely more appropriate venues than this judicial district,” Defs.’
    Mem. at 7, because “plaintiffs are located” there, and the case was administratively adjudicated
    there. Defs.’ Mem. at 7. They do not argue that venue is not proper in the District of Columbia.
    Based on the fact that the March 15, 2017 decision to deny plaintiffs’ I-140 petition was
    issued in the Northern District of Texas, see Ex. D to Compl. [Dkt. # 1-5] (“I-140 Denial Letter”)
    at 1, 2 plaintiffs could have brought the action in that jurisdiction. However, just because a case
    can be brought in one venue does not necessarily mean that it was not properly brought in another. 3
    A plaintiff is not required to “bring suit in the district where the most substantial portion
    of the relevant events occurred,” Modaressi v. Vedadi, 
    441 F. Supp. 2d 51
    , 57 (D.D.C. 2006);
    courts are directed to undertake a “common sense appraisal” of the “events having operative
    significance in the case,” Lamont v. Haig, 
    590 F.2d 1124
    , 1134 (D.C. Cir. 1978), to determine
    where venue is proper.
    Plaintiffs identifies several reasons why venue is equally or more appropriate in the District
    of Columbia: defendant Barbara Q. Velarde, the Chief of the Administrative Appeals Office of
    2      The I-140 Denial Letter, along with other documents relevant to the administrative events
    underlying this case, was attached as an exhibit to the complaint and is incorporated therein.
    Gustave-Schmidt v. Chao, 
    226 F. Supp. 2d 191
    , 196 (D.D.C. 2002), citing EEOC v. St. Francis
    Xavier Parochial Sch., 
    117 F.3d 621
    , 624–25 (D.C. Cir. 1997).
    3      Defendants also argue that the case could be brought in the Southern District of Texas
    because “[Rossville’s] address is . . . [in] Sugarland, Texas, which is a Houston suburb,” in the
    Southern District of Texas. Defs.’ Mem. at 9. Plaintiffs, however, clarify in their opposition that
    the address in Sugarland is the personal address of a representative of Rossville, and not Rossville’s
    principal place of business. Pls.’ Opp. at 14. Instead, Rossville’s primary place of business is in
    Chattanooga, Tennessee. Pl.’s Opp. at 14. Accordingly, defendants’ argument that the case could
    be brought in the Southern District of Texas is not supported by the facts.
    5
    USCIS resides in Washington, D.C.; both Charaniya’s residence and Rossville’s primary place of
    business are in Tennessee, which is closer to the District of Columbia than Texas; the case does
    not involve Texas state law; the district court caseloads in Texas are greater than in the District of
    Columbia; and it is “unlikely . . . extensive discovery of evidence” will be uncovered in Texas.
    Pls.’ Opp. at 11. Furthermore, the final ruling to dismiss plaintiffs’ appeal by the USCIS
    Administrative Appeals Office was issued in Washington, D.C., where the Department of
    Homeland Security is headquartered. See Ex. F to Compl. [Dkt. # 1-10] (“Dismissal Letter”) at 1.
    Based on these reasons, plaintiffs submit that their choice to bring the case in the District of
    Columbia should be upheld. Pls.’ Opp. at 16.
    The Court will decline to transfer the case because the public and private interests weigh
    more heavily against transferring the case.
    1. The private factors
    i. Plaintiffs’ choice of forum
    Plaintiffs chose to bring the case in the District of Columbia, and the D.C. Circuit has long
    held that “a plaintiff’s choice of forum will rarely be disturbed . . . unless the balance of
    convenience is strongly in favor of the defendant.” Gross v. Owen, 
    221 F.2d 94
    , 95 (D.C. Cir.
    1955). Although the initial denial of plaintiffs’ I-140 petition was decided in Texas, the decision
    on which this case is based – the dismissal of plaintiffs’ appeal of the I-140 petition denial – was
    issued in the District of Columbia, where the Department of Homeland Security is located. Indeed,
    defendant Velarde, who issued the dismissal and is sued in her official capacity as a USCIS
    employee, resides in the District of Columbia. These factors, along with the deference accorded
    to plaintiffs’ choice of venue, weigh heavily against transferring the case, particularly in the
    6
    absence of any showing that the venue is at all inconvenient for the defendants, who are
    represented by the United States Attorney’s Office for the District of Columbia.
    ii. Defendants’ choice of forum
    Unlike plaintiffs’ choice of venue, a defendant’s choice is not ordinarily accorded
    deference unless it can “establish that the added convenience and justice of litigating in its chosen
    forum overcomes the deference ordinarily given to the plaintiff’s choice.” Sheffer v. Novartis
    Pharms. Corp., 
    873 F. Supp. 2d 371
    , 376 (D.D.C. 2012). Here, defendants argue that “at least one
    [d]efendant resides in the Northern District of Texas,” because that is where the I-140 denial was
    issued, and that “a substantial part of the events or omissions giving rise to [p]laintiffs’ claims
    occurred in the Northern District of Texas.” Defs.’ Mem. at 8–9. Defendants also contend that
    plaintiffs’ choice is entitled to less deference because it is not their home forum and there are no
    “meaningful ties” between the District of Columbia and the controversy at issue. Defs.’ Mem.
    at 10.
    The Court agrees that since neither plaintiff resides in the District of Columbia, their choice
    to bring the action here is entitled to somewhat less deference. See New Hope Power Co. v. U.S.
