UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

AMCOR RIGID PLASTICS USA, INC.

AND RUCHEN LIU,

Civil Action No. 14-12699

Plaintiffs,

Honorable Denise Page Hood

v.

U.S. CITIZENSHIP AND IMMIGRATION

SERVICES AND LORIA SCIALABBA,

Defendants.

______________________________________/

ORDER DENYING PLAINTIFFS’ MOTION FOR

SUMMARY JUDGMENT,

ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT,

ORDER DENYING PLAINTIFFS’ MOTION FOR

LEAVE TO AMEND THE COMPLAINT,

AND

ORDER DISMISSING ACTION

I. BACKGROUND

This matter is before the Court on cross-Motions for Summary Judgment filed

by Plaintiffs Amcor Rigid Plastics USA, Inc. (“Amcor”) and Ruchen Liu (“Liu”) and

by Defendants United States Citizenship and Immigration Services (“USCIS”) and

Lori Scialabba, Acting Director of USCIS. Response and replies have been filed.

On July 9, 2014, Plaintiffs filed the instant action against Defendants seeking

review of the USCIS’s rejection of Liu’s first H-1B Petition under the Administrative

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Procedures Act (“APA”), 5 U.S.C. § 706(2)(A). Amcor is headquartered in Ann

Arbor, Michigan specializing in designing and manufacturing containers for

beverages, the food industry, home products, pharmaceuticals and other goods. 

(Comp., ¶ 4) Liu is a citizen of China, entered the United States on an F-1 student

visa, graduated from Cornell University with Master’s Degree in Engineering

Management in May 2013. (Comp., ¶ 18) Lieu was granted an Optional Practical

Training (“OPT”) work authorization in order to work for Amcor, which is valid until

July 25, 2014. (Comp., ¶ 18) 

On April 1, 2014, Amcor filed an H-1B Petition, Form I-129 (“Petition”) on

behalf of Liu. (Comp., ¶ 19) The USCIS returned Amcor’s Petition on June 10, 2014,

with a form rejection letter date stamped April 28, 2014 indicating the Petition was

not properly filed. (Comp., ¶¶ 21-22) The Petition was filed at the California Service

Center (“CSC”) instead of the Vermont Service Center (“VSC”). (Comp., ¶¶ 28, 30)

Amcor submitted the rejected Petition to the VSC on June 27, 2014, but the USCIS

indicated that the Petition will be rejected again since the fiscal year 2015 was closed

on April 7, 2014. (Comp., ¶¶ 31-32) 

On September 29, 2014, the Court entered an Order denying Plaintiff’s Motion

for Preliminary Injunction.

II. SUMMARY JUDGMENT MOTIONS

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A. Standard of Review

Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant

summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The presence of factual disputes will preclude granting of summary

judgment only if the disputes are genuine and concern material facts. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is

“genuine” only if “the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id. Although the Court must view the motion in the light

most favorable to the nonmoving party, where “the moving party has carried its

burden under Rule 56(c), its opponent must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.

317, 323-24 (1986). Summary judgment must be entered against a party who fails to

make a showing sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial. In such a

situation, there can be “no genuine issue as to any material fact,” since a complete

failure of proof concerning an essential element of the nonmoving party's case

necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A

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court must look to the substantive law to identify which facts are material. Anderson,

477 U.S. at 248.

The APA provides that a court has the authority to hold unlawful and set aside

agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law. 5 U.S.C. § 706(2)(A). The APA directs courts to review

agency actions under a deferential standard. Bangura v. Hansen, 434 F.3d 487, 502

(6th Cir. 2006). An agency decision is arbitrary and capricious if the agency fails to

examine relevant evidence or articulate a satisfactory explanation for the decision. Id.

(citing, Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 42-

43 (1983)). The reviewing court “may not supply a reasoned basis for the agency’s

action that the agency itself has not given.” Id. “Even when an agency explains its

decision with less than ideal clarity, a reviewing court will not upset the decision on

that account if the agency’s path may reasonably be discerned.” Id. (quoting Alaska

Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 497 (2004)).

B. Arbitrary and Capricious

Plaintiffs argue that Defendants’ failure to provide the e-filing option for the H1B petition, only allowing a five-day window to submit the petition, and providing no

mechanism for re-submission of a timely filed petition due to clerical errors are

arbitrary and capricious actions under the APA. Plaintiffs assert that the time to file

the Petition should be equitably tolled since the H-1B Petition was initially timely

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filed, admittedly at the wrong service center. Plaintiffs claim Defendants should have

forwarded the timely filed H-1B Petition to the appropriate service center. Plaintiffs

argue that since e-filing was not available for H-1B petitions, the H-1B petitions

received by mail should have been forwarded physically to the proper service center,

as other e-filed petitions are electronically forwarded to the proper service center.

