Among Other Things Part II Heightened Pleading Standard

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Among Other Things Part II Heightened Pleading Standard

  1. 1. Among Other Things Part II 1: Heightened Pleading Standard—Plausibility Rather Than Mere Possibility Does Not Demand Probability Of Approval By Joseph P. Whalen (April 14, 2012)Gene’s Machines, Inc., et al. v. DHS, et al., Civil Action No. V-11-4 (S.D. TX-Victoria Div., March 28, 2012) is currently on appeal in the Fifth Circuit Court ofAppeals. The District Court dismissed the case which involved USCIS’ denial ofan I-140 due to the petition having been filed with an expired labor certification.The petitioner’s counsel screwed up by not staying abreast of the current state ofthe law regarding labor certifications. The labor cert. in question was issued thesame date as the Federal Register Notice for the new version of 20 C.F.R. § 656.30which was amended on May 17, 2007 (with an effective date of July 16, 2007).The approved labor certification did not advise of the expiration after 180 days.Regardless of any potential argument based on a perceived error by DOL in notincluding warning language as of the very same date that the new rule waspublished, it was not immediately effective. The rule was issued 60 days inadvance of becoming effective and thereafter, any previously issued laborcertification was still valid for 180 day. In essence, this particular labor cert. wasgood for 240 days or eight (8) months instead of only 180 days or six (6) months.Given that the permanent labor certification application had originally been filed in1998, and these folks had been waiting for over nine (9) years already, it isamazing that when approval came that it took over eight (8) months to file the I-140. The District Court noted that “[I]n addition to publishing the 180-Day Rule inthe Federal Register on May 17, 2007, it published a notice of proposedrulemaking in the Federal Register on February 13, 2006—over a year before therule was published. 72 Fed Reg. 27904; 71 Fed. Reg. at 7663. After consideringpublic comments, DOL gave notice of its 180-Day Rule. 72 Fed. Reg. at 27946.USCIS also issued a public notice in June 2007, along with a publicly availablememorandum on the agency’s website, discussing how the new rule would affectthe filing of I-140 petitions.” Gene’s Machines, at p. 14. It boggles my mind thatsomeone who makes their living primarily filing permanent labor certificationapplications and visa petitions and associated forms could so grossly fail to stay ontop of something of this magnitude and which effects his financial bottom-line.The District Court in Gene’s Machines also observed that: “.... Under Fifth Circuit precedent, a case may be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) based on (1) the complaint1 A follow-up to: http://www.slideshare.net/BigJoe5/among-other-things-march-23rd-2012 Page 1 of 8
  2. 2. alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the courts resolution of disputed facts. Robinson v. TCI/US West Commc’ns Inc., 117 F.3d 900, 904 (5th Cir. 1997).” At P. 8 * * * * * “Dismissal can be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Frith v. Guardian Life Ins. Co. of Am., 9 F. Supp. 2d 734, 737—38 (S.D. Tex. 1998). While a complaint need not contain detailed factual allegations to survive a 12(b)(6) motion, the Supreme Court has held that a plaintiff’s “obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (abrogating the Conley v. Gibson, 355 U.S. 41 (1957) ‘no set of facts’ standard as “an incomplete, negative gloss on an accepted pleading standard”) (citations omitted). Plaintiff must allege “enough facts to state a claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.” Id.; Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 140 (5th Cir. 2007).” At p. 13 [Emphasis added.]Through an Opinion written by Justice David Souter, in Bell Atlantic Corp. v.Twombly, 550 U.S. 544, 555 (2007) 2, the U.S. Supreme Court effectivelyheightened the pleading requirement for Federal civil cases. The currentrequirement is for the plaintiffs to include enough facts in a complaint to make itplausible — not merely possible or conceivable — that they will be able to provefacts to support their claims.The U.S. Supreme Court through Bell Atlantic, held , in pertinent part: “(b) This case presents the antecedent question of what a plaintiff must plead in order to state a §1 claim. Federal Rule of Civil Procedure3 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Conley v. Gibson, 355 U. S. 41, 47. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid., a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief”2 http://www.supremecourt.gov/opinions/06pdf/05-1126.pdf (Slip Opinion/Syllabus)3 http://www.law.cornell.edu/rules/frcp/rule_8 Page 2 of 8
