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Dalgic v. Misericordia University

United States District Court, M.D. Pennsylvania

July 3, 2019

OZCAN DALGIC, Plaintiff,


          A. Richard Caputo United States District Judge.

         Presently 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 student's graduation.

         Dalgic's 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 granted.

         I. Background

         The 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.[1]

         Dalgic 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).

         By 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).

         Students 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 Dep., 76:76:18-77:3).

         As 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).[2] 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).

         In July 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).

         On December 4, 2013, Dessoye reprinted Dalgic's Form I-20. (See Def.'s SMF, ¶ 20; Pl.'s CSF, ¶ 20).[3] The parties dispute the significance of that action. (See Def.'s SMF, ¶ 19; Pl.'s CSF, ¶ 19).[4]

         Dalgic 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).

         Dessoye 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).[5] 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).

         USCIS 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, ¶ 35).

         Immediately 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).

         On 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).

         Dalgic 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 denied.

(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.).

         Upon 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).

         On 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 OPT request.
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 approved.

(Pl.'s SMF, Ex. “3”).

         Dalgic 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).

         On 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.).

         Dessoye sent an email to the Department of Homeland Security (“DHS”) on April 25, 2014. (See Pl.'s SMF, Ex. “8”). In that email, Dessoye indicated:

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 form I-290B.


         By 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 CFR 103.5(a)(4).


         In 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. “10”).

         Dessoye 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).

         In that email, sent to “”, Dessoye wrote:

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 is desperate!

(Pl.'s SMF, Ex. “9”).

         Dessoye 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).[6] 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.


         As a 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).

         While 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).

         In the 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.).

         Based 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, generally).

         The 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 disposition.

         II. Legal Standard

         Summary 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).

         The 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.

         Where 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.

         III. Discussion

         As 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 judgment motions.

         A. 8 C.F.R. § 214.2(f).[7]

         Section 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, 2003);
(B) The student has documentary evidence of financial support in the amount indicated on the SEVIS Form I-20 (or the Form I-20A-B/I-20ID);
(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 student's attendance.

Id. at § 214.2(f)(1).

         Optional 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 ...

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