6801 Realty Co. v. U.S. Citizenship & Immig. Servs.

17-256-cv 6801 Realty Co. v. U.S. Citizenship & Immig. Servs. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 3 York, on the 2nd day of January, two thousand eighteen. 4 5 PRESENT: BARRINGTON D. PARKER, 6 GERARD E. LYNCH, 7 CHRISTOPHER F. DRONEY, 8 Circuit Judges. 9 _____________________________________ 10 11 6801 REALTY CO., LLC, 12 13 Plaintiff-Appellant, 14 15 v. 17-256-cv 16 17 UNITED STATES CITIZENSHIP AND IMMIGRATION 18 SERVICES, L. FRANCIS CISSNA, LAURA ZUCHOWSKI, 19 UNITED STATES DEPARTMENT OF HOMELAND SECURITY, 20 KIRSTJEN NIELSEN, JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 23 Defendants-Appellees.* 24 _____________________________________ 25 * The Clerk of Court is directed to amend the caption as set forth above. 1 1 2 FOR PLAINTIFF -APPELLANT: Spencer Sheehan, Sheehan & Associates, P.C., 3 Great Neck, NY. 4 5 FOR DEFENDANTS -APPELLEES: Varuni Nelson, Layaliza Soloveichik, Assistant 6 United States Attorneys, for Bridget M. Rohde, 7 Acting United States Attorney for the Eastern 8 District of New York, Brooklyn, NY. 9 10 Appeal from a November 30, 2016, judgment of the United States District Court for 11 the Eastern District of New York (Donnelly, J.). 12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 13 AND DECREED that the judgment of the district court is AFFIRMED. 14 Plaintiff-Appellant 6801 Realty Co., LLC (“6801 Realty”) sued, inter alia, the 15 United States Citizenship and Immigration Services (“USCIS”) under the Administrative 16 Procedure Act (“APA”), challenging USCIS’s denial of an H-1B visa. After 6801 Realty 17 filed its complaint, USCIS sua sponte reopened the application and requested additional 18 evidence. The district court granted summary judgment sua sponte to the 19 Defendants-Appellees, concluding that USCIS’s decision to reopen 6801 Realty’s visa 20 application rendered the agency’s decision non-final and unreviewable under the APA.1 1 Prior to granting summary judgment, the district court denied Defendants’ motion to dismiss for lack of subject-matter jurisdiction, concluding that the APA’s requirement of “final agency action” is not jurisdictional. As we have previously observed, whether the APA’s “final agency action” requirement, 5 U.S.C. § 704, is jurisdictional is an open question in our Circuit. See Sharkey v. Quarantillo, 541 F.3d 75, 8788 (2d Cir. 2008). We need not decide that complex question here, which the parties have not briefed, ...

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