  3. 3. requires more than labels and conclusions, and a formulaic recitation of acause of action’s elements will not do. Factual allegations must be enough toraise a right to relief above the speculative level on the assumption that all ofthe complaint’s allegations are true. Applying these general standards to a §1claim, stating a claim requires a complaint with enough factual matter tosuggest an agreement. Asking for plausible grounds does not impose aprobability requirement at the pleading stage; it simply calls for enough factto raise a reasonable expectation that discovery will reveal evidence ofillegal agreement. The need at the pleading stage for allegations plausiblysuggesting (not merely consistent with) agreement reflects Rule 8(a)(2)’sthreshold requirement that the “plain statement” possess enough heft to“sho[w] that the pleader is entitled to relief.” A parallel conduct allegationgets the §1 complaint close to stating a claim, but without further factualenhancement it stops short of the line between possibility and plausibility.The requirement of allegations suggesting an agreement serves the practicalpurpose of preventing a plaintiff with “ ‘a largely groundless claim’ ” from “‘tak[ing] up the time of a number of other people, with the right to do sorepresenting an in terrorem increment of the settlement value.’ ” DuraPharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 347. It is one thing to becautious before dismissing an antitrust complaint in advance of discovery,but quite another to forget that proceeding to antitrust discovery can beexpensive. That potential expense is obvious here, where plaintiffs representa putative class of at least 90 percent of subscribers to local telephone orhigh-speed Internet service in an action against America’s largesttelecommunications firms for unspecified instances of antitrust violationsthat allegedly occurred over a 7-year period. It is no answer to say that aclaim just shy of plausible entitlement can be weeded out early in thediscovery process, given the common lament that the success of judicialsupervision in checking discovery abuse has been modest. Plaintiffs’ mainargument against the plausibility standard at the pleading stage is itsostensible conflict with a literal reading of Conley’s statement construingRule 8: “a complaint should not be dismissed for failure to state a claimunless it appears beyond doubt that the plaintiff can prove no set of facts insupport of his claim which would entitle him to relief.” 355 U. S., at 45–46.The “no set of facts” language has been questioned, criticized, and explainedaway long enough by courts and commentators, and is best forgotten as anincomplete, negative gloss on an accepted pleading standard: once a claimhas been stated adequately, it may be supported by showing any set of factsconsistent with the allegations in the complaint. Conley described thebreadth of opportunity to prove what an adequate complaint claims, not the Page 3 of 8
  4. 4. minimum standard of adequate pleading to govern a complaint’s survival. Pp. 7–17.”In Bell Atlantic, Justice Stevens dissented noting: “Thus, this is a case in which there is no dispute about the substantive law. If the defendants acted independently, their conduct was perfectly lawful. If, however, that conduct is the product of a horizontal agreement among potential competitors, it was unlawful. Plaintiffs have alleged such an agreement and, because the complaint was dismissed in advance of answer, the allegation has not even been denied. Why, then, does the case not proceed? Does a judicial opinion that the charge is not “plausible” provide a legally acceptable reason for dismissing the complaint? I think not.”How can the above be parsed, plagiarized, usurped, and unabashedly bastardized,so as to have applicability to the filing for a benefit or relief under the Immigrationand Nationality Act (INA)? I am sure that 1,000 lawyers would do it 1,000different ways. I am not a lawyer but here is my take anyhow.First, take a step back and compare a case decided on “pleadings, answers, andreplies” either before, during, or after “discovery” in a U.S. Court to theadministrative adjudication process of filing an application or petition, with initialevidence, and the agency’s options at that point. The proceedings of certaincomponents (especially appeals) of various other administrative agencies such as,DOL, SSA, or OCAHO 4 tend to operate under a system of charges-pleadings-answer and reply briefs. See generally 28 CFR Part 68, and especially, § 68.7and§ 68.9 through § 68.52.4 The Executive Office for Immigration Review’s (EOIR’s) Office of the Chief AdministrativeHearing Officer (OCAHO) is headed by a Chief Administrative Hearing Officer who overseesAdministrative Law Judges, who in turn hear cases and adjudicate issues arising under theprovisions of the INA relating to (1) knowingly hiring, recruiting, or referring for a fee or thecontinued employment of unauthorized aliens, and failure to comply with employmentverification requirements in violation of section 274A of the INA (employer sanctions); (2)immigration-related unfair employment practices in violation of section 274B of the INA; (3)immigration-related document fraud in violation of 274C of the INA; and (4) failure to complywith the information dissemination provisions for international match making organizations inviolation of 8 U.S.C. 1375a. Complaints are brought by the Department of Homeland Security,the Office of Special Counsel for Immigration-Related Unfair Employment Practices in theDepartment of Justice, or private individuals as prescribed by statute.http://www.justice.gov/eoir/ocahoinfo.htm Page 4 of 8
