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Matulewski v. Pompeo

United States District Court, D. New Jersey

July 24, 2019

LEONARD MATULEWSKI, et al., Plaintiffs,
v.
MIKE POMPEO, et al., Defendants.

         Not for Publication

          OPINION

          Esther Salas, U.S.D.J.

         Before the Court is defendant Secretary of State Mike Pompeo et al.'s (“Defendants'”) motion to dismiss. (D.E. No. 26). The Court has considered the submissions of the parties[1] and decides the motion without oral argument. See L. Civ. R. 78.1(b). For the following reasons, the Court GRANTS the motion.

         I. Background

         The plaintiffs are six individuals who are United States citizens and who bring a putative class action complaint on behalf of themselves, their non-citizen family relatives, and “all others who are similarly situated.” (Am. Compl. ¶¶ 1-6 & 40). In essence, the Amended Complaint “challenges Defendants' rule . . . on unlawful presence departure” under “the Due Process Clause of the Fifth Amendment to the United States Constitution and the Administrative Procedure Act (‘APA'), 5 U.S.C. § 706.” (Id. at 2). More specifically, “Plaintiffs challenge the rule set forth in [9 FAM 302.11-2 (“the rule”)], ”[2] which, they claim, “misconstru[es] and appl[ies] . . . INA § 212(a)(9)(B)(i)(II), [3] to any and all departures made by aliens unlawfully in the United States.” (Id. ¶ 14). Hence the rule, Plaintiffs conclude, “incorrectly fails to exempt departures pursuant to removal proceeding orders;” “violates the statute[']s clear meaning;” and is ultra vires. (See Id. ¶ 15-16 & 37). Plaintiffs assert that the rule itself is a “final agency action” and thus “is reviewable.” (See Id. ¶ 14).

         With respect to purported injuries, Plaintiffs apparently allege that the consequences of their own anticipated litigation strategies would be “unnecessary” or “expensive.” (See, e.g., id. ¶ 25). Plaintiffs also claim that Defendants' anticipated enforcement of the rule would “deprive[] them of an ‘opportunity' for an ‘immediate relative' permanent residence benefit or relief” or “will cause them to be . . . separated from their families for ten years.” (Id. ¶¶ 26 & 28).[4]

         Defendants, in response, submit that the Amended Complaint should be dismissed for lack of subject-matter jurisdiction. (See, e.g., Def. Mov. Br. at 12). Among other arguments, Defendants contend that the rule itself is not a “final agency action” and “because there is no final agency decision by a consular officer on Plaintiffs' hypothetical visa application[s], the Court lacks subject matter jurisdiction under the APA.” (Id. at 13). The Court agrees.

         II. Analysis

         The APA provides that “[a] person suffering legal wrong because of agency action . . . is entitled to judicial review thereof.” 5 U.S.C. § 702; see also 28 U.S.C. 1331.[5] But, as relevant here, only “final agency action . . . [is] subject to judicial review.” See 5 U.S.C. § 704 (emphasis added). In other words, “[t]o support APA jurisdiction, the [relevant] agency action must be final, it must adversely affect the party seeking review, and it must be non-discretionary.” Pinho v. Gonzales, 432 F.3d 193, 200 (3d Cir. 2005). Here, however, Plaintiffs have not identified any final agency action.

         “[T]wo conditions must be satisfied for agency action to be ‘final:' First, the action must mark the ‘consummation' of the agency's decisionmaking process . . . . And second, the action must be one by which ‘rights or obligations have been determined,' or from which ‘legal consequences will flow.'” Bennett v. Spear, 520 U.S. 154, 177-78 (1997). The Amended Complaint fails to identify any “decisionmaking process” that Defendants have even begun. See id.; Pinho, 432 F.3d at 200 (“Finality requires exhaustion of administrative remedies.” (emphasis added)). The Amended Complaint does not allege that Defendants have even considered whether to apply the rule to Plaintiffs-let alone that Defendants have determined “the rights or obligations” of Plaintiffs under the rule. See id.; (see, e.g., Am. Compl. ¶ 25 (predicting what “will be” the case “because of these State Department rules” (emphasis added)); Pl. Opp. Br. at 13 (conceding that Plaintiffs do “not seek review of any consular decision”)).[6] In Naik v. Renaud, for instance, the court ruled that rights and obligations concerning a plaintiff's I-130 petition “ha[d] not been determined” because the government defendants could still have granted or denied the plaintiff's petition. 947 F.Supp.2d 464, 471 (D.N.J. 2013). For several reasons, the same is true here. See, e.g., 8 U.S.C. § 1182(a)(9)(B)(v) (recognizing the Attorney General's “discretion to waive” the application of 8 U.S.C. § 1182(a)(9)(B)(i)).

         Furthermore, the proposition that the rule itself is a “final agency action” (see Am. Compl. ¶ 14) is legally unfounded.[7] Other than to conflate “final agency action” with “ripeness” (see, e.g., Pl. Opp. Br. at 3-4), Plaintiffs make no legal argument in support of that proposition; and significant legal authority undermines it. For instance, “agency manuals . . . lack the force of law, ” Wos v. E.M.A. ex rel. Johnson, 568 U.S. 627, 643 (2013), and “whether the [rule] has the status of law” is a principal factor in determining whether an agency action is final, see Ocean Cty. Landfill Corp. v. U.S. E.P.A., Region II, 631 F.3d 652, 655 (3d Cir. 2011). The Court cannot discern how any factor used to determine whether an agency action is final would support Plaintiff's conclusion that the rule itself is a final agency action. See, e.g., id. (identifying, e.g., “whether immediate judicial review would speed enforcement” as another principal factor).

         III. Conclusion

         Accordingly, the Court lacks subject-matter jurisdiction and must dismiss ...


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