    Army Corps of Engineers, 
    724 F. Supp. 2d 90
    , 95 (D.D.C. 2010). Still, neither plaintiff resides in
    the Northern District of Texas either, only one defendant lives there, and the defendant’s residence
    has absolutely no bearing upon a decision to be based on the applicable law and the administrative
    record on appeal. It is not as if anyone is going to have to testify or produce documents that have
    not already been gathered. So this factor only weighs slightly in favor of transferring the case, if
    at all.
    7
    iii. Convenience of the parties and where the claims arose
    Given the similarities between the third and fourth factors in this case, the Court will
    analyze them together. The third factor asks where the claim arose, and when “the material events
    that form the factual predicate of the plaintiff’s claim did not occur in the plaintiff’s chosen forum,
    transfer is favored.” 
    Sheffer, 873 F. Supp. 2d at 376
    . The fourth factor requires to Court to
    determine whether one of the venues is more convenient for the parties. The Court finds that these
    interests are neutral. Neither party has particularly strong ties to either venue: the case involves
    actions by a District of Columbia-based government agency and has some District-based
    defendants, and the case also has Northern District of Texas connections and at least one defendant
    residing there. Because at least some of the material acts that are a part of the factual predicate for
    the claims took place in this District, while some administrative action took place in the Northern
    District of Texas, at best for the defendant, these two factors come out as neutral.
    iv. Convenience of the witnesses
    The same is true of the fifth factor – the convenience of witnesses. This consideration has
    been described as “the most critical factor” on a motion to transfer. Pyrocap Int’l Corp. v. Ford
    Motor Co., 
    259 F. Supp. 2d 92
    , 97 (D.D.C. 2003). Despite its importance, however, this factor is
    only considered “to the extent that the witness may actually be unavailable for trial in one of the
    fora,” Bederson v. United States, 
    756 F. Supp. 2d 38
    , 49 (D.D.C. 2010), which must be proven
    with evidence.
    Id. Here, the
    defense has not even suggested that this APA case will involve
    witnesses. And neither side argues that if there were an evidentiary hearing, any prospective
    witness would be unavailable. For that reason, this factor is also neutral.
    8
    v.      Ease of access to sources of proof
    Finally, the sixth private factor to be considered is the parties’ ease of access to sources of
    proof. Trout 
    Unlimited, 944 F. Supp. at 16
    . This factor is also neutral because this is a case with
    a paper record, and no additional discovery should be necessary in either venue. Indeed, plaintiffs
    are the only party to address this factor, and they reasonably point out that “extensive discovery of
    evidence in the Northern . . . District of Texas is unlikely.” Pls.’ Reply at 11.
    In sum, based on a review of the private factors, and particularly in light of the rule that
    plaintiffs’ choice of forum is entitled to deference, the Court finds that the private factors weigh
    more heavily in favor of not transferring the case.
    2. The public factors
    Next, the Court must weigh the three public interest factors, and here, it finds that when
    taken together, the factors come out as neutral. The first factor is “the transferee forum’s
    familiarity with the governing laws and pendency of related actions in that forum.” Ctr. for
    Environ. Science, Accuracy, and Reliability v. Nat’l Park Serv., 
    75 F. Supp. 3d 353
    , 358 (D.D.C.
    2014). Here, plaintiffs’ claims arise under federal laws, which “[a]ll district courts are presumed
    to be equally adept at applying.” 
    Sheffer, 873 F. Supp. 2d at 379
    , citing In re Korean Air Lines
    Disaster of Sept. 1, 1983, 
    829 F.2d 1171
    , 1175 (D.C. Cir. 1987). The first factor, accordingly, is
    a wash.
    The second factor, which requires the Court to assess the relative congestion of each court,
    weighs somewhat against transferring the case as plaintiffs’ opposition notes that “the calendar in
    the Northern . . . District of Texas [is] far more congested than the calendar in this district.” Pls.’
    Opp. at 15.
    9
    But the final factor, the local interest in deciding the case, could weigh slightly in favor of
    transferring the case because plaintiffs’ I-140 petition was denied in the Northern District of Texas.
    That interest is somewhat reduced, though, because there is minimal local interest in resolving
    matters related to I-140 and I-485 petitions, which are issued in accordance with federal laws and
    regulations, and plaintiffs’ appeal, which is the primary focus of the complaint, was issued in
    Washington, D.C. So there is also some interest in Washington, D.C. as the seat of the federal
    government, where immigration policy is often developed and enforced. Viewed in their totality,
    then, the public interest factors come out as neutral.
    After weighing the necessary public and private interest factors, the Court concludes that
    they do not favor transfer, and the motion to transfer will be denied.
    II. Motion to Dismiss
    A. Standard of Review
    “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
    matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
    