  5. 5. While this essay is really looking at the filing of applications and petitions for INAbenefits with USCIS and applications for relief from removal before anImmigration Judge, many of the practices and procedures applicable beforeOCAHO’s ALJs could be quite helpful in reforming the former’s adjudications.For purposes of this discussion based on the real premise, it is necessary toreconcile some terminology between the two familiar and ordinary administrativeadjudication contexts 5, versus the judicial or quasi-judicial context, which isconceptually very similar in function, specifically: (1) The “complaint” and “pleading” are often replaced with the official agency form plus its initial evidence. (2) The “answer” most often takes the form of an RFE (Request For Evidence), a NOID (Notice Of Intent to Deny), or much more rarely, a Denial Notice (alternately, an IJ’s decision(s)—including continuances and interlocutory orders). (3) The “reply” is the additional evidence submitted in response to the RFE, in rebuttal to the NOID, arguments in supplemental briefs, or an Appeal or Motion in response to a Denial.The next part of this discussion is based on the following basic premise. IF initial evidence fails to meet the minimum prima facie showing, THEN the USCIS adjudicator must make one of three choices. (S)he may prepare and issue an RFE, a NOID, or a Denial Notice. An EOIR IJ may grant a continuance; or issue an interlocutory order; or issue a substantive and meaningful “operative” decision that does any of the following: grant or deny some form of relief (adjustment, withholding, or deferral); grant voluntary departure with an alternate order of removal; order of removal; or terminate proceedings; or administratively close the case (the last two either with or without prejudice)6.So in the administrative adjudication context, the pertinent portion of the holdingfrom Bell Atlantic, could be tweaked along these lines: Every Benefit Request (or a Request for Relief) presents the antecedentquestion: What must an applicant or petitioner submit upon filing such request in5 Filing benefits request forms with USCIS or requesting relief in Removal Proceedings.6 Did I miss anything? Remember that an IJ cannot grant naturalization or officially recognizeclaimed citizenship. Instead, the IJ may be close, suspend, or terminate based on a failure toprove alienage, or to allow the citizenship claim to be resolved. Page 5 of 8
  6. 6. order to deserve an opportunity to submit additional evidence and therebysupplement the record; or obtain a continuance or an interim benefit? “Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief7,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Conley v. Gibson, 355 U. S. 41, 47.” “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid., 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 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.” Bell Atlantic Applying the above general standards to a benefit request or request forrelief, the making of such a request requires an applicant or petitioner to submitsufficient initial required evidence to at the very least make a prima facie showingof eligibility. Prescribing required initial evidence or a filing prerequisite (akin to stating“plausible grounds” in a civil court action) does not impose a probabilityrequirement at the filing stage; it simply calls for enough fact to raise a reasonableexpectation or plausibility that additional case development (RFEs and responsesakin to discovery or to the filing of interrogatories and answers or depositionsetc...) will result in the presentation of sufficient evidence demonstrating fulleligibility. In other words, requiring an upfront showing of plausibility rather thana mere (and often remote) possibility is reasonable because it does not demand animmediate and upfront demonstration of the probability of success but rather onlya reasonable expectation of a chance for success upon further case development. The need at the time of filing for the application or petition to plausiblysuggest prima facie eligibility through production of the most basic of requiredinitial evidence reflects Rule 8(a)(2)’s threshold requirement that the “plainstatement” possess enough heft to “sho[w] that the pleader is entitled to relief.”7 In this instance, I don’t believe that the Court was talking about an absolute “entitlement, perse” but rather at least a demonstration of prima facie eligibility with more than a wisp of achance of success or outright speculation. Page 6 of 8
