United States District Court, D. New Jersey
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 and decides the motion without oral
argument. See L. Civ. R. 78.1(b). For the following
reasons, the Court GRANTS the motion.
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”)],
” which, they claim, “misconstru[es]
and appl[ies] . . . INA § 212(a)(9)(B)(i)(II),  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).
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
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.
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. 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.
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”)). 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)).
the proposition that the rule itself is a
“final agency action” (see Am. Compl.
¶ 14) is legally unfounded. 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).
the Court lacks subject-matter jurisdiction and must dismiss