    556 U.S. 662
    , 678 (2009), quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007). In Iqbal,
    the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the
    tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
    to legal conclusions.” 
    Iqbal, 556 U.S. at 678
    . And “[s]econd, only a complaint that states a
    plausible claim for relief survives a motion to dismiss.”
    Id. at 679,
    citing 
    Twombly, 550 U.S. at 556
    .
    A claim is facially plausible when the pleaded factual content “allows the court to draw the
    reasonable inference that the defendant is liable for the misconduct alleged.” 
    Iqbal, 556 U.S. at 678
    . “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than
    10
    a sheer possibility that a defendant has acted unlawfully.”
    Id. A pleading
    must offer more than
    “labels and conclusions” or a “formulaic recitation of the elements of a cause of action,”
    id., quoting Twombly,
    550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action,
    supported by mere conclusory statements, do not suffice.”
    Id. In evaluating
    a motion to dismiss under Rule 12(b)(6), a court must “treat the complaint’s
    factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived
    from the facts alleged.’” Sparrow v. United Air Lines, Inc., 
    216 F.3d 1111
    , 1113 (D.C. Cir. 2000)
    (internal citation omitted), quoting Schuler v. United States, 
    617 F.2d 605
    , 608 (D.C. Cir. 1979);
    see also Am. Nat’l Ins. Co. v. FDIC, 
    642 F.3d 1137
    , 1139 (D.C. Cir. 2011), quoting Thomas v.
    Principi, 
    394 F.3d 970
    , 972 (D.C. Cir. 2005). Therefore, when considering a motion to dismiss, a
    court must construe a complaint liberally in the plaintiff’s favor. Kowal v. MCI Commc’ns Corp.,
    
