Opinion
3:20-cv-01468-JR
11-18-2021
JIWEI XIA, Plaintiff, v. LOREN K. MILLER, Director, U.S. Citizenship and Immigration Services Nebraska Service Center, et al., Defendants.
FINDINGS & RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Pending before this Court is plaintiff Jiwei Xia's motion for summary judgment (ECF 19) and defendants' cross motion for summary judgment (ECF 21). For the following reasons, plaintiff's motion should be denied, and defendants' motion should be granted.
BACKGROUND
I. Factual Background
Plaintiff Jiwei Xia is a native and citizen of China. Certified Administrative Record (“C.A.R.”) 234-35. He currently resides in Portland, Oregon. Id. at 234. Mr. Xia was previously granted O-1A nonimmigrant status valid from March 1, 2017, to February 29, 2020, for employment at Paddle Palace, a table tennis club in Portland, Oregon. Id. at 454-55.
On November 12, 2019, plaintiff filed a Form I-140 immigrant visa petition with United States Citizenship and Immigration Services (“USCIS”). C.A.R. 234-242. Mr. Xia's I-140 self-petition requested classification as a table tennis coach of extraordinary ability, and included evidence documenting his work coaching Japan's National Women's Table Tennis Team; 1 coaching individuals at Paddle Palace who went on to win various awards; his salary; and published articles about himself and various athletes he has coached. Id. On March 26, 2020, USCIS issued a Request for Evidence (“RFE”). Id. at 147-52. On May 20, 2020, plaintiff responded to the RFE with additional evidence. Id. at 153-233. On June 22, 2020, defendant issued “Decision I” denying plaintiff's I-140 petition. Id. at 134-45.
Plaintiff filed a complaint with this Court on August 27, 2020, challenging USCIS's Decision I under the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq. ECF 1. On November 30, 2020, USCIS sua sponte reopened plaintiff's I-140 petition and vacated Decision I. C.A.R. 030-31. That day USCIS also issued a second RFE to plaintiff that outlined the two-part analysis structuring the agency's evaluation of his documentation. Id. at 032-044. USCIS stated that it would first determine whether plaintiff submitted sufficient evidence to show a onetime achievement or, alternatively, provided documentation fitting into at least three of the ten criteria.
If plaintiff met this threshold requirement, the agency would then determine whether his documentation demonstrated that he had sustained national or international acclaim and that his achievements were recognized as one of a small percentage of individuals who have risen to the “very top of his field of endeavor.” Id. at 033. USCIS evaluated plaintiff's documentation using the two-part analysis, noted the two criteria that had been met, areas of insufficiency regarding the documentation, and what could be submitted to potentially satisfy his burden. Id. at 033-038.
Plaintiff filed his response to the Second RFE on January 6, 2021. C.A.R. 040-134. On March 11, 2021, after considering the evidence, including plaintiff's additional submissions and his counsel's legal arguments, USCIS determined in a 12-page decision that he failed to establish he was a table tennis coach of extraordinary ability and denied his I-140 petition. Id. at 006-29 2 (Decision II). In the first step of the required two-step analysis, USCIS found that plaintiff had failed to meet his burden of establishing that he met three out of ten criteria listed in 8 C.F.R. § 204.5 (h)(3)(i)-(x). Although plaintiff contends that he satisfied the Second, Third, Fifth and Ninth Criteria, USCIS concluded that he failed to satisfy the Fifth and Ninth Criteria.
The parties agree that Criterion Two, Plaintiff's Membership in Associations in Table Tennis Coaching, and Criterion Three, Published Material About Plaintiff, were met.
For Criterion Five, Contribution of Major Significance, USCIS found plaintiff failed to show that awards won by his coached athletes were commensurate with a contribution of major significance to the field. USCIS noted its Policy Manual acknowledges that “an alien beneficiary who is an Olympic coach whose athlete wins an Olympic medal while under the alien's principal tutelage would likely constitute evidence comparable to that in 8 CFR 204.5(h)(3)(v).” C.A.R. at 011. Plaintiff presented evidence that one of his athletes won a bronze medal at the World Table Tennis Championships but did not convince USCIS that it carried as much weight as an Olympic medal when deciding whether it rose to a contribution of major significance. Further, because this was a team medal, USCIS explained that plaintiff had not demonstrated that the entire Japan Women's team was under his principal tutelage at the time the medal was won-or that the other coached athletes were under his principal tutelage at the time they won their proffered award.