  7. 7. The mere act of paying the fee on a skeletal filing consisting of nothingmore than a signed form gets a benefit request close to meeting filing eligibility,but without further factual enhancement it stops short of the line betweenpossibility and plausibility. In other words, a skeletal filing that lacks the mostbasic initial evidence simply falls short of a prima facie showing. The prima facieshowing is more essential when the mere fact of a “properly filed” and “validlypending” form bestows interim benefits during such valid pendency. This is mosteasily seen in the classic situation of obtaining an employment authorizationdocument (EAD) while an I-485, Application to Register Permanent Residence orAdjust Status is accepted and remains pending for a final adjudication decision.Compare the sentiment expressed in the immediate preceding paragraph to thefollowing from Bell Atlantic. “The requirement of allegations suggesting an agreement serves the practical purpose of preventing a plaintiff with “ ‘a largely groundless claim’ ” from “ ‘tak[ing] up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.’ ” Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 347. It is one thing to be cautious before dismissing an antitrust complaint in advance of discovery, but quite another to forget that proceeding to antitrust discovery can be expensive. That potential expense is obvious here, where plaintiffs represent a putative class of at least 90 percent of subscribers to local telephone or high-speed Internet service in an action against America’s largest telecommunications firms for unspecified instances of antitrust violations that allegedly occurred over a 7-year period. It is no answer to say that a claim just shy of plausible entitlement can be weeded out early in the discovery process, given the common lament that the success of judicial supervision in checking discovery abuse has been modest. Plaintiffs’ main argument against the plausibility standard at the pleading stage is its ostensible conflict with a literal reading of Conley’s statement construing Rule 8: “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 355 U. S., at 45–46. The “no set of facts” language has been questioned, criticized, and explained away long enough by courts and commentators, and is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Conley described the breadth of opportunity to prove what an adequate complaint claims, not the Page 7 of 8
  8. 8. minimum standard of adequate pleading to govern a complaint’s survival. Pp. 7–17.”There is some useful language that I can construe in opposite to the Court’s use ofthat same reference. Above in this discussion, the following was used to explainwhat not to do. I see it as also instructive to many INA requests if taken as abaseline only. To refresh your memory: “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid., 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 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.” Bell AtlanticIn case preparation for the filing of any benefit request or request for relief underthe INA, arguments and evidence are usually best presented through assembling apackage for submission that begins as “labels and conclusions, and a formulaicrecitation of ..... elements” (i.e. statutory and regulatory criteria). After such aformulaic package is assembled, it needs to be fleshed out by adding greaterspecifics and narrative in order to tie the whole thing together in a logicalprogression. One must cite to specific evidence in the record and label it, tag it, orinterfile it within that package. This will help to guide the adjudicator in assessingthe submission logically and expeditiously. Far too often, applications andpetitions, especially complex visa category petitions, are submitted in an unfocusedand haphazard fashion. The “kitchen sink” approach signals to an adjudicator thatthe applicant or beneficiary is probably not eligible or qualified and through thesubmission is attempting to “overwhelm the adjudicator with too muchinformation” or “baffle them with bullshit”. However, many times the submissionreally merely reflects a lack of focus in case preparation and presentation. Theseasoned adjudicator will know what to look for and may eventually find what isrequired in order to make a favorable decision or find the evidence lacking someessential component. The petitioner, applicant, or practitioner cannot, and shouldnot, count on the adjudicator going on a treasure hunt for the essential evidence inan overabundance of extraneous materials. Stressing the importance of taking afocused and logical approach to case preparation and presentation may seem tooobvious to bother stating but I know from experience that such an approach is notthe norm for far too many petitioners, applicants, and (unfortunately) practitioners.That’s my two-cents on this (for now). Page 8 of 8

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