this Court to evaluate the fitness of issues for judicial review and the hardship to the parties from withholding reviewing. Public Citizen Health Research v. Commissioner, Food & Drug Administrative, 238 U.S.App. D.C. 271, 740 F.2d 21, 30 (D.C.Cir.1984). The "[Administrative Procedure Act]'s requirement that agency action be 'final' before a court reviews the substance of that action, 5 U.S.C. § 704, similarly serves to prevent premature judicial review of administrative action." Id.5
The defendants contend that plaintiffs' complaint is similar to the complaint in Shipbuilders Council of America v. United States, 276 U.S. App. D.C. 123, 868 F.2d 452 (D.C.Cir.1989) (" Shipbuilders "). In Shipbuilders, this Circuit concluded that "appellees' plea is, essentially, a request for judicial advice - a declaration that a line of agency rulings should henceforth have no precedential effect"; accordingly, should be dismissed for want of a judicially-cognizable controversy. Id. at 456. Although there are some factual differences between Shipbuilders and the instant complaint, the Court agrees with the defendants that Shipbuilders does provide guidance in this case.
In Shipbuilders, the United States Customs Service ("Customs") received an inquiry from a company as to whether the company's projected dry-docking operation violates the Jones Act. Id. at 454. The Customs responded by telex that the proposed dry-docking operations would not violate the Jones Act. Id. Plaintiffs, Shipbuilders Council of America, sought a declaratory judgment that the proposed dry-docking operation was in violation of the Jones Act and an order directing the defendants to issue no similar ruling in the future. Id.
Plaintiffs in this case, likewise, seek a ruling that an agency interpretation based on proposed actions is in violation of federal law. Additionally, plaintiffs here contend that past interpretation is also in violation in the Anti-Reflagging Act. However, plaintiffs do not point to any particular past licensing that would allow the Court to determine the timeliness of the appeal or whether the administrative remedies have been exhausted.
The June 13, 1989 letter, like the telex in Shipbuilders, is not final agency action.
This Court must conclude that the complaint is not an appeal of final agency action; accordingly, the complaint is nonjusticiable.
For the reasons discussed above, the Court concludes that the complaint fails to state a justiciable case and defendants' motion to dismiss should be granted. An appropriate Order accompanies this Memorandum.
Date April 30, 1990
For the reasons discussed in the accompanying Memorandum, the Court concludes that defendants' motion to dismiss should be granted and plaintiffs' motion for summary judgment should be denied.
It is hereby
ORDERED that defendants' motion to dismiss is granted, it is further
ORDERED that plaintiffs' motion for summary judgment is denied, it is further
ORDERED that this case is dismissed without prejudice.
Date April 30, 1990