Raduga Usa Corp. v. U.S. Dept. of State

• Decision Date: 23 May 2005
• Docket Number: No. 04 CV 996 BTM(BLM).,04 CV 996 BTM(BLM).
• Citation: 440 F.Supp.2d 1140
• Parties: RADUGA USA CORP., Nikolai Romanayskiy, and Vladlena Yakovleva, Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, Colin Powell, Secretary of State, Maura Harty, Assistant Secretary for Consular Affairs, Catherine Barry, Director of Visa Department, United States Embassy in Moscow, Alexander Vershbow, United States Ambassador, James Pettit, Consul General for U.S. Embassy in Moscow, Constance Anderson, Immigrant Visa Unit Chief for U.S. Embassy in Moscow, Tom Ridge, Secretary Department of Homeland Security, Eduardo Aguirre, Jr., Director of U.S. Citizenship and Immigration Services, Defendants.
• Court: U.S. District Court — Southern District of California

440 F.Supp.2d 1140

RADUGA USA CORP., Nikolai Romanayskiy, and Vladlena Yakovleva, Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, Colin Powell, Secretary of State, Maura Harty, Assistant Secretary for Consular Affairs, Catherine Barry, Director of Visa Department, United States Embassy in Moscow, Alexander Vershbow, United States Ambassador, James Pettit, Consul General for U.S. Embassy in Moscow, Constance Anderson, Immigrant Visa Unit Chief for U.S. Embassy in Moscow, Tom Ridge, Secretary Department of Homeland Security, Eduardo Aguirre, Jr., Director of U.S. Citizenship and Immigration Services, Defendants.

No. 04 CV 996 BTM(BLM).

United States District Court, S.D. California.

May 23, 2005.

Order Granting Motion to Supplement Complaint and Vacating Judgment March 3, 2006.

COPYRIGHT MATERIAL OMITTED

Kenneth White, White and Associates, Tifany E. Markee, Milner and Markee, San Diego, CA, for Plaintiffs.

Samuel W. Bett, US Attorney's Office, San Diego, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT; ISSUING WRIT OF MANDAMUS AGAINST THE UNITED STATES CONSULATE

MOSKOWITZ, District Judge.

On May 14, 2004, Plaintiffs filed a complaint for declaratory and injunctive relief and a writ in the nature of mandamus. Plaintiffs allege that Defendants have unlawfully withheld and unreasonably delayed Plaintiffs Romanayskiy and Yakoveleva's visa applications. Pursuant to the Court's scheduling order, the parties filed cross motions for summary judgment. In its moving papers, the government claimed that the United States consul was imminently processing Plaintiffs' visa applications. At oral argument, the government confirmed that the United States consul would soon render a decision on Plaintiffs' pending visa applications. In response, the Court set the matter for status hearing on February 25, 2005. At the hearing, the government informed the Court that the consul had not yet made any decision granting or denying Plaintiffs' visa applications. The case was then submitted. To date, no consular official has not rendered a decision on Plaintiffs' visa applications which have been pending now for over four years.

I. BACKGROUND

On August 10, 2000, Plaintiff Raduga USA Corp. ("Raduga USA") submitted an I-140 Immigration Petition for Alien Worker on behalf of Raduga USA's president and sole shareholder, Mr. Romanayskiy (and Ms. Yakovleva as his dependent). On November 30, 2000, the California Service Center of the Immigration and Naturalization Service (now known as U.S. Citizenship and Immigration Service) approved the petition and forwarded it for processing.

On April 8, 2001, Mr. Romanayskiy and Ms. Yakovleva applied for immigrant visas pursuant to the approved I-140 petition at the United States Embassy in Moscow, paid the appropriate application fees, and submitted the required medical exam forms and police certificates. Plaintiffs were then interviewed by a consular official who did not render a final decision on their visa applications. Nearly two years later, the consular scheduled a second interview with Plaintiffs for February 4, 2003 regarding their initial visa applications. In preparation for the second interview, Plaintiffs underwent renewed medical exams; gathered new certificates, and paid new application fees. Plaintiffs were interview by the chief of the immigration unit, Julie Furuta-Toy. However, Ms. Furuta-Toy did not render a final decision on Plaintiffs' applications after the second interview.

Around December 30, 2003, a consular official requested new medical examinations and police certificates from Plaintiffs. For the third time, Plaintiffs underwent medical exams, collected the required certificates, and submitted them to the consul. The Embassy confirmed receipt on January 21, 2004. On February 5, 2004, the consul informed Plaintiffs that they would be required to attend a third interview. However, it is unclear whether this third interview ever took place. Plaintiffs' counsel contacted the Embassy and United States Department of State numerous times regarding a final decision on Plaintiffs' visa applications.

