UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
RCM TECHNOLOGIES, INC, et al.,
Plaintiffs, v. Civil Action No. 09-0650 (JDB) U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.
MEMORANDUM OPINION
Before the Court is the motion for preliminary injunction filed by RCM Technologies,
Inc., Cambridge Systems, Inc., and Global Recruitment Connections, LLC (collectively,
"plaintiffs"). They seek to enjoin the U.S. Citizenship and Immigration Services ("CIS" or
"defendants"), an agency within the Department of Homeland Security, from applying a new
"policy" that allegedly requires foreign occupational and physical therapists to have master's
degrees in order to obtain H-1B visas. Because plaintiffs challenge the CIS "policy," rather than
challenging a denial of a specific visa application, they are not likely to succeed on the merits of
their claims. Likewise, plaintiffs cannot succeed on the merits because the challenged "policy,"
even as described in plaintiffs' declarations, is not "binding," and hence does not constitute "final
agency action" reviewable under the Administrative Procedure Act. For the reasons explained
below, then, plaintiffs' motion will be denied.
BACKGROUND
Plaintiffs are in the business of recruiting and training foreign physical and occupational
therapists, sponsoring them for H-1B visas, and then placing them with U.S. clients. See Compl. ¶ 18. H-1B visas are available for qualified foreign nationals working in "specialty occupations."
Id. ¶ 17; see also 8 U.S.C. § 1184(i). A cap applies to H-1B visas -- only 65,000 are permitted in
any fiscal year, which begins on October 1. Visa applications may be submitted six months
before the fiscal year begins. On April 1, 2009, plaintiffs filed over 100 visa applications for
foreign therapists for fiscal year 2010, which begins October 1, 2009. See id. ¶¶ 41, 43, 45.
In January 2009, RCM and Global Recruiting began to receive denials of previously-filed
H-1B visa petitions because the therapists on whose behalf the petitions had been filed lacked
master's degrees. See id. ¶¶ 36-37. According to plaintiffs, these denials are a result of a new
CIS policy that is inconsistent with applicable statutes and regulations and that was never
properly promulgated. Plaintiffs have submitted a declaration from Donald Freiberg, an
immigration attorney in California, who reports that at a public meeting on February 25, 2009,
representatives from CIS's California office "represented that they received clearance from
headquarters to require master's degree[s] for occupational and physical therapy positions for
which new H-1B classification was sought." See Pls. Rep. Ex. A at ¶ 5.
Plaintiffs filed suit in this Court on April 8, 2009 and filed a motion for a preliminary
injunction the same day. They seek to enjoin CIS's further use of this alleged policy of requiring
master's degrees in adjudicating H-1B visas for physical and occupational therapists. The motion
is fully briefed and the Court held a motions hearing on May 4, 2009.
STANDARD
A preliminary injunction is an extraordinary and drastic remedy, one that should be
granted only when the moving party, by a clear showing, carries the burden of persuasion. See
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); see also Munaf v. Geren, 128 S.Ct. 2207,
-2- 2219 (2008). With that in mind, the standard for a preliminary injunction is well established. To
prevail, the moving party must demonstrate (1) a substantial likelihood of success on the merits,
(2) that it would suffer irreparable harm without injunctive relief, (3) that an injunction would not
substantially harm other interested parties, and (4) that issuance of the injunction is in the public
interest. Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004); Serono Labs., Inc. v. Shalala,
158 F.3d 1313, 1317-18 (D.C. Cir. 1998).
A substantial likelihood of success on the merits is vital. See Serono Labs., 158 F.3d at
1326; Hi-Tech Pharm. Co., Inc. v. FDA, 587 F. Supp. 2d 1, 7 (D.D.C. 2008). "Without any
probability of prevailing on the merits, the Plaintiffs' purported injuries, no matter how
compelling, do not justify preliminary injunctive relief." Am. Bankers Ass'n v. Nat'l Credit
Union Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999). Despite the importance of demonstrating
a substantial likelihood of success on the merits, the four factors "are not considered in isolation
from one another, and no one factor is necessarily dispositive as to whether preliminary
injunctive relief is warranted. Rather, the factors 'interrelate on a sliding scale and must be
balanced against each other.'" Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72
(D.D.C. 2001) (citations omitted). "If the plaintiff makes a particularly weak showing on one
factor, however, the other factors may not be enough to 'compensate.'" Id. at 73; see also Hunter
v. FERC, 527 F. Supp. 2d 9, 14 (D.D.C. 2007); Dodd v. Fleming, 223 F. Supp. 2d 15, 20 (D.D.C.