    16 F.3d 1271
    , 1276 (D.C. Cir. 1994). Nevertheless, the court need not accept inferences drawn by
    the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the
    court accept plaintiff’s legal conclusions. Id.; see also Browning v. Clinton, 
    292 F.3d 235
    , 242
    (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may
    ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or
    incorporated by reference in the complaint, and matters about which the Court may take judicial
    notice.” Gustave-Schmidt v. Chao, 
    226 F. Supp. 2d 191
    , 196 (D.D.C. 2002), citing EEOC v. St.
    Francis Xavier Parochial Sch., 
    117 F.3d 621
    , 624–25 (D.C. Cir. 1997).
    B. The complaint will be dismissed without prejudice for failure to state a claim.
    Defendants moved to dismiss the complaint under Rule 12(b)(6), arguing that the
    complaint fails to adequately allege that “[d]efendants’ denial of plaintiffs’ I-140 petition was
    arbitrary, capricious, or contrary to law in violation of the APA,” Defs.’ Mem. at 12, or that
    11
    defendants unlawfully denied their I-485 application, which permits an “‘alien to apply for
    adjustment of status to that of a permanent resident.’” 4 Defs.’ Mem. at 15, quoting Mawalla v.
    Chertoff, 
    468 F. Supp. 2d 177
    , 181 (D.D.C. 2007).
    Defendants’ motion also addresses the facts underlying plaintiffs’ I-140 and I-485 petitions
    and the merits of the agency’s determinations. See, e.g., Defs.’ Mem. at 14; 16. Plaintiff make a
    fair point when they complain that these fact-based arguments “appear[] much more like a Motion
    for Summary Judgment than a 12(b)(6) Motion.” Pl.’s Opp. at 17. Nonetheless, plaintiffs still
    have an obligation to set out plausible claims in their complaint, and this they have failed to do.
    In Claim I, plaintiffs allege that they are “eligible for the reopening and approval of the
    Form I-140, Immigrant Petition for Alien Worker,” and that “[d]efendants violated [p]laintiffs’
    statutory right to apply for relief . . . under the INA, depriving [p]laintiffs of the ultimate
    opportunity to employ Mr. Charaniya . . . and for [him] to utilize the 2002 priority date to adjust
    status to lawful permanent residence.” Compl. ¶¶ 19, 21. They also allege that they will continue
    to suffer harm because of defendants’ actions. Compl. ¶ 20.
    Plaintiffs cite section 1255(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a),
    as the basis for the claim, but it is unclear from the complaint and the text of that section whether
    it gives rise to a right of action or in what way plaintiffs contend that the statute was violated.
    Section 1255(a) says that “in his discretion” the Attorney General may adjust “[t]he status of an
    alien who was inspected and admitted . . . into the United States . . . to that of an alien lawfully
    4       Section 1255(a) of the Immigration and Nationality Act (the “Act”), 8 U.S.C. § 1255(a),
    provides that an alien worker may petition USCIS to become a lawful permanent resident under
    certain circumstances. To make that request, an applicant must file a Form I-485 petition. See
    Defs.’ Mem. at 15. Section 1154(j) of the Act extends the right to petition for lawful permanent
    residence when USCIS has taken more than 180 days to adjudicate a Form I-485 petition, even if
    the alien’s job changes in the interim. 8 U.S.C. § 1154(j). This provision is also known as the
    “Portability Provision.” See Defs.’ Mem. at 14–15.
    12
    admitted for permanent residence” if the petitioner meets three criteria: “(1) the alien makes an
    application for such an adjustment, (2) the alien is eligible to receive an immigrant visa and is
    admissible to the United States for permanent residence, and (3) an immigrant visa is immediately
    available to him at the time his application is filed.” 8 U.S.C. § 1255(a) (emphasis added). So,
    the provision is discretionary, not mandatory, and there are specific criteria that must be in place
    before that discretion can be exercised. Since the complaint does not allege that those have been
    satisfied – in particular that the alien petitioner has an approved visa – Claim I does not include
    the factual allegations needed to support a plausible claim that plaintiffs’ I-485 petition was
    wrongfully decided.
    Claim II alleges that plaintiffs have suffered a legal wrong or have been adversely affected
    or aggrieved by agency action, citing 5 U.S.C. §§ 702 and 704. Compl. ¶ 22. But section 702 of
    the APA simply grants a person aggrieved by agency action the right to seek judicial review,
    essentially serving as a waiver of sovereign immunity. See 5 U.S.C. § 702. It does not supply the
    grounds for a claim. And section 704 only says that “[a]gency action made reviewable by statute
    and final agency action for which there is no other adequate remedy in a court” is reviewable.
    Id. § 704.
    Neither provision grants courts the right to set aside agency action; that right is granted
    under section 706, and it is only available in limited circumstances. See
    id. § 706.
    But the complaint does not cite section 706 at all. Nor does it specify what plaintiffs are
    asking the Court to do under that provision – compel agency action unlawfully withheld or delayed
    under section 706(1)? Or have the USCIS decision set aside under section 706(2)? See 5 U.S.C.§
    706(1) and (2). Even if one assumes that this case is being brought under section 706(2) because
    the agency has already acted, are plaintiffs seeking to have the action overturned under 706(2)(a)
    as arbitrary and capricious? To set it aside under 706(2)(b) as unconstitutional? Or to have it
    13
    overturned for exceeding the agency’s statutory jurisdiction under 706(2)(c)? See
    id. § 706(2)(a)-
    (c).
    Plaintiffs clarified in their opposition that they meant to allege that “USCIS violated the
    APA by arbitrarily denying plaintiffs’ I-140,” and, therefore, it erred in later denying their I-485
    petition for lack of a valid I-140. Pl.’s Opp. at 17. But an opposition is not the operative document
    in a lawsuit. And even if one reads the complaint to recite in conclusory terms that section
    706(2)(a) has been violated in some way, the complaint lacks the factual allegations that would
    enable the Court to assess whether that has been plausibly alleged. In sum, Claim II is woefully
    deficient even under the most liberal pleading standards.
    Finally, in Claim III, plaintiffs say that defendants owe them “a clear and certain duty to
    reopen and adjudicate” their I-140 petition because Charaniya satisfies the “requirements in the
    Labor Certification Application,” and that they “failed to perform their duties in determining that
    [Charaniya] did in fact properly meet the requirements.” Compl. ¶¶ 23, 24. Here, plaintiffs fail to
    articulate the legal basis for their claim or to identify the statutory source for the alleged clear duty.
    Without that fundamental information, Claim III fails to state a claim.
    CONCLUSION
    For the foregoing reasons, defendants’ motion to transfer is denied and their motion to
    dismiss is granted. The Court will dismiss the complaint without prejudice.
    AMY BERMAN JACKSON
    United States District Judge
    DATE: April 8, 2020
    14
    

