FA.LU. CIOLI, LLC v. ZUCHOWSKI et al

Filing 48

OPINION fld. Signed by Judge Stanley R. Chesler on 6/16/16. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
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FA.LU. CIOLI, LLC,
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Plaintiff,
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Civil Action No. 15-1310 (SRC)
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v.
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OPINION
LAURA ZUCHOWSKI et al.,
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Defendants.
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____________________________________:
CHESLER, U.S.D.J.
This matter comes before the Court on the motion to dismiss for lack of subject matter
jurisdiction or, in the alternative, for summary judgment by Defendants Eric Holder, Jeh Johnson,
Leon Rodriguez, and Laura Zuchowski (collectively, the “Government.”). Plaintiff Fa.Lu. Cioli,
LLC (“Cioli”) has opposed the motion. For the reasons stated below, the motion to dismiss for
lack of subject matter jurisdiction will be granted.
Defendants first move to dismiss the Complaint for lack of subject matter jurisdiction,
pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendants contend that this Court lacks
subject matter jurisdiction because the Complaint does not seek review of a final agency action, as
required by the Administrative Procedure Act (“APA”):
Agency action made reviewable by statute and final agency action for which there
is no other adequate remedy in a court are subject to judicial review. A preliminary,
procedural, or intermediate agency action or ruling not directly reviewable is
subject to review on the review of the final agency action.
5 U.S.C. § 704. The Complaint seeks review of a decision issued by USCIS on February 3, 2015.
(Compl. ¶ 28.) The Government states that USCIS re-opened the underlying visa petition on April

20, 2015, and issued a final decision on July 28, 2015. The Government notes that, on November
5, 2015, this Court granted Plaintiff leave to file an amended complaint, but Plaintiff has not done
so to date. As a result, the Government argues, this Court lacks subject matter jurisdiction to
review the decision challenged in the Complaint.
In opposition, Plaintiff argues that the motion is untimely and that a motion to dismiss for
lack of subject matter jurisdiction must be made before filing an answer, pursuant to Rule 12(b).
Plaintiff is incorrect. The Supreme Court has held:
[S]ubject-matter jurisdiction, because it involves a court’s power to hear a case, can
never be forfeited or waived. Moreover, courts, including this Court, have an
independent obligation to determine whether subject-matter jurisdiction exists, even
in the absence of a challenge from any party.
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citation omitted). This Court not only may,
but must determine whether it has subject matter jurisdiction over a case at every point.
Plaintiff next argues that Defendants are estopped from asserting lack of subject matter
jurisdiction. Although Plaintiff fails to cite any legal authority in support or even an explanation
for this position, this Court must reject it because it is untenable under Arbaugh: subject matter
jurisdiction cannot ever be forfeited.
Plaintiff does not contest the Government’s assertion that the Complaint, which has not
been amended, challenges a decision which is not a final agency decision. The Court thus lacks
subject matter jurisdiction to hear this case. Furthermore, because Plaintiff has been given the
opportunity to amend the Complaint, and has failed to do so, this Court concludes that amendment

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of the Complaint would be futile, and the Complaint will be dismissed with prejudice.

s/ Stanley R. Chesler
Stanley R. Chesler, U.S.D.J.
Dated: June 16, 2016

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