2002).
ANALYSIS
I. Substantial Likelihood of Success on the Merits
The Court will focus its analysis on the first prong of the test for a preliminary injunction:
-3- plaintiffs' likelihood of success on the merits. Defendants raise two threshold reasons why
plaintiffs cannot ultimately succeed with their suit. First, defendants argue that plaintiffs'
challenge to an alleged "policy" is not justiciable; plaintiffs must instead challenge individual
denials of specific visa applications. Second, defendants contend that the "policy" at issue here
does not constitute "final agency action" and hence is unreviewable under the Administrative
Procedure Act. 5 U.S.C. § 704. Each of defendants' arguments has merit, and the Court
addresses them in turn.
A. Challenge to Discrete Agency Actions
The first doctrine defendants invoke stems from a secondary holding in the Supreme
Court's decision in Lujan v. National Wildlife Federation, 497 U.S. 871, 890 (1990). In Lujan,
the Supreme Court rejected a challenge to the Bureau of Land Management's "land withdrawal
review program," reasoning that "wholesale improvement" cannot be made by "court decree." Id.
at 891. The Court held that under the APA, a plaintiff "must direct its attack against some
particular 'agency action' that causes it harm." Id. Lujan did, as plaintiffs point out, involve a
much broader challenge than the challenge plaintiffs mount here. See id. at 890 (likening
plaintiffs' challenge in Lujan to the "'weapons procurement program' of the Department of
Defense"). But since Lujan, several lower courts have held that even challenges to narrower
"policies" are unreviewable under Lujan and the APA.
Defendants cite, for example, to Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000).
There, the Fifth Circuit rejected a challenge to the U.S. Forest Service's policy regarding "even-
aged timber management." The court framed the plaintiffs' suit as a challenge to "past, ongoing,
and future timber sales approved by the Forest Service." Id. at 566. Although the challenged
-4- policy was narrower than the challenged program in Lujan, the court held that Lujan applied.
Hence, the plaintiffs were required to challenge discrete sales made pursuant to the allegedly
unlawful policy. Id. And merely identifying specific sales made pursuant to that policy was not
enough to make the case justiciable. Id. at 567.
Defendants also cite to Arden Wood, Inc. v. USCIS, 480 F. Supp. 2d 141 (D.D.C. 2007).
In Arden Wood, the plaintiffs filed suit against CIS after R-1 visa applications they had filed for
foreign religious workers were denied pursuant to an allegedly unlawful interpretation of the
statute governing religious worker visas. Although the plaintiffs originally challenged the denial
of a specific application, that application was granted by CIS after suit had been filed.
Nonetheless, plaintiffs pressed their case, seeking declaratory and injunctive relief regarding
CIS's "ongoing 'policy'" regarding religious worker visas. See id. at 146. The court dismissed
the case on standing grounds. Id. at 147-48. At the same time, the court also invoked Lujan,
holding on alternative grounds that the plaintiffs' challenge to CIS's "policy" was not justiciable.
Id. at 149-50.
Whether cases like Peterson and Arden Wood have properly interpreted Lujan has not yet
been squarely addressed by the D.C. Circuit. But dicta from D.C. Circuit opinions suggests that
the court will look favorably on the approach taken by those cases. For example, in Cobell v.
Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001), the court questioned a district court's authority to
entertain a challenge to a government policy. The court noted that "[a]lthough the government
does not press the issue," the district court's holding that a "policy" constitutes final agency action
"is questionable. While a single step or measure is reviewable, an on-going program or policy is
not, in itself, a 'final agency action' under the APA." Id. (citing Lujan, 497 U.S. at 890).
-5- Plaintiffs respond in two ways. First, they point to cases in which courts entertained
challenges to policies under the APA. For example, plaintiffs cite to Venetian Casino Resort,
LLC v. EEOC, 409 F.3d 359 (D.C. Cir. 2005).1 In Venetian Casino, an employer challenged an
EEOC policy that allowed the release of the employer's confidential business information --
without notice to the employer -- to private parties seeking EEOC review. Unlike here -- and
unlike cases such as Peterson and Arden Wood -- actions taken pursuant to that EEOC policy
were not adjudicative decisions from which the aggrieved party could appeal. Moreover, because
the challenged policy permitted disclosure of confidential information without notice to the
employer, the aggrieved party would never know when confidential information had been
disclosed. See id. at 365. Here, in contrast, plaintiffs receive notice of adjudicatory decisions
made pursuant to CIS's alleged policy when visa applications are denied. Venetian Casino is
thus of no help to plaintiffs.