II. DISCUSSION

Plaintiffs contend that Defendant's have violated the Administrative Procedures Act ("APA") by failing to process and issue a final decision on Plaintiffs' visa applications which have been pending now for approximately four years. Plaintiffs seek to compel Defendants, through a writ of mandamus, to either grant or deny Plaintiffs pending visa applications. Defendants contend that Plaintiff Raduga USA lacks standing, that venue is improper and that this case should be dismissed pursuant to the doctrine of consular non-reviewability. The Court disagrees. For the reasons expressed below, the Court hereby GRANTS in part Plaintiffs' summary judgment motion and issues a writ of mandamus directing the United States consul to render a final decision on Plaintiffs' visa applications.

A. STANDING

"Standing involves both constitutional requirements and prudential limitations." United States v. Mindel, 80 F.3d 394, 396 (9th Cir.1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Article III dictates the constitutional requirements of standing. Id. The prudential limitations are rules of self-governance derived from the Supreme Court's requirement that Congress make its intention clear before the Court will construe a statute to confer standing on a plaintiff. Id.; Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir.2004).

1. CONSTITUTIONAL REQUIREMENTS

Constitutional standing contains three elements: (1) plaintiff must have suffered an injury in fact; (2) the injury must be fairly traceable to the challenged action by the defendant; and (3) it must be likely that the injury will be redressed by a favorable court decision. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130(citations omitted). The party invoking federal jurisdiction bears the burden of establishing these elements. Id. at 561, 112 S.Ct. 2130 (citations omitted). "Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case. each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof...." Lujan, 504 U.S. at 561, 112 S.Ct. 2130.

a. INJURY IN FACT

It is well settled that an injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized... and (b) actual or imminent, not conjectural or hypothetical ...." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citations and internal quotation marks omitted). Defendant contends that Plaintiff Raduga USA lacks standing because it has no cognizable injury in fact. The Court disagrees.

Plaintiff Raduga USA submits, by way of affidavit, that consulate inactivity has resulted in lost sales in the past and will cause further losses and stagnation in the future, including postponement of business plans. See Black Faculty Ass'n of Mesa College v. San Diego Community College Dist., 664 F.2d 1153, 1155 (9th Cir.1981) (the plaintiff must "show a direct, individualized injury") (citation omitted). More specifically, Operating Manager and Vice President Simon itsygin avers that without the assistance of Plaintiff Romanovskiv, Raduga USA has lost $2 million in sales over the past three years. (Itsygin Decl. ¶ 7.) See Sec'y of Labor v. Farino, 490 F.2d 885, 889 (7th Cir.1973) ("It is clear that [plaintiff-employers] have adequately alleged that they will be economically injured if not permitted to employ these aliens."); Encuentro Del Canto Popular v. Christopher, 930 F.Supp. 1360, 1370 (N.D.Cal.1996) (recognizing that "[t]he harm which confers standing upon [the plaintiff-organizations] is the denial of the opportunity to associate with the excluded members," but denying mandamus relief on other grounds). Mr. Itsygin further declares that, due to uncertainty in Plaintiff Romanoskiy's status, Raduga USA has not been able to establish long-term contracts, open a San Diego retail outlet, or begin its laser and optical products project. (Itsygin Decl. ¶¶ 6, 8-9.) See Ass'n of Data Processing v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (finding "future, loss of profits" satisfied injury in fact requirement in an APA mandamus action). Thus, Raduga USA has clearly established a concrete, cognizable injury in fact. Cf. Soltane v. United States Dep't of Justice, 381 F.3d 143, 145 (3d Cir.2004) (implicitly recognizing standing of plaintiff-organization, on behalf of alien employee, in action seeking review of visa denial); cf. Sierra Club, 405 U.S. 727, 733-34, 92 S.Ct. 1361, 31 L.Ed.2d 636 ("[P]alpable economic injuries have long been recognized as sufficient to lay the basis for standing, with or without a specific statutory provision for judicial review.").

b. FAIRLY TRACEABLE

Article III "requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). "[T]his requirement is only implicated where the concern is that an injury caused by a third party is too tenuously connected to the acts of the defendant." Citizens for Better Forestry v. United States Dep't of Agric., 341 F.3d 961, 975 (9th Cir.2003) (citing Idaho Conservation League v. Mumma, 956 F.2d 1508, 1518 (9th Cir. 1992)). Here, Plaintiffs contend that the consulate has unreasonably failed to process Mr. Romanayskiy's and Ms. Yakovleva's visa applications which have been pending now for four years. However, Plaintiffs purport to seek a writ of mandamus against all Defendants, not only the consular officers. Plaintiffs' request is overbroad.

"[I]t is uncontested that only the State Department...