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TRANSPORT ROBERT LTEE v. U.S. INS

September 25, 1996

TRANSPORT ROBERT (1973) LTEE, Plaintiff,
v.
U.S. IMMIGRATION AND NATURALIZATION SERVICE, Defendant.



The opinion of the court was delivered by: SPORKIN

 This matter comes before the Court on Plaintiff's motion for summary judgment and Defendant's cross-motion for dismissal or, in the alternative, summary judgment. The Court heard arguments on the motions on September 19, 1996. After considering the motions, all opposition thereto, and the arguments by the parties, the Court remands this matter to Defendant for further action.

 BACKGROUND

 Plaintiff is a Canadian trucking company. Its Canadian drivers may enter the U.S. under the Immigration & Naturalization Act (the "Act") to work temporarily as drivers so long as they are engaged in a continuation of international transportation rather than "purely domestic service or solicitation, in competition with United States operators." 8 U.S.C. § 1101(a)(15)(B).

 Since 1993, Plaintiff has been operating a warehouse