Plaintiffs also argued at the motions hearing that challenging a specific denial of a visa
application is impractical in the H-1B context. Denials of visa applications may be appealed to
the Administrative Appeals Office, 8 C.F.R. § 103.4(a), and the AAO currently has a backlog of
appeals that would delay a decision for a year or more. H-1B visas are applied for each year and
are subject to a 65,000 annual cap. If a plaintiff were required to allow an administrative appeal
to run its course before challenging a denial in federal court, then such applications might well be
futile. But this concern is abated because, as defendants pointed out at the motions hearing,
appeals to the AAO are discretionary. See 8 C.F.R. § 103.4(a)(1) (providing that cases "may" be
1 In their reply brief, plaintiffs discuss Venetian Casino at a later stage of proceedings -- once the case returned to the court of appeals after a post-remand decision by the district court. See Venetian Casino Resort, LLC v. EEOC, 530 F.3d 925 (D.C. Cir. 2008).
-6- certified to the AAO). "[A]n appeal to 'superior agency authority' is a prerequisite to judicial
review only when expressly required by statute or when an agency rule requires appeal before
review and the administrative action is made inoperative pending that review." Darby v.
Cisneros, 509 U.S. 137, 153 (1993). Hence, plaintiffs need not pursue an AAO appeal before
seeking judicial review of denied visa applications in federal court.
Lujan recognized that the "case-by-case approach" it required is "understandably
frustrating" when "across-the-board protection" is sought by a plaintiff. 497 U.S. at 894. "But
this is the traditional, and remains the normal, mode of operation of the courts." Id. Even if the
facts of Lujan are distinguishable from the instant case, the approach Lujan requires demonstrates
that plaintiffs 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. Hence, plaintiffs' challenge is not justiciable.
B. Challenge to Final Agency Actions
Defendants also argue that the policy plaintiffs challenge does not constitute "final agency
action" and is therefore not reviewable under § 704 of the APA. As a threshold matter, the
parties dispute whether a policy exists. Both parties have submitted affidavits or declarations to
support their position that it does or does not exist. But at this early stage of the proceedings, the
Court will assume that the policy is as plaintiffs' declarants allege it to be. Plaintiffs provide a
declaration from Donald Freiberg, a California immigration attorney, who reports that at a public
meeting on February 25, 2009, representatives from CIS's California office "represented that they
received clearance from headquarters to require master's degree[s] for occupational and physical
therapy positions for which new H-1B classification was sought." See Pls. Rep. Ex. A at ¶ 5.
-7- The question, then, is whether this informal policy may be challenged under the APA.
In Center for Auto Safety v. NHTSA, 452 F.3d 798, 806 (D.C. Cir. 2006), the court held
that a challenged action must "either (1) reflect 'final agency action,' 5 U.S.C. § 704, or (2)
'constitute a de facto rule or binding norm that could not properly be promulgated absent the
notice-and-comment rulemaking required by § 553 of the APA." The test for "final agency
action" comes from Bennett v. Spear, 520 U.S. 154, 177-78 (1997), and is as follows: "First, the
action must mark the 'consummation' of the agency's decisionmaking process -- it must not be of
a merely tentative or interlocutory nature. And second, the action must be one by which 'rights or
obligations have been determined,' or from which 'legal consequences will flow.'"
Both aspects of the second prong of the Bennett test are at issue here -- whether the CIS
policy, as alleged, is one "by which 'rights or obligations have been determined,' or from which
'legal consequences will flow.'" Rights or obligations are "determined" by a policy when it is a
"binding rule." See Ctr. for Auto Safety, 452 F.3d at 808. If a policy is "permissive" or if
officials are "free to exercise their discretion" pursuant to the policy -- even if officials are
"encouraged" to act a certain way -- then "rights or obligations" have not been determined. See
id. at 809; see also CropLife America v. EPA, 329 F.3d 876, 883 (D.C. Cir. 2003). Similarly,
"legal consequences will flow" from an agency action when the policy effects a "certain change
in . . . legal obligations." See Nat'l Ass'n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir.
2005). Practical consequences of a non-binding agency policy or de facto compliance with such
a policy do not constitute legal consequences. See Ctr. for Auto Safety, 452 F.3d at 811.
