United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge.
before me are cross-motions for summary judgment filed by
Plaintiff Ozcan Dalgic (“Dalgic”) (Doc. 50) and
Defendant Misericordia University
(“Misericordia”) (Doc. 53). Dalgic attended and
graduated from Misericordia's Doctor of Physical Therapy
Degree Program in December 2013 while on an F-1 visa. As
authorized by federal law, Dalgic sought to remain in the
United States thereafter for post-completion Optional
Practical Training (“OPT”), the application and
approval process for which is set forth in 8 C.F.R. §
214.2(f)(11). In order to apply for OPT, the student must
first have a recommendation from his or her university's
Designated School Official (“DSO”). Pursuant to
the regulations, a student must submit his or her OPT
application within 30 days of the date the DSO enters the OPT
recommendation into the Student and Exchange Visitor
Information System (“SEVIS”). However, the
student cannot submit the application until 90 days before
his or her graduation date. In other words, the earliest the
DSO can submit the OPT recommendation is 120 days before the
OPT application was denied in March 2014, which Dalgic claims
was caused by the negligence of Misericordia's DSO
prematurely submitting the OPT recommendation in July 2013,
i.e., more than 120 days before his graduation.
While Misericordia admits that it prematurely recommended
Dalgic for OPT in July 2013, it contends that subsequent
events that took place in December 2013 establish that
Dalgic's own conduct caused the denial of his OPT
application. Because the admissible record evidence
demonstrates that there is no genuine issue of fact that
Misericordia's negligence caused the denial of
Dalgic's application to participate in OPT and he is
entitled to judgment as a matter of law, Misericordia's
motion for summary judgment will be denied and Dalgic's
cross-motion for summary judgment as to liability will be
facts are derived from the parties' factual statements,
(see Doc. 51, Plaintiff's Statement of Material
Facts, “Pl.'s SMF”; Doc. 54, Defendant's
Statement of Material Facts, “Def.'s SMF”),
their responsive factual statements, (see Doc. 59,
Plaintiff's Counterstatement of Facts, “Pl.'s
CSF”; Doc. 61, Defendant's Counterstatement of
Facts, “Def.'s CSF”), and the relevant,
admissible documents and testimony of record.
was born in Turkey in 1980. (See Def.'s SMF,
¶¶ 1-2; Pl.'s CSF, ¶¶ 1-2). Dalgic
came to the United States in 2005 on an F-1 visa.
(See Def.'s SMF, ¶ 3; Pl.'s CSF, ¶
3). Upon entering the United States, Dalgic attended several
educational institutions where he studied biology and
English. (See Pl.'s SMF, ¶ 2; Def.'s
CSF, ¶ 2).
2011, Dalgic was in the position to pursue his goal of
obtaining a physical therapy degree, so he enrolled in
Misericordia's Doctor of Physical Therapy Degree Program
with an anticipated graduation date in December 2013.
(See Pl.'s SMF, ¶¶ 3-4; Def.'s
CSF, ¶¶ 3-4). Misericordia was a certified member
of the Student and Exchange Visitor Program
(“SEVP”). (See Pl.'s SMF, ¶ 5;
Def.'s CSF, ¶ 5).
graduating from SEVP institutions may be authorized to remain
in the United States to participate in Optional Practical
Training (“OPT”). See 8 C.F.R.
214.2(f)(10). The Code of Federal Regulations sets forth the
“OPT application and approval process.”
Id. at § 214.2(f)(11). OPT can take place
either before or after graduation. (See Dessoye
required by federal law, a SEVP-certified institution was
required to employ a Designated School Official.
(See Pl.'s SMF, ¶ 8; Def.'s CSF, ¶
8). Misericordia employed Jane Dessoye
(“Dessoye”) as its DSO from 2003 through June
2016. (See Pl.'s SMF, ¶ 9; Def.'s CSF,
¶ 9). A DSO's responsibilities include,
inter alia, assisting students with applying for
OPT, instructing students to submit the proper documentation
for OPT, helping students with filling out important forms,
and providing students with accurate information to maintain
non-immigration student status. (See Dessoye Dep.,
77:11-17, 79:5-19, 81:5-14, 83:10-16).