Document Info

Docket Number: Civil Action No. 2018-2630

Judges: Judge Amy Berman Jackson

Filed Date: 4/8/2020

Precedential Status: Precedential

Modified Date: 4/8/2020

Authorities (24)

Pyrocap International Corp. v. Ford Motor Co. , 259 F. Supp. 2d 92 ( 2003 )

Mawalla v. Chertoff , 468 F. Supp. 2d 177 ( 2007 )

Lawrence S. Gross and Pauline S. Gross v. Frances C. Owen , 221 F.2d 94 ( 1955 )

Charles Kowal v. MCI Communications Corporation , 16 F.3d 1271 ( 1994 )

Bederson v. United States , 756 F. Supp. 2d 38 ( 2010 )

New Hope Power Co. v. United States Army Corps of Engineers , 724 F. Supp. 2d 90 ( 2010 )

Frank A. Schuler, Jr. v. United States of America, ... , 617 F.2d 605 ( 1979 )

Sparrow, Victor H. v. United Airlines Inc , 216 F.3d 1111 ( 2000 )

Equal Employment Opportunity Commission v. St. Francis ... , 117 F.3d 621 ( 1997 )

In Re Alan Neal Scott , 709 F.2d 717 ( 1983 )

mary-alice-relf-minnie-relf-and-katie-relf-by-and-through-their-next , 511 F.2d 804 ( 1975 )

Bell Atlantic Corp. v. Twombly , 127 S. Ct. 1955 ( 2007 )

Ashcroft v. Iqbal , 129 S. Ct. 1937 ( 2009 )

Modaressi v. Vedadi , 441 F. Supp. 2d 51 ( 2006 )

Thomas, Oscar v. Principi, Anthony , 394 F.3d 970 ( 2005 )

Dolly Kyle Browning and Direct Outstanding Creations ... , 292 F.3d 235 ( 2002 )

American Nat. Ins. Co. v. FDIC , 642 F.3d 1137 ( 2011 )

Van Dusen v. Barrack , 84 S. Ct. 805 ( 1964 )

Gustave-Schmidt v. Chao , 226 F. Supp. 2d 191 ( 2002 )

Trout Unlimited v. United States Department of Agriculture , 944 F. Supp. 13 ( 1996 )

View All Authorities »