Cassell Creations LLC et al v. United States Citizenship and Immigration Services et al

Filing 28

(IN CHAMBERS) ORDER TO SHOW CAUSE by Judge Fernando M. Olguin. Response to Order to Show Cause due by 7/17/2017. (vdr)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 17-4145 FMO (PLAx) Title Cassell Creations, LLC et. al., v. USCIS, et. al. Present: The Honorable Date July 3, 2017 Fernando M. Olguin, United States District Judge Vanessa Figueroa None Deputy Clerk Court Reporter / Recorder Tape No. Attorney Present for Plaintiff(s): Attorney Present for Defendant(s): None Present None Present Proceedings: (In Chambers) Order to Show Cause Re: Dismissal for Lack of Jurisdiction On June 2, 2017, Cassell Creations, LLC, dba Fine Arts Sculpture Center, Inc., Oleg Kedria, Zhanna Kedria, and Mikhael Kedria (“plaintiffs”) filed a complaint against the United States Citizenship and Immigration Services (“USCIS”) and the director of its California Service Center, Kathy A. Baran (“Baran”) (collectively, “defendants”). (See Dkt. 1, Complaint at ¶¶ 3, 4, 6, 8-10). Plaintiffs allege that defendants’ denial of plaintiffs’ “applications to extend their nonimmigrant O-1 (alien of extraordinary ability) and O-3 (dependents of O-1 nonimmigrant)” visas constituted a “conclusory and unsubstantiated decision” and seek judicial review of the denial under the Administrative Procedure Act. (See id. at ¶ 1). Plaintiffs claim this action arises under the Immigration and Nationality Act, 8 U.S.C. § 1101, et. seq., and the Administrative Procedure Act, 5 U.S.C. § 701, et. seq., which are “both laws of the United States,” thus conferring original jurisdiction to the court pursuant to 28 U.S.C. § 1331. (See id. at ¶ 10). Having reviewed the Complaint, however, the court questions whether jurisdiction is proper. While “[a]s a general matter, district courts are empowered to review agency action by the Administrative Procedure Act [], and have federal question jurisdiction over such claims pursuant to 28 U.S.C. § 1331[] . . . there must be final agency action for which there is no other adequate remedy in a court.” Mamigonian v. Biggs, 710 F.3d 936, 941 (9th Cir. 2013) (quoting 5 U.S.C. § 704) (emphasis in original; internal citation and quotation marks omitted). “Two conditions must be satisfied for agency action to be final for purposes of the APA: First, the action must mark the consummation of the agency's decisionmaking process – it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights and obligations have been determined, or from which legal consequences will flow.” Id. at 942 (quoting Bennett v. Spear, 520 U.S. 154, 177–78, 117 S.Ct. 1154, 1168 (1997); internal quotation marks omitted). Here, the Complaint contains no statements or allegations regarding whether defendants’ denial to extend the Kedrias’ nonimmigrant visas is a final agency decision. (See, generally, Dkt. 1, Complaint). Based on the foregoing, IT IS ORDERED THAT no later than July 17, 2017, plaintiffs shall CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 2 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV 17-4145 FMO (PLAx) Date Title Cassell Creations, LLC et. al., v. USCIS, et. al. July 3, 2017 file a First Amended Complaint establishing that the denial of the subject nonimmigrant visas is a final agency decision within the meaning of the APA. Alternatively, plaintiffs may stand on their Complaint and file a written Response to this Order to Show Cause, not to exceed five (5) pages, that discusses why this action should not be dismissed for lack of subject matter jurisdiction. Plaintiffs are cautioned that failure to file a First Amended Complaint or otherwise respond may result in this action being dismissed without prejudice for failure to prosecute and/or failure to comply with a court order. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962); Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). 00 Initials of Preparer CV-90 (06/04) CIVIL MINUTES - GENERAL : 00 vdr Page 2 of 2

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