For Criterion Nine, High Salary, USCIS found that plaintiff's actual hourly wage and annual salary, while possibly above average for a table tennis coach, did not establish that he commanded a higher salary than those in his field. USCIS also found that plaintiff's calculations of his alleged hourly wage to account for his monthly base salary was not a fair and appropriate comparison to others in his field. USCIS found plaintiff had failed to meet this threshold requirement and was not eligible to receive an extraordinary ability visa. See C.A.R. 003-012. 3
As an alternative ground for denial, under Step Two, USCIS found that plaintiff had not demonstrated that he possessed the high level of expertise required for the extraordinary ability immigrant classification. In Decision II, USCIS explained that it had reviewed all of the evidence in the record and found plaintiff failed to sustain his burden of establishing that he had reached a level of expertise indicating he is one of that small percentage who have risen to the very top of the field of endeavor or that he has sustained national or international acclaim. Id. at 015-016.
On April 9, 2021, plaintiff filed a first amended complaint, ECF 16, and, on May 10, 2021, defendants filed their answer, ECF 17. Pursuant to the Court's scheduling order, ECF 15, plaintiff filed his Motion for Summary Judgment on June 11, 2021, ECF 19, and defendants filed their cross motion for summary judgment on July 12, 2021, ECF 21.
II. Relevant Statutory Background
Federal law permits first preference immigrant visa allocation to aliens with extraordinary ability in the sciences, arts, education, business, or athletics. 8 U.S.C. § 1153(b)(1)(A). A foreign national may be granted an immigrant visa on the basis of extraordinary ability pursuant to 8 U.S.C. § 1153(b)(1)(A), if:
(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation;
(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability; and
(iii) the alien's entry into the United States will substantially benefit prospectively the United States.
The statute does not define extraordinary ability, but federal regulations define it as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” 8 C.F.R. § 204.5(h)(2). To meet the highly restrictive 4 definition of extraordinary ability, the self-petitioner must submit evidence that he “has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise, ” 8 C.F.R. § 204.5(h)(3), including documentation of a one-time achievement (that is, a major, internationally recognized award) or at least three of the following:
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.8 C.F.R. § 204.5(h)(3)(i)-(x). 5
After the self-petitioner files his I-140 petition, USCIS follows a two-step analysis of the petitioner's documentation by first determining whether the petitioner provides evidence of a onetime achievement or documents falling within at least three of the ten regulatory criteria. See Kazarian v. USCIS, 596 F.3d 1115, 1121 (9th Cir. 2010). If the petitioner provides evidence satisfying at least three criteria, USCIS next considers the totality of the evidence in making the final merits determination regarding the foreign national's qualifications and achievements. See USCIS Adjudicator's Field Manual (“AFM”) § 22.2(i)(i)(A). To meet this second step, the petitioner's documentation must demonstrate a “sustained national or international acclaim” to qualify for the extraordinary ability designation. 8 U.S.C. § 1153(b)(1)(A)(i); Rijal v. USCIS, 772 F.Supp.2d 1339, 1343 (W.D. Wash. 2011), aff'd, 683 F.3d 1030 (9th Cir. 2012). Petitioner must also establish that he or she is one of a small percentage who has risen to the very top of his or her field of endeavor. See 8 C.F.R. § 204.5(h)(2). The Ninth Circuit has recognized that the standard for the extraordinary ability immigrant visa is “extremely restrictive” by design. See Kazarian, 596 F.3d at 1123. A self-petitioner bears the burden of proof to establish that he is eligible for the requested benefit by a preponderance of the evidence. 8 C.F.R. § 103.2(b)(1); Matter of Chawathe, 25 I. & N. Dec. 369, 375 (2010) (stating that the standard of proof is satisfied if a claim is “more likely than not”).
LEGAL STANDARD
Summary judgment is appropriate when the moving party has established that the pleadings and (if applicable) discovery demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The movant bears the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where a plaintiff brings their claims 6 under the Administrative Procedure Act (“APA”), “an agency action must be upheld on review unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.'” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). Courts “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” and “the standard of review is highly deferential; the agency's decision is entitled to a presumption of regularity, and [the court] may not substitute [its] judgment for that of the agency.” Id. (quotation marks and citation omitted.).
Despite this deference, courts “must engage in a careful, searching review to ensure that the agency has made a rational analysis and decision on the record before it.” Nat'l Wildlife Fed. v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 927 (9th Cir. 2008). “[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.''” Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
DISCUSSION
Under the APA's highly deferential standard of review, all that is required to uphold agency action is for the agency to have “articulate[d] a rational connection between the facts found and the conclusions made.” Wild Fish Conservancy v. Salazar, 628 F.3d 513, 529 (9th Cir. 2010). Here, USCIS denied plaintiff's immigrant visa petition seeking classification as an alien of extraordinary ability in the field of coaching table tennis pursuant to Section 203(b)(1)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1153(b)(1)(A), and grounded its denial in extensive, rational citation to record evidence. Because USCIS met this deferential standard, 7 the Court should grant defendants' cross motion for summary judgment and deny plaintiff's motion.
