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UNITED STATES v. ARCHITECTS

July 9, 1997

THE UNITED STATES and LEONIDAS MATE, Plaintiffs, against RICHARD DATTNER ARCHITECTS, Defendants.


The opinion of the court was delivered by: MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 Leonidas Mate sues Richard Dattner Architect, P.C. for violations of the Immigration and Nationality Act, 8 U.S.C. § 1001 et seq. ("INA"), and the False Claims Act, 31 U.S.C. § 3729 et seq. ("FCA"). The United States is a nominal plaintiff here because the FCA requires that the Government be given the opportunity to pursue any claims under that statute. See 31 U.S.C. § 3730 (1994). Defendant moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons outlined below, defendant's motion is granted.

 I.

 In 1995, defendant, an architectural firm, employed Omolade Jacob Tukuru, a Nigerian citizen, as an architect. (Def. Mem. at 2) *fn1" Tukuru's temporary alien labor certification was to expire in the summer of 1995. (Id.) Department of Labor guidelines required that defendant search for qualified domestic workers before Tukuru's certification could be extended. (Id.) Therefore, on July 2, 1995, defendant advertised in The New York Times for an architect. (Pl. Affirm. at P 3(a)) Plaintiff responded to the advertisement and, on August 23, 1995, defendant interviewed him. (Id. P 3(b))

 Plaintiff claims that defendant did not hire him despite his qualification for the job. Instead, plaintiff claims, defendant submitted a false application for a temporary labor certification to the Secretary of Labor representing that after conducting a search, no qualified domestic workers were available for Tukuru's position. (Compl. at 2; Pl. Affirm. P 3(b), (g)) The Secretary then granted defendant's labor certification application. (Def. Mem. at 3)

 Plaintiff asserts two claims. First, he alleges an "action in tort for refusing to hire a fully qualified U.S. worker in favour of a foreign worker, using a fraudulently obtained certification 'that qualified persons in the U.S. are not available,' in violation of a clearly mandated public policy (20 C.F.R. s 655.0), which is important and involves a singularly public purpose." (Compl. at 2) Second, plaintiff asserts that defendant violated the FCA by knowingly presenting a "false claim for approval." (Compl. at 2-3) The Government declined to intervene in this action under the FCA, and, as he was permitted to do, plaintiff proceeded in the name of the United States. See 31 U.S.C. § 3730(b) (1994). Defendant moves to dismiss both claims pursuant to Fed. R. Civ. P. 12(c).

 II.

 When evaluating a motion for judgment on the pleadings, a court must view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party. Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 55 (2d Cir. 1985). A court must also take "the well-pleaded facts alleged in the complaint . . . as admitted," Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir. 1974), and may not dismiss the complaint "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." Madonna v. United States, 878 F.2d 62, 65 (2d Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). Judgment on the pleadings may be granted only if, on the facts admitted, the moving party is clearly entitled to judgment. Maggette v. Dalsheim, 709 F.2d 800 (2d Cir. 1983).

 A. The Statutory and Regulatory Structure

 The INA creates two broad classifications for persons seeking to enter the United States: immigrant and nonimmigrant. A person is presumed to be an immigrant unless proved to fall within one of the classes of persons considered nonimmigrants. 8 U.S.C. § 1184(b) (1994). "Unlike the lawful immigrant . . . who is admitted to the United States for permanent residence, the nonimmigrant may remain only for the duration of an authorized stay and engage only in those activities that are compatible with the specific nonimmigrant status given on entry." 1 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 12.01, at 12-4 (1997). Those seeking nonimmigrant status must meet the requirements of a defined nonimmigrant class to obtain a nonimmigrant visa. 8 U.S.C. § 1201(a)(2) (1994).

 Section 1101(a)(15) defines several classes of persons deemed nonimmigrants. Among them are temporary workers who perform services which domestic workers are unavailable to perform. The statute provides:

 
(15) The term 'immigrant' means every alien except an alien who is within one of the following classes of nonimmigrant aliens --
 
(H) an alien . . . (ii) (b) having a residence in a foreign country which he has no intention of abandoning who is coming to temporarily to [sic ] the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country . . . .

 8 U.S.C. § 1101(a)(15)(H)(ii)(b) (1994).

 In addition, the INA defines certain classes of persons who cannot be admitted to the United States, whether as immigrants or nonimmigrants, unless certain conditions are met. Those classes of persons include aliens who seek to enter the United States to perform any type of labor. The statute provides:

 
The following describes classes of excludable aliens who are ineligible to receive visas and who shall be excluded from ...

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