2013, Dalgic and Dessoye had a meeting where they discussed
Dalgic's graduation and his hope to participate in OPT
thereafter. (See Dalgic Dep., 97:15-99:5). The
parties do not dispute that Dessoye recommended Dalgic for
OPT on July 24, 2013. (See Def.'s SMF, ¶ 7;
Pl.'s CSF, ¶ 7). The parties do dispute, however,
whether Dalgic requested Dessoye complete the recommendation
at that time. (See id.). Either way, it is
undisputed that this recommendation was submitted prematurely
and prior to the time permitted by the applicable
regulations. (See Pl.'s SMF, ¶ 22;
Def.'s CSF, ¶ 22; see also Doc. 66, 8
(Misericordia characterizing the July 2013 recommendation as
“premature”)). Dessoye never cancelled her July
24, 2013 recommendation. (See Pl.'s SMF, ¶
14; Def.'s CSF, ¶ 14).
December 4, 2013, Dessoye reprinted Dalgic's Form I-20.
(See Def.'s SMF, ¶ 20; Pl.'s CSF,
¶ 20). The parties dispute the significance of
that action. (See Def.'s SMF, ¶ 19;
Pl.'s CSF, ¶ 19).
spoke with Dessoye about OPT again in December 2013.
(See Def.'s SMF, ¶ 9; Pl.'s CSF, ¶
9). Dessoye provided Dalgic with an OPT application packet.
(See Def.'s SMF, ¶ 11; Pl.'s CMF,
¶ 11). According to Dalgic, the instructions in one of
the documents provided by Dessoye were outdated and
incorrectly indicated that the OPT application fee was
$340.00. (See Dalgic Dep., 125:17-23). Dessoye,
however, testified that it was “implausible” that
she would have provided a copy of “incorrect
instructions.” (Dessoye Dep., 151:7-13). Dalgic did not
confirm the correct fee prior to submitting his OPT
application, stating that the instructions were provided by
his advisor and he “100 percent trusted her.”
(Dalgic Dep., 128:16-130:9).
assisted Dalgic with completing his OPT application,
i.e., the Form I-765, “Application for
Employment Authorization.” (Dalgic Dep., 112:7-18;
see also Dessoye Dep., 77:8-10). After the
application was completed, Dalgic submitted his signed Form
I-765 directly to United States Citizenship and Immigration
Services (“USCIS”). (See Def.'s SMF,
¶¶ 22, 31; Pl.'s CSF, ¶¶ 22, 31).
received Dalgic's application on December 18, 2013.
(See Def.'s SMF, ¶ 32; Pl.'s CSF,
¶ 32). USCIS returned Dalgic's application packet to
him with a Form I-797C dated December 20, 2013 because
“[t]he check amount is incorrect, or has not been
provided.” (Def.'s SMF, ¶ 33; Pl.'s CSF,
¶ 33). Dalgic received this notice prior to Christmas of
2013. (See Def.'s SMF, ¶ 35; Pl.'s CSF,
after receiving that notice from USCIS, Dalgic called Dessoye
to inform her that he received a letter saying the incorrect
filing fee was submitted. (See Def.'s SMF,
¶ 36; Pl.'s CSF, ¶ 36). According to Dalgic,
after he received that notice, Dessoye apologized for
providing him with the incorrect filing fee amount, before
providing him with the correct fee, i.e., $380.00.
(See Dalgic Dep., 122:7-13, 220:11-22). Dalgic
subsequently “double check[ed]” this amount
online. (Id. at 122:18-123:9).
January 7, 2014, Dalgic resubmitted his OPT application with
the proper filing fee. (See Def.'s SMF, ¶
39; Pl.'s CSF, ¶ 39). Dalgic received notice that
his application with the proper filing fee was received by
USCIS on January 9, 2014. (See Def.'s SMF,
¶ 40; Pl.'s CSF, ¶ 40).
received a letter from USCIS dated March 18, 2014 informing
him that his OPT application was denied. (See
Def.'s SMF, ¶ 41; Pl.'s CSF, ¶ 41). That
letter stated, in pertinent part:
The record shows that you filed your Form I-765 on January
09, 2014. You must file the Form I-765 with USCIS within 30
days of the date the Designated School Official (DSO) entered
the recommendation for OPT into your SEVIS record. You
applied for OPT on July 24, 2013. At the time of filing your
Form I-765, more than 30 days had elapsed since your DSO
entered the recommendation for OPT into your SEVIS record.
Therefore, your application for employment authorization is
(Pl.'s SMF, Ex. “4”). The denial letter also
informed Dalgic that if he disagreed with the decision or had
additional evidence to submit, he could file a motion to
reopen or a motion to reconsider. (See id.). Dalgic
was advised that a motion to reopen “must state the new
facts to be considered and must be supported by affidavits or
other new documentary evidence, ” while a motion to
reconsider required proof that “the decision was
legally incorrect according to statute, regulation, and/or
precedent decision.” (Id.).
receiving the denial letter, Dalgic immediately contacted
Dessoye, who apologized and stated that she would see what
she could do. (See Def.'s SMF, ¶¶ 42,
44; Pl.'s CSF, ¶¶ 42, 44).