Defendants respond that it was Plaintiffs’ mistake that the H-1B Petition was

filed in the wrong service center and that given the sheer number of petitions filed,

Plaintiffs’ request for special treatment should not be granted. Defendants argue this

would be unfair to other H-1B petitioners whose petitions were properly filed, but did

not make the lottery cutoff date due to a visa held temporarily for those who

improperly filed their petitions. Defendants claim Plaintiffs’ request would require

the USCIS to save visa numbers for the anticipated number of petitions that were

timely filed, but improperly filed in the wrong service center. Defendants argue that

the rejection of Plaintiffs’ H-1B Petition was based on a rational administrative

decision, which, as acknowledged by Plaintiffs, does not violate any statute or

regulation. Defendants claim that the voluminous number of H-1B petitions filed in

such a short period of time makes it burdensome for Defendants to physically

determine and forward improperly filed petitions to the proper service center.

Plaintiffs acknowledge that Congress has set the annual quota for the H-1B visa

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at 65,000, and an additional 20,000 visas for persons with Master’s degrees from a

United States institution of higher education, for a total of 85,000. Approximately

172,500 petitions were filed for these visas as of April 10, 2014. Plaintiffs also

acknowledge that the petition must be executed and filed according to the regulations

and form instructions. They agree that the regulations provide that rejection of a visa

petition results from an untimely filing date and that no administrative appeal lies

from any rejection of a petition. The instructions state that, “[y]ou may file Form I129 electronically. Go to our Internet Web site at www.uscis.gov and follow the

detailed instructions on e-filing” and “[i]f you are e-filing this petition, it will

automatically be routed to the appropriate Service Center.” The USCIS website notes

that “the option to file Form I-129 has been temporary disabled within the e-Filing

System.” (Resp., Ex. D, Pg ID 192) The instructions refer the filer to the website, and

that the website notes that the option to file Form I-129 electronically has been

disabled. 

Plaintiffs were aware that the e-filing option was not available. Plaintiffs in fact

mailed the H-1B Petition, but to the wrong service center. Plaintiffs cannot argue that

they did not have notice that e-filing was not available for H-1B petitions. Defendants

submit reasons for not providing the e-filing option, including the capability of the

computer system to accept this type of visa petition. (Defs. Ex. I) Defendants argue

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that to devote time and resources to physically forward mailed applications to other

service centers is burdensome and does not involve the same operational burden as

routing e-filed petitions. Defendants claim that opening, reviewing, and re-routing

misfiled paper H-1B petitions, which in fiscal year 2015 numbered 386, takes

substantial time and resources. (Haskell Decl., Par. 7) Defendants argue that the

numerical limitations imposed by Congress, the extreme oversubscription of H-1B

visas and the tight time frame for processing and adjudicating these visas necessitate

strict procedural rules and deadlines.

The regulations provide that “a benefit request will be considered received by

USCIS as of the actual date of receipt at the location designated for filing such benefit

request ...” 8 C.F.R. Sec. 103.2(a)(7). There is no dispute that USCIS did not receive

Plaintiffs’ H-1B Petition on April 1, 2014 “at the location designated” by the filing

instruction. Based on the regulations, Defendants’ rejection of Plaintiffs’ H-1B

Petition, submitted a second time and not received by April 1, 2014, was not arbitrary

and capricious. 

The 85,000 visa petitions must be approved before the start of the fiscal year

beginning October 1, 2014. Defendants claim that in order to meet the deadline and

other statutory mandates, the USCIS has established and published a procedure that

would allow it to equitably and timely accept and receive enough petitions to meet the

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85,000 allowed petitions by the October 1, 2014 deadline. The regulations provide

that if the numerical limit is met during the first five business days allowed to file H1B petitions, known as the “cap season,” the USCIS “may” then randomly select, by

computer-generated selection, a “number of petitions deemed necessary to generate

the numerical limit of approvals,” known as the “lottery.” 8 C.F.R. 214.2(h)(8)(ii)(B).

