The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Mark R. Abel
This matter is before the Court for consideration of the following filings:
(1) Plaintiff's Motion for Summary Judgment (ECF No. 4);
(2) Defendant's Motion to Dismiss, Cross-Motion for Summary Judgment, and Opposition to Plaintiff's Motion for Summary Judgment (ECF No. 12);
(3) Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss and Defendant's Cross-Motion for Summary Judgment/Plaintiff's Reply Memorandum in Support of its Motion for Summary Judgment (ECF No. 18); and
(4) Defendant's Reply Memorandum in Support of Defendant's Motion to Dismiss and Cross-Motion for Summary Judgment (ECF No. 19).
For the reasons that follow, this Court GRANTS Plaintiff's Motion for Summary Judgment (ECF No. 4) and DENIES Defendant's Motion to Dismiss and Cross-Motion for Summary Judgment (ECF No. 12).
Plaintiff, Residential Finance Corporation, is in the residential mortgage financing business. On August 9, 2011, the company filed a Form I-129 petition seeking an H-1B Visa for Geza Rakoczi, a twenty-five-year-old who has lived in the United States since the age of four. Plaintiff wants to employ Rakoczi as a market research analyst, and a successful petition would result in Rakoczi obtaining H-1B status under Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act. In other words, Rakoczi would be "an alien . . . who is coming temporarily to the United States to perform services . . . in a specialty occupation." 8 U.S.C. § 1101(a)(15)(H)(i)(b).
After an unexplained initial delay in processing, Defendant, the United States Citizenship and Immigration Services, requested additional evidence in regard to the petition. Plaintiff responded to the request, and Defendant subsequently denied the petition on November 11, 2011. Plaintiff now seeks judicial review of the denial pursuant to 5 U.S.C. § 702 and has filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 4.) Defendant has filed a combined motion pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 56. (ECF No. 12.) The parties have fully briefed the motions, which are now ripe for disposition.
A. Jurisdiction & Little Tucker Act
Rule 12(b)(1) provides that an action may be dismissed for lack of subject matter jurisdiction. Under the Federal Rules of Civil Procedure, "[p]laintiffs have the burden of proving jurisdiction in order to survive a Rule 12(b)(1) motion . . . ." Weaver v. Univ. of Cincinnati, 758 F. Supp. 446, 448 (S.D. Ohio 1991) (citing Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)). See also Rapier v. Union City Non-Ferrous, Inc., 197 F. Supp. 2d 1008, 1012 (S.D. Ohio 2002) (citing McNutt v. General Motors Acceptance Corp. of Indiana, Inc., 298 U.S. 178, 189 (1936); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)) ("The plaintiff bears the burden of establishing, by a preponderance of the evidence, the existence of federal subject matter jurisdiction").
Motions under Rule 12(b)(1) generally come in two varieties, either facial or factual attacks on the complaint. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 2004). A facial attack on the subject matter jurisdiction alleged by a complaint merely questions the sufficiency of the pleading. Id. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, a similar safeguard employed under Rule 12(b)(6) motions to dismiss. Id. On the other hand, when a court reviews a complaint under a factual attack, no presumptive truthfulness applies to the factual allegations. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). See also Nat'l Ass'n of Minority Contractors v. Martinez, 248 F. Supp. 2d 679, 681 (S.D. Ohio 2002). As a result, this Court may weigh the evidence and resolve any factual disputes when adjudicating such a jurisdictional challenge. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 2004) (citing Moir, 895 F.2d at 269).
Invoking Rule 12(b)(1), Defendant argues that the Court lacks subject matter jurisdiction on the premise that Plaintiff lacks standing to challenge the denial of the H-1B petition on Rakoczi's behalf. This proposition is contrary to law. Pai v. U.S. Citizenship & Immigration Servs., 810 F. Supp. 2d 102, 111-12 (D.D.C. 2011) ("stating that numerous courts . . . agree (albeit for a variety of reasons) that the petitioner-and not the beneficiary-of a visa application is the proper party with standing to challenge the agency's action"); Morris v. Gonzales, No. 06-4383, 2007 WL 2740438, at *6 (E.D.Pa. Sept. 19, 2007) (explaining that the petitioner is the only party with standing to seek review of the revocation of a visa); Blacher v. Ridge, 436 F. Supp. 2d 602, 606 n.3 (S.D.N.Y. 2006) (holding that "the petitioner . . . is the only party with standing to seek review of the petition's denial"). Cf. 8 C.F.R. § 103.3(a)(1)(iii)(B) (providing that in an administrative appeal, the affected party "does not include the beneficiary of a visa petition").
Plaintiff has incurred a sufficient injury in fact inflicted by the denial of the petition. The denial of the H-1B petition deprived Plaintiff of the ability to employ and reap the presumed benefits of employing Rakoczi. See Wong v. Napolitano, 654 F. Supp. 2d 1184, 1189 (D. Oregon 2009) ( collecting cases supporting the proposition that "[b]ecause the denial of [a] visa application would deprive the employer of [a] prospective employee, each employer ha[s] a concrete and particularized injury, namely the inability to hire a specific employee it would have hired absent the agency's action."). Contrary to Defendant's argument, there is simply no requirement that Plaintiff has to show that it cannot find another employee to fill the market research analyst position before it can be regarded as having sustained an injury that confers standing.
Defendant also argues that the Court should dismiss the complaint on the ground that Plaintiff fails to state a claim under the Little Tucker Act, 28 U.S.C. § 1346(a)(2). That statute provides:
The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41. . . . 28 U.S.C. § 1346(a)(2). After citing the statute, Defendant states that because Plaintiff neither seeks money damages nor asserts a source of substantive law mandating monetary compensation, Plaintiff has failed to state a claim upon which this Court can grant relief. (ECF No. 12, at 12.)
This odd portion of the briefing invokes Rule 12(b)(6). In assessing whether Plaintiff has set forth a claim upon which this Court can grant relief, the Court must construe the complaint in favor of Plaintiff, accept the factual allegations contained in that pleading as true, and determine whether the factual allegations presents plausible claims. See Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). The Supreme Court has explained, however, that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Consequently, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.
To be considered plausible, a claim must be more than merely conceivable. Bell Atlantic Corp., 550 U.S. at 556; Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio,502 F.3d 545, 548 (6th Cir. 2007). What this means is that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. The factual allegations of a pleading "must be enough to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555. See also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008).
Defendant has failed to direct this Court to any case in which any court has ever applied 28 U.S.C. § 1346(a)(2) as requested in the context of visa denial case. Plaintiff in turn argues that "[b]ecause the Court clearly does have jurisdiction over this action pursuant to 28 U.S.C. § 1331, the fact that it may not also have jurisdiction over this action under 28 U.S.C. § 1346(a)(2) is of no consequence." (ECF No. 18, at 1-2.) Agreeing with Plaintiff ...