March 21, 2014, Dessoye sent a letter to USCIS stating:
I am writing to confirm that, as the Designated School
Official for Misericordia University, I mistakenly submitted
an OPT request for the above-named student on 07/24/2013. The
student was not even scheduled to complete degree
requirements until 12/18/2013. As such, the OPT request
should not have been submitted at that point in time. On
01/22/2014, a second OPT request was submitted. On
03/18/2014, it was denied because the I-765 form was
submitted more than 30 days after submission of the July 2013
Given the above, I am writing in support of the student's
request to reopen or reconsider the decision. The original
OPT submission was entirely an error on my part, an error for
which I apologize. I respectfully request that the student be
held harmless for this mistake and that his OPT request be
(Pl.'s SMF, Ex. “3”).
met with Dessoye in April 2014. (See Def.'s SMF,
¶ 45; Pl.'s CSF, ¶ 45). Dessoye filled out the
appeal paperwork, and she sent it herself to USCIS.
(See Dalgic Dep., 141:1-17).
April 1, 2014, Dessoye sent a fax to USCIS including a copy
of his motion to reopen or reconsider. (See
Pl.'s SMF, Ex. 7”). Dessoye wrote on the cover
letter of that fax that “[w]e are filing a motion to
reopen and a motion to reconsider a decision that was made
because of an error on my part.” (Id.).
sent an email to the Department of Homeland Security
(“DHS”) on April 25, 2014. (See
Pl.'s SMF, Ex. “8”). In that email, Dessoye
Due to human error, specifically my error, an OPT request
submitted on behalf of the above-named student was denied.
When the notice of denial was received on March 18, 2014 an
appeal was immediately submitted. The student subsequently
learned that it could take up to 6 months for the appeal to
be acted upon. The student has since attempted to renew his
driver's license but is unable to do so due to the fact
that he is no longer in active status. So not only is the
student unable to begin work in a position that he has been
offered as a doctor of physical therapy, but without the use
of his vehicle, he is also struggling to do the basics,
e.g., grocery shop. He is in a very difficult
situation because of my mistake. I am respectfully asking if
anything can be done to expedite the review of his appeal
letter dated July 15, 2014, USCIS denied Dalgic's motion
for reconsideration of the denial of his Application for
Employment Authorization. (See Pl.'s CSF, Ex.
“D”). That letter explained:
Under Title 8 Code of Federal Regulations (8 CFR), section
103.5 a motion to reopen must state the new facts to be
provided in the reopened proceeding and must be supported by
affidavits or other documentary evidence. A motion to
reconsider must also state the reasons for reconsideration
and be supported by any pertinent precedent decisions to
establish that the decision was based on an incorrect
application of law or service policy.
Your motion does not provide new facts, nor does it give
reasons for reconsideration. Your motion is dismissed per 8
response to the denial letter, Dessoye sent a letter to USCIS
dated July 21, 2014 that was virtually identical to her March
21, 2014 letter to USCIS. (See Pl.'s SMF, Ex.
also authored an email on July 21, 2014 to the Vermont
Service Center, which Dessoye characterized as “kind of
a troubleshooting arm or branch of USCIS.” (Dessoye
Dep., 137:15-138:13). Dessoye sent that email “[t]o the
extent that [she] was not aware of what, if anything, Vermont
could do for me, for us.” (Id. at 139:3-5).
email, sent to “firstname.lastname@example.org”, Dessoye
I have just been notified by [Dalgic] that an appeal of a
denial of an OPT request dated March 2014 has likewise been
denied. This is the case despite the fact that documentation
submitted with the appeal included a letter from me in which
I accepted full responsibility for an error in timing that
resulted in the original denial. I am stunned at the decision
because the student was not at all at fault - it was
completely my error. Is there any recourse?
Thank you for taking time to review this request. The student
(Pl.'s SMF, Ex. “9”).
received a response to her July 21, 2014 email on July 31,
2014 from an individual identified in the record only as
Officer Wade of the “Vermont Service Center Customer
Service Unit.” (Def.'s SMF, Dessoye Affidavit,
attachment). The response provides:
This is a response to the inquiry submitted on July 21, 2014,
at 12:42 PM, relating to EACXX-XX-88701.