The regulations also provide that the USCIS will reject any H-1B petitions

received after the first five days if the numerical limit has been met. Defendants assert

that the bases for rejecting improperly filed petitions are fairness and efficiency

because the USCIS’s mandate is to approve 85,000 visa petitions, but no more than

85,000 petitions. Allowing petitioners who improperly filed petitions to resubmit

such petitions would require the USCIS to reserve visa numbers for an anticipated

number of petitions that would be improperly filed, potentially leaving a number of

visas unused. This process is unfair to H-1B petitioners whose petitions were properly

filed. 

Given the October 2014 deadline, from the April 2014 filing dates, the USCIS

has only six months to process the more than 172,000 petitions filed and approve

85,000 of those petitions under this H-1B category. The Court finds that Plaintiffs

have failed to show that Defendants’ rejection of Plaintiffs’ Petition was arbitrary and

capricious since the rejection was based on the regulations, instructions and other

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published guidelines. 

C. Equitable Tolling

Plaintiffs also argue that the time to submit the H-1B Petition should be

equitably tolled since they initially filed the Petition within the 5-day time frame, but

at the wrong service center. Administrative agency filing deadlines may be equitably

tolled in appropriate circumstances. Hernandez v. Holder, 457 Fed. Appx 487, 492

(6th Cir. 2012)(involving a Temporary Protected Status application in immigration

setting). However, tolling is applied if the mistake is beyond the applicant’s’ control. 

Id. at 493. Equitable tolling is appropriate where the government’s error caused an

applicant to miss a deadline, but there is no authority for the proposition that the

deadline be tolled due to an applicant’s error. Id. at 493.

In this case, Defendants did not cause Plaintiffs to miss the deadline. Plaintiffs

acknowledge it was a clerical error on their part that the application was filed in the

wrong service center. Even a lawyer’s mistake is not a valid basis for equitable tolling. 

Whalen v. Randle, 37 Fed. Appx. 113, 120 (6th Cir. 2002). Equitable tolling is not

applicable in this case.

III. MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

Plaintiffs seek to amend their Complaint to add a factual allegation that the

second rejection by the USCIS occurred, that approval of Liu’s H-1B nonimmigrant

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status would not cause the Fiscal Year 2015 to exceed the caps set forth in 8 U.S.C.

§ 1184(g)(1) or (g)(5), to add a claim for relief under the doctrine of equitable tolling

and to add a claim for mandamus and declaratory relief. Defendants oppose the

motion asserting that they acknowledged in their summary judgment briefs the H-1B

Petition was rejected a second time. They claim that the issue of equitable tolling has

been argued in the parties’ previous briefs and that any factual allegation that allowing

Plaintiffs’ H-1B Petition is irrelevant to the equitable tolling argument and does not

create a genuine issue of fact that could defeat summary judgment.

Rule 15(a) provides that a party may amend its pleading once as a matter of

course within 21 days after a responsive pleading is served. Fed. R. Civ. P. 15(a)(1). 

Rule 15(a)(2) further provides that a party may amend its pleading on leave of court. 

Leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). If a

complaint cannot withstand a motion to dismiss under Rule 12(b)(6), the motion to

amend should be denied as futile. Rose v. Hartford Underwriters Ins. Co., 203 F.3d

417, 420 (6th Cir. 2000).

The Court finds that the factual allegation that the USCIS rejected Plaintiffs’

Petition a second time is incorporated in the parties’ summary judgment briefs and

arguments. The issue of equitable tolling has been addressed above. The factual

allegation that approving Liu’s Petition would not exceed the statutory cap also does

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not create a genuine issue of material fact on the equitable tolling claim since the

Petition was filed in the wrong service center. Because Plaintiffs are not entitled to

a clear and undisputable right to the relief sought, mandamus relief under 28 U.S.C.

§ 1361 is not available to Plaintiffs. The rejection of Plaintiffs’ Petition is not an

extraordinary situation. Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542

U.S. 367, 380 (2004) (Mandamus relief is a “drastic and extraordinary remedy” that

is “only to be reserved for extraordinary situations.”). If an agency has discretion in

a matter, the court does not have subject matter jurisdiction under the Mandamus Act. 

Maftoum v. Chavez, 2007 WL 3203850 at *3 (E.D. Mich. Oct. 31, 2007). Plaintiffs’

Motion for Leave to Amend the Complaint is denied as futile.

IV. CONCLUSION

For the reasons set forth above, 

IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. No. 14)

is DENIED.

IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment

(Doc. No. 22) is GRANTED.

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IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File Amended

Complaint (Doc. No. 28) is DENIED.

IT IS FURTHER ORDERED that this action is DISMISSED with prejudice.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: November 26, 2014

I hereby certify that a copy of the foregoing document was served upon counsel of

record on November 26, 2014, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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