I. Defendants' Step One Decision Was Reasonable
In the first step of the required two-step analysis, USCIS found that plaintiff had failed to meet his burden of establishing that he met three out of ten criteria listed in 8 C.F.R. § 204.5 (h)(3)(i)-(x). Although plaintiff contends that he satisfied the Second, Third, Fifth and Ninth Criteria, USCIS reasonably concluded that he failed to satisfy the Fifth and Ninth Criteria, and the Court should grant defendants' cross motion for summary judgment on this basis.
1. USCIS Reasonably Found Plaintiff Did Not Meet the Fifth Criterion
To satisfy the Fifth Criterion, an applicant for an extraordinary ability visa must provide evidence of their “original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.” 8 C.F.R. § 204.5(h)(3)(v). Where an applicant shows that a standard does “not readily apply to [their] occupation, [they] may submit comparable evidence to establish [their] eligibility.” 8 C.F.R. § 204.5(h)(4). For the Fifth Criterion, Chapter 22.2(i)(1)(A) of the USCIS Adjudicator's Field Manual (“AFM”), states, “[a]n alien beneficiary who is an Olympic coach whose athlete wins an Olympic medal while under the alien's principal tutelage would likely constitute evidence comparable to that in 8 CFR 204.5(h)(3)(v).” Plaintiff raises two main challenges to USCIS's determination he did not establish an original contribution of major significance: (1) that USCIS erred by not considering non-Olympic awards; and (2) that the athletes were under his principal tutelage when they earned those awards.
After reviewing the record, the Court should find USCIS rationally concluded that plaintiff did not establish a contribution of major significance with record evidence. As the AFM provides, “major significance” in a field like plaintiff's involves coaching an athlete to the 8 pinnacle of his or her sport-for example, winning an Olympic medal. 8 C.F.R. § 204.5 (h)(3)(v); AFM Ch. 22.2(i)(1)(A). While plaintiff was invited to train at the United States Olympic Training Center in 2011, it is undisputed that he was never an “Olympic coach.” Further, it is clear that none of his coached athletes won an Olympic medal while he was their coach. And, as USCIS explained in its decision, the fact that an athlete receives the same ranking for winning at a World Championship does not establish that those non-Olympic events are commensurate. C.A.R. 022, 078-080.
USCIS invited plaintiff to cure this error, but he could not. In the Second RFE, USCIS explicitly “provide[d] suggested evidence that the petitioner could submit to satisfy each requested item, ” or “explain why or how the evidence in the record already establishes eligibility.” C.A.R. 033. The Second RFE specified that plaintiff “should submit additional documentation to demonstrate that the awards won by athletes coached by him is truly comparable to an original contribution of major significance, ” as 8 C.F.R. § 204.5 (h)(3)(v) and Chapter 22.2(i)(1)(A) of the AFM require. C.A.R. at 036-037. USCIS continued to list three examples of suggested evidence, one of which was an Olympic medal. C.A.R. at 036-037. Decision II reflects this reasoning where USCIS stated “there is no indication that being an assistant coach for a team that won a lesser award- as opposed to an Olympic medal-would be commensurate with a contribution of major significance.” C.A.R. 009. Plaintiff submitted evidence of a team bronze medal won by the Japan National Women's Table Tennis Team at the 2010 World Championships but failed to substantiate how this award was commensurate to winning an Olympic medal. USCIS's comparison of plaintiff's proffered awards to a contribution of major significance is precisely what 8 C.F.R. § 204.5 (h)(3)(v) mandates and the 9 reference to an Olympic medal properly echoes the cited example contained in Chapter 22.2(i)(1)(A) of the AFM. C.A.R. 012.
Plaintiff also failed to establish that any proposed award-winning individual athlete was under his “principal tutelage” at the time of winning an award. As USCIS explained in Decision II, there was no indication that once plaintiff ceased to be the principal coach “any awards an athlete receives in subsequent years, presumably under the tutelage of a different coach or coaches, would” qualify as his contribution of major significance. C.A.R. 009. For example, while plaintiff coached Ai Fukuhara at some point, by her own admission, she did not earn her various medals until the “following years.” Id. USCIS rationally concluded that since “there is no indication that she was still training with the petitioner at all” when she won these awards, “let alone” that she was “under his principal tutelage” at that time, they did not qualify as plaintiff's contributions of major significance to table tennis. Id. The same is true for the other athlete's plaintiff coached, as described in Decision II. Id. at 009-010. And finally, the positive descriptions in various letters may demonstrate the plaintiff is a skilled, successful, and beloved coach, but that does not equate to an individual who has risen to the very top of his field. See e.g., ECF 19 at 25 (statements by Ryan Wu's father about “why he believed Plaintiff stood out from other coaches he had met”). Without evidence that these athletes were under plaintiff's “principal tutelage” at the time they won the proffered awards, it was not arbitrary and 10 capricious, an abuse of discretion, or contrary to the applicable law for USCIS to find that such awards did not establish this criterion.