Here, CIS's alleged policy is not "binding" and hence does not constitute "final agency
action" even under plaintiffs' description of the policy. Mr. Freiberg declares that CIS
-8- adjudicators now have "clearance . . . to require master's degree[s]" of therapists seeking H-1B
visas. Freiberg Decl. ¶ 5. That stated policy -- if one actually exists -- appears to give
adjudicators permission to require master's degrees. It does not appear to require adjudicators to
require master's degrees in all cases. CIS's policy, then, is not binding and therefore does not
constitute "final agency action" under either aspect of Bennett's second prong.2 Rights and
obligations have not been "determined." And "legal consequences" do not flow from this policy,
even if practical consequences do. In this context, the "final agency action" requirement of § 704
of the APA achieves the same policy objective as the Lujan line of cases discussed above.
Courts stand ready to entertain appeals from specific, concrete agency adjudications. But absent
that, courts have neither the resources nor the expertise to superintend agency policy-making.
In sum, the challenge plaintiffs bring here is not justiciable. It is a challenge to CIS's
"policy," see Compl. at 1, which is non-justiciable under Lujan and its progeny. And the Court
lacks authority to review CIS's actions because plaintiffs' challenge is not to "final agency action"
as required under Bennett and Center for Auto Safety. Accordingly, and once again, plaintiffs
have no likelihood of success on the merits.
II. Irreparable Harm, Substantial Harm to Other Interested Parties, and the Public Interest
A "conclusion that [plaintiffs are] not likely to succeed on the merits effectively decides
the preliminary injunction issue." See Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1326 (D.C.
2 As previously noted, the Court has assumed the existence of the policy plaintiffs allege. CIS has, however, stated that there is no such policy, that CIS continues to adjudicate H-1B petitions on a case-by-case basis without requiring a master's degree for all physical and occupational therapists, and that CIS is currently in the process of formulating a policy relating to adjudication of such petitions. See Defs.' Suppl. Filing, Decl. of Barbara Velarde. Those facts further undercut any contention that there is final agency action here.
-9- Cir. 1998). Nonetheless, the Court will briefly address the remaining three factors here.
As for irreparable harm, plaintiffs fear a harm that is largely economic, and economic loss
is not irreparable. See Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). But, to
be sure, when loss "threatens the very existence" of a plaintiffs' business, economic loss may be
irreparable. See id. Here, plaintiffs allege that they filed more than 100 H-1B visa applications
on behalf of therapists. See Compl. ¶¶ 41, 43, 45. Plaintiffs also aver that the very viability of
their business is threatened by CIS's challenged policy. But in this, plaintiffs claims are carefully
cabined. For example, Michael Saks, a RCM Technologies executive, declares that "[n]early
70% of the health care division's business comes from its placement of physical and occupational
therapists." See Pls. Mem. Ex. A at ¶ 7. Mr. Saks does not claim that 70 percent of RCM's
overall business comes from the placement of therapists; nor does he claim that 70 percent of
RCM's health care division's business comes from the placement of foreign therapists. Although
the Court appreciates that the economic harm realized by plaintiffs like RCM on account of CIS's
alleged policy could be substantial, the Court is not persuaded that the economic harm will be so
great as to threaten RCM's "very existence."3
The next factor, potential harm to defendant should the injunction be granted, is often a
wash. "[O]ne party or the other will be injured whichever course is taken." Delaware & H. Ry.
Co. v. United Transp. Union, 450 F.2d 603, 630 (D.C. Cir. 1971). Here, however, because the
Court has determined that plaintiffs have no likelihood of ultimately succeeding on the merits,
interim harm to defendants is unwarranted. This factor, then, counsels somewhat against
3 Defendants also point out that plaintiffs' harm is not certain. The annual cap of 65,000 H-1B visas has not yet been met. Nor is the H-1B visa program plaintiffs' only option. H-2B visas, although less desirable than H-1B visas, may be available to foreign therapists.
-10- granting a preliminary injunction.
Finally, the Court must consider the public interest. Both parties can claim that the public
interest is better served if the Court rules in their favor on the preliminary injunction. Plaintiffs
argue that there is a recognized shortage of physical and occupational therapists in the United
States, so the public interest is harmed by excluding foreign therapists who are otherwise
qualified. Defendants argue that an influx of less-educated foreign therapists will drive down
standards and salaries for domestically-trained therapists. This factor, then, does not tip the
balance in either direction.
CONCLUSION
The first factor under the four-part preliminary injunction test -- substantial likelihood of
success on the merits -- squarely favors defendants. This effectively ends the inquiry. None of
the other three factors so favors plaintiffs as to warrant granting the extraordinary remedy of a
preliminary injunction despite the low likelihood of success on the merits. Accordingly,
plaintiffs' motion for a preliminary injunction will be denied. A separate order accompanies this
opinion.
/s/ JOHN D. BATES UNITED STATES DISTRICT COURT
Date: May 11, 2009
-11-