Steven Burr v. Frank Chavez ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 30 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DONGSHENG HUANG, No. 12-17605
Plaintiff - Appellant, D.C. No. 5:12-cv-00785-PSG
v.
MEMORANDUM*
ULTIMO SOFTWARE SOLUTIONS,
INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding
Submitted May 13, 2014**
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Dongsheng Huang appeals pro se from the district court’s order dismissing
his action seeking enforcement of an order of the United States Department of
Labor. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009), and we affirm.
The district court properly dismissed Huang’s action because Huang failed
to allege facts showing that Ultimo Software Solutions, Inc. is a federal agency
subject to review under the Administrative Procedures Act (“APA”). See 5 U.S.C.
§ 551(1) (defining an “agency” as “each authority of the Government of the United
States”). Moreover, Huang failed to show that he had exhausted administrative
remedies before bringing his action. See 5 U.S.C. § 704 (under the APA, agency
action is subject to judicial review only when it is made reviewable by statute or a
final agency order has issued); Buckingham v. Sec’y of U.S. Dep’t of Agric., 603
F.3d 1073, 1080 (9th Cir. 2010) (“The APA requires plaintiffs to exhaust their
administrative remedies before bringing suit in federal court.”).
The district court did not abuse its discretion by dismissing without leave to
amend because amendment would have been futile. See Hartmann v. Cal. Dep’t of
Corr. & Rehab., 707 F.3d 1114, 1129-30 (9th Cir. 2013) (setting forth standard of
review and explaining that leave to amend may be denied if amendment would be
futile).
The district court did not abuse its discretion by denying Huang’s motion
for reconsideration because Huang failed to establish grounds for such relief. See
Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
2 12-17605
(9th Cir. 1993) (setting forth standard of review and grounds for reconsideration).
Contrary to Ultimo Software Solutions, Inc.’s contention, Huang’s appeal of
the district court’s dismissal order was timely. See Fed. R. App. P. 4(a)(7)(A)(ii);
Stephanie-Cardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703
(9th Cir. 2007) (“[I]f the district court does not set forth the judgment on a separate
document, an appealable final order is considered entered when 150 days have run
from the time the final order is docketed.”).
AFFIRMED.
3 12-17605