Nor did USCIS ignore Ms. Fukuhara's ITTF Player Profile or the May 2010 article from China News Service, “Japanese Table Tennis Star Ai Fukuhara Prepares for World Championship with Chinese Coach, ” as plaintiff suggests. ECF 19 at 21-22. In Decision II, USCIS acknowledged that Ms. Fukuhara's player profile indicated that her team placed third in the 2010 World Table Tennis Championships but highlighted that “[n]o primary evidence of the award was provided.” C.A.R. 012. Likewise, USCIS addressed the China News Service article, but noted that it supported the finding that Ms. Fukuhara did not win the listed awards while under plaintiff's “principal tutelage” because she said that she won them in the “following years.” Id. at 009.
USCIS noted that the same was true for plaintiff's coaching of the Japan National Women's team. It found the team bronze medal “was earned by the entire Japan National Women's Table Tennis Team” and the “record does not demonstrate that the team itself was under the petitioner's principal tutelage.” C.A.R. 012. USCIS did not argue that a team medal would not qualify; only that since plaintiff had proffered a team medal, he needed to supply sufficient evidence that the entire team was under his principal tutelage when they won the medal. The fact that “assistant coaches such as petitioner set up training schedules, create training plans and strategies, and supervise training sessions” did not establish that plaintiff was the principal coach. Id. Since the record showed that plaintiff only coached the entire team two days per week, for fewer hours than he regularly coached one team member, it was reasonable for USCIS to conclude that the entire team was not under his principal tutelage and that the rest of the team was coached by other coaches for a majority of the week. Since plaintiff “only addressed his role with one member of a multi-person team and the head coach, ” USCIS reasonably concluded the “record does not adequately demonstrate that coaching one member of a five-person team which won a bronze medal would be comparable to a contribution of major significance.” Id. at 012. USCIS therefore reasonably concluded plaintiff failed to show the Japan National Women's team was under his principal tutelage.
For these reasons, the Court should find USCIS rationally concluded plaintiff did not meet Criterion Five for failure to provide evidence of a contribution of major significance. 11
2. USCIS Reasonably Found Plaintiff Did Not Meet the Ninth Criterion
USCIS also rationally determined that plaintiff did not present record evidence to establish that his salary was substantially higher than others working in the same field. C.A.R. 013-015. For plaintiff to prove that he commanded a high salary in relation to others in the field, he would have to first submit evidence showing that his monthly salary and hourly wages are significantly higher in relation to that of other table tennis coaches in the United States. And the evidence would have to demonstrate that his high salary places him at the top of his field, rather than simply above average. See 8 C.F.R. § 204.5(h)(2); Skokos v. U.S. Department of Homeland Security, 420 Fed. App'x. 712, 713-14 (9th Cir. 2011). The parties agree that plaintiff earns a base salary of $1, 600 per month ($19, 200 per year) and $30 per hour for coaching and private lessons for a total income of $56, 150 in 2019. See ECF 19 at 11.
Plaintiff raises three challenges to USCIS's finding. First, he argues that USCIS ignored that it “is rare for private club table tennis coaches in the U.S. to receive a base salary.” ECF 19 at 11-12. This argument confuses rarity with quantity. Even if having a base salary is rare, it does not yield a salary that is higher than others in his field. Plaintiff's first challenge therefore does not undermine USCIS's decision that he failed to meet the Ninth Criterion.
