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PayJoy, Inc. v. Cuccinelli

United States District Court, N.D. California

July 16, 2019

PAYJOY, INC., Plaintiff,
v.
KENNETH T. CUCCINELLI, Defendant.

          ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER RE: DKT. NO. 2

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         Pending before the Court is a motion for a temporary restraining order and motion to show cause filed by Plaintiff PayJoy, Inc. (“PayJoy”) on July 11, 2019. Dkt. No. 2 (“Mot.”). In short, PayJoy alleges that the United States Citizenship and Immigration Services (“USCIS”) wrongly denied PayJoy's H-1B petition, which sought to classify the beneficiary Qihan Xie as a temporary worker in a specialty occupation under 8 U.S.C. § 1101(a)(15)(H)(i)(b). PayJoy contends that the agency's decision that the position did not meet the statutory requirement that entry into the occupation normally requires a bachelor's degree or higher was an arbitrary and capricious final agency action. See Dkt. No. 1 ¶¶ 28-39. Plaintiff currently seeks “an order temporarily enjoining [USCIS] from withholding the benefits associated with an approved H-1B.” Mot. at 7. On July 15, 2019, Defendant Kenneth T. Cuccinelli, in his official capacity as Acting Director of USCIS, opposed Plaintiff's motion. Dkt. No. 9 (“Opp.”). For the following reasons, the Court DENIES the motion.[1]

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Prior to any association with PayJoy, Ms. Xie worked as a “financial specialist” for a raisin packing company pursuant to an approved H-1B visa. Mot. at 10. On May 6, 2019, PayJoy filed a Petition for a Nonimmigrant Worker (Form I-129), which sought to transfer Ms. Xie's H-1B visa to PayJoy, for a “financial analyst” position. Id.; see also Dkt. No. 2-2 (“AR”) at 16-23. On May 16, 2019, USCIS issued a Request for Evidence (“RFE”), seeking additional information from which the agency might conclude that the proffered position constitutes a “specialty occupation.” AR at 109-18. Plaintiff responded to the RFE on June 5, 2019, id. at 119-44, but the agency nonetheless concluded on June 18, 2019 that the position did not qualify as a “specialty occupation” under the statute, id. at 4-11. Among other reasons, USCIS determined that PayJoy did not show that the financial analyst position required a bachelor's degree or higher in a specific specialty. Id.

         II. LEGAL STANDARD

         The standard for issuing a temporary restraining order and issuing a preliminary injunction are substantially identical. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). Either is an “extraordinary remedy” that the court should award only upon a clear showing that the party is entitled to such relief. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs seeking preliminary relief must establish: (1) that they are likely to succeed on the merits; (2) that they are likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in their favor; and (4) that an injunction is in the public interest. Id. Preliminary relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22. A court must find that “a certain threshold showing” is made on each of the four required elements. Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011). Under the Ninth Circuit's sliding scale approach, a preliminary injunction may issue if there are “serious questions going to the merits” if “a hardship balance [also] tips sharply towards the [movant], ” and “so long as the [movant] also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

         Where a plaintiff seeks mandatory injunctive relief instead of prohibitory injunctive relief to maintain the status quo, a plaintiff's burden is “doubly demanding.”[2] Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). Such a plaintiff “must establish that the law and facts clearly favor her position, not simply that she is likely to succeed.” Id. And the Ninth Circuit often cautions that a mandatory injunction “goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored.” Id. (quoting Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (internal citations omitted)). District courts thus should deny such requests “unless the facts and law clearly favor the moving party.” Stanley, 13 F.3d at 1320 (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979)). Put differently, mandatory injunctive relief should never issue in “doubtful cases.” Garcia, 786 F.3d at 740 (quoting Park Vill. Apartment Tenants Ass'n v. Mortimer Howard Tr., 636 F.3d 1150, 1160 (9th Cir. 2011)).

         III. DISCUSSION

         The Court finds that Plaintiff has failed to meet the extraordinarily high burden to warrant mandatory injunctive relief. Specifically, Plaintiff fails to show that the law and facts clearly favor its position. See Id. And because Plaintiff's request for mandatory injunctive relief fails on this ground, the Court need not address the other Winter factors.

         Plaintiff's dispute concerns whether USCIS erred in finding that PayJoy's “Financial Analyst” position is not a “specialty occupation.” As defined by statute, a “specialty occupation” for present purposes is “an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 8 U.S.C. § 1184(i)(1)(A)-(B). Pertinent regulations clarify:

Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

8 C.F.R. § 214.2(h)(4)(ii). And as detailed under those same regulations, PayJoy can establish that Ms. Xie would perform a “specialty occupation” by proving to USCIS by a preponderance of the evidence that the Financial Analyst position meets one of four criteria:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can ...

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