Upon receipt of your inquiry, this file was requested and
reviewed. A review of the file shows the following:
This applicant filed the Application for Employment
Authorization (Form I-765) with U.S. Citizenship and
Immigration Services (USCIS) on January 9, 2014. The Form
I-765 must be filed within 30 days of the Designated School
Official's (DSO) entry of a recommendation for Optional
Practical Training (OPT) in the applicant's Student and
Exchange Visitor Information System (SEVIS) record.
The record shows that the DSO recommendation for OPT was
entered in the applicant's record on July 24, 2013. It is
noted that you indicated the recommendation was made in
error. The record also shows that a Certificate for
Eligibility for Nonimmigrant (F-1) Student Status (SEVIS Form
I-20) was reprinted on December 4, 2013, and submitted as
supporting evidence with the applicant's Form I-765. The
DSO recommendation for OPT was entered more than 30 days
prior to the filing of the Form I-765. In addition, based on
the SEVIS Form I-20 present in the filing materials, dated
December 4, 2013, the intent to recommend this applicant for
employment authorization based on OPT is noted. However, more
than 30 days had elapsed from the reprinting of the Form I-20
and the filing date of the Form I-765.
Also noted is your information stating that a second request
for OPT was entered in this applicant's SEVIS record on
January 22, 2014. This recommendation also does not meet the
eligibility criteria for employment authorization based on
OPT, as the DSO recommendation for OPT must be entered before
the student applies with USCIS using the Form I-765.
A review of this file shows that the applicant filed the Form
I-765 with USCIS more than 30 days following the DSO
recommendation for OPT in the SEVIS record. In addition, any
recommendation for OPT made following the filing of the Form
I-765 does not meet the eligibility criteria found in Title 8
Code of Federal Regulations (8 CFR), section 214.2(f).
The review of this file shows that the decision is correct;
the application will not be re-opened on Service Motion.
result of the denial of his OPT application, Dalgic was
unable to begin working at a job that he had secured as a
doctor of physical therapy. (See Dessoye Dep.,
158:3-22). Instead, Dalgic enrolled in a program for a
master's degree in organizational management at
Misericordia. (See Dalgic Dep., 58:3-7, 157:5-17).
Dalgic was enrolled in that program, Fred Coop, the chair of
Misericordia's business department, emailed Dessoye (and
others) on January 8, 2015 inquiring whether it was
Misericordia's “fault [Dalgic] does not have a work
visa.” (Pl.'s SMF, Ex. “2”). In
answering that question, Dessoye explained that what neither
she nor Dalgic “realized is that he needed to submit
his application within 30 days of my submission of his
recommendation. Because roughly 5 months had elapsed between
the 2, immigration denied the request in March.”
(Id.). Dessoye went on to write that “[i]t all
comes down to a debate as to whether or not it was
Misericordia's (i.e., ‘my') responsibility to
know of and alert Ozcan to the timeline requirement for
submission of his application. Ozcan obviously believes
so.” (Id.). Dessoye testified at her
deposition she was not “falling on the sword” for
Dalgic in her response to Coop. (Dessoye Dep., 141:4-20).
same email chain that Coop's question and Dessoye's
response appear, Corina Staff, a business professor at
Misericordia, asked if “the only reason for which
[Dalgic's] visa was denied” was for the reason
identified by Dessoye. (Pl.'s SMF, Ex. “2”).
Dessoye responsed that to her “knowledge that was the
only reason that his visa was denied.” (Id.).
on the foregoing, Dalgic commenced this action on March 11,
2016. (See Doc. 1, generally). Dalgic
amended his pleading twice, and the operative pleading is the
Second Amended Complaint. (See Doc. 24,
generally). Therein, Dalgic alleges claims against
Misericordia for negligence (Count I) and negligent
interference with prospective contractual relations (Count
II). (See id., generally). Misericordia
answered the Second Amended Complaint on January 26, 2017.
(See Doc. 25, generally). Misericordia
subsequently filed for judgment on the pleadings.
(See Doc. 26, generally). That motion was
denied on September 29, 2017. (See Docs. 31-32,
parties proceeded to discovery, and at the conclusion
thereof, the parties filed the instant cross-motions for
summary judgment. (See Doc. 50, generally;
Doc. 53, generally). Dalgic moves for partial
summary judgment on the grounds that there exists no genuine
issues of fact as to Misericordia's liability for its
negligence. (See Doc. 52, generally).
Misericordia, conversely, contends that it is entitled to
summary judgment because Dalgic's own conduct was the
proximate cause of the denial of his OPT application, no
special relationship existed between Dalgic and Misericordia
as required to sustain a negligent interference claim, and
Dalgic's claims are barred by the statute of limitations.
(See Doc. 55, generally). The cross-motions
have now been fully briefed, so they are ripe for
judgment shall be granted “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). “A court may grant a motion for
summary judgment if, after it considers all probative
materials of record, with inferences drawn in favor of the
non-moving party, the court is satisfied that there are no
genuine issues of material fact and the movant is entitled to
judgment as a matter of law.” Chavarriaga v. N.J.
Dep't of Corrs., 806 F.3d 210, 218 (3d Cir. 2015)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 330,
106 S.Ct. 2548, 2556, 91 L.Ed.2d 265 (1986); Brooks v.
Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000)). “A
fact is ‘material' under Rule 56 if its existence
or nonexistence might impact the outcome of the suit under
the applicable substantive law. A dispute over a material
fact is ‘genuine' if ‘a reasonable jury could
return a verdict for the nonmoving party.'”
Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).
“In determining whether the dispute is genuine, the
court's function is not to weigh the evidence or to
determine the truth of the matter . . . .” American
Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 587,
581 (3d Cir. 2009) (citing Anderson, 477 U.S. at
248-49, 106 S.Ct. 2505).
moving party bears the initial burden to identify
“specific portions of the record that establish the
absence of a genuine issue of material fact.”
Santini, 795 F.3d at 416 (citing Celotex,
477 U.S. at 323, 106 S.Ct. 2548, 2553). If this burden is
satisfied by the movant, the burden then “shifts to the
nonmoving party to go beyond the pleadings and ‘come
forward with specific facts showing that there is a genuine
issue for trial.'” Id. (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538
(1986)). The nonmovant's burden is not satisfied by
“simply show[ing] that there is some metaphysical doubt
as to the material facts.” Chavarriaga, 806
F.3d at 218.
cross-motions for summary judgment are filed, the summary
judgment standard remains the same. Lawrence v. City of
Phila., 527 F.3d 299, 310 (3d Cir. 2008). When presented
with cross motions for summary judgment, the Court must
consider the motions separately, see Williams v. Phila.
Hous. Auth., 834 F.Supp. 794, 797 (E.D. Pa. 1993),
aff'd, 27 F.3d 560 (3d Cir. 1994), and view the
evidence presented for each motion in the light most
favorable to the nonmoving party. See Matsushita,
475 U.S. at 587, 106 S.Ct. 1348.
stated, Dalgic has moved for partial summary judgment with
respect to liability, while Misericordia seeks summary
judgment in its entirety on Dalgic's claims. The
parties' cross-motions implicate, in large part, the
federal regulations pertaining to the OPT application
process. Thus, I begin with a discussion of the applicable
regulations before proceeding to address the denial of
Dalgic's OPT application and the parties' summary
8 C.F.R. § 214.2(f).
214.2(f) of Title 8 of the Code of Federal Regulations
applies to students in “colleges, universities,
seminaries, conservatories, academic high schools, elementary
schools, other academic institutions, and in language
training programs[.]” 8 C.F.R. § 214.2(f). Under
that section, A nonimmigrant student may be admitted into the
United States in nonimmigrant status under section
101(a)(15)(F) of the [Immigration and Nationality Act, 8
U.S.C. § 1101, et seq.], if:
(A) The student presents a SEVIS Form I-20 issued in his or
her own name by a school approved by the Service for
attendance by F-1 foreign students. (In the alternative, for
a student seeking admission prior to August 1, 2003, the
student may present a currently-valid Form I-20A-B/I-20ID, if
that form was issued by the school prior to January 30,
(B) The student has documentary evidence of financial support
in the amount indicated on the SEVIS Form I-20 (or the Form
(C) For students seeking initial admission only, the student
intends to attend the school specified in the student's
visa (or, where the student is exempt from the requirement
for a visa, the school indicated on the SEVIS Form I-20 (or
the Form I-20A-B/I-20ID)); and
(D) In the case of a student who intends to study at a public
secondary school, the student has demonstrated that he or she
has reimbursed the local educational agency that administers
the school for the full, unsubsidized per capita cost of
providing education at the school for the period of the
Id. at § 214.2(f)(1).
Practical Training is detailed in § 214.2(f)(10)(ii).
The regulations provide that “[c]onsistent with the
application and approval process in paragraph (f)(11) of this
section, a student may apply to USCIS for authorization for
temporary employment for optional practical training directly
related to the student's major area of study.”
Id. at § 214.2(f)(10)(ii)(A). OPT may be
granted “[a]fter completion of the course of study, or,
for a student in a bachelor's, master's, or doctoral
degree program, after completion of all course requirements
for the degree (excluding thesis or equivalent). Continued