Second, plaintiff contends USCIS ignored his argument that while an hourly rate is the most direct comparison between table tennis coaches' salaries, it is not the only factor to be considered. ECF 19 at 11-13. He further argues that USCIS “erroneously conclud[ed] that plaintiff must choose only one compensation type to demonstrate his earnings are significantly higher than that of others.” ECF 19 at 13. The Court should find USCIS considered all the evidence, and rationally concluded plaintiff failed to meet his burden to demonstrate that his 12 salary is higher than others in his field. According to the record, most tennis table coaches only receive an hourly wage so USCIS reasonably used this most direct comparison of one hourly wage versus another as one way to evaluate plaintiff's salary. C.A.R. 055; ECF 19 at 11. For example, USCIS compared “Coach Lillieroo's hourly rate of $60 with plaintiff's hourly rate, ” even though “Coach Lillieroo's 2019 annual income of $25, 375 is substantially lower than plaintiff's annual income of $56, 150.” ECF 19 at 12. Indeed, USCIS also considered the evidence of annual salaries in the record. It reasonably found plaintiff's salary to be slightly above average by comparing the ZipRecruiter chart for “Table Tennis Coach” reflecting “that the average annual salary is $50, 387, ” with plaintiff's annual salary. See C.A.R. 179. Ultimately, though there is evidence in the record to show plaintiff's salary is above average, it was not an abuse of discretion, arbitrary, or capricious for USCIS to conclude plaintiff's salary-whether hourly or annual-did not rise to the level of “substantially higher” than other coaches in the United States.
Plaintiff proposes hybrid approaches to calculate his salary because he receives an hourly wage on top of his base salary. Failure to adopt plaintiff's creative proposals does not render USCIS's denial arbitrary, capricious, or an abuse of discretion. See Jewell, 747 F.3d at 601.
Third, plaintiff argues that USCIS erred by ignoring the ZipRecruiter and U.S. News & World Report evidence of “Sports Coach Salar[ies].” Inherent in plaintiff's burden “to provide appropriate evidence” of a higher salary is the need to explain how the information he supplies provides a relevant, appropriate, and fair comparison. For one thing, since the 2019 U.S. News report is not a part of the record, it cannot be considered. 5 U.S.C. § 706(2). Further, plaintiff does not sufficiently explain why the salaries these reports reflect create an apples to apples, rather than apples to oranges comparison: USCIS notes that these reports may include coaches at educational institutions and coaches in other sports, both inapt comparisons for plaintiff. 13 Ultimately, USCIS considered this evidence, and rationally found it did not suffice for plaintiff to carry his burden to show a significantly higher salary than others in his field. Because plaintiff failed to submit evidence demonstrating that he is compensated at a level that places him at the top of the field of salaries for tennis table coaches, USCIS did not abuse its discretion in finding that he failed to satisfy this criterion, and the Court should grant defendants' cross motion for summary judgment on this basis as well.
II. Defendants' Step Two Decision Was Reasonable
Despite concluding that plaintiff had not demonstrated that he met at least three of the ten regulatory criteria in Step One, as an alternative ground, USCIS made a final merits determination as to whether plaintiff demonstrated that he possessed the high level of expertise required for the extraordinary ability immigrant classification. See Bodhankar, 2020 WL 777211 at *4. To do so, plaintiff must establish that he is (1) one of a small percentage who has risen to the top of his field, and (2) he has enjoyed sustained national or international acclaim. Noroozi, 95 F.Supp.2d at 545. After reviewing the record evidence, USCIS determined that plaintiff had not met his burden. C.A.R. 015-017.
Instead, plaintiff argues, as he did before the agency, that USCIS failed to consider all of the evidence. The record suggests otherwise. See C.A.R. 015 (“a review of the totality of the record does not demonstrate . . .”), 017 (“After a careful review and analysis of all evidence in the record . . .”). USCIS considered the letters plaintiff provided, which demonstrated that he “is a skilled and experienced table tennis coach, ” but was often only one of several coaches for any particular athlete and he “did not document his specific coaching role versus the roles of other coaches of these athletes or demonstrate how his work with these athletes has reflected acclaim for him.” C.A.R. 015. USCIS also considered other evidence-like plaintiff's time coaching at 14 the Olympic Training Center and offer to be a spokesperson for Nittaku-and found it lacked adequate information about the duration and scope of these activities to meet the high standard of being at the top of one's field. C.A.R. 015-016. Under the APA, the Court reviews the agency's decision under the narrow arbitrary and capricious standard and does not substitute its judgment for that of the agency. See Motor Vehicle, 463 U.S. at 43, 103. USCIS's final decision shows that the agency considered plaintiff's evidence and provided a reasoned discussion why his evidence was deficient. Although plaintiff disagrees with how USCIS weighed the evidence, that is not a proper basis for this Court setting aside the agency's decision. See Nat'l Ass'n of Home Builders, 340 F.3d at 841. The Court should therefore find that USCIS rationally concluded plaintiff's application failed at Step Two, and grant defendants' cross motion for summary judgment.
CONCLUSION
For the foregoing reasons, the Court should deny plaintiff's motion for summary judgment (ECF 19), grant defendants' cross motions for summary judgment (ECF 21) and judgment should be entered dismissing this case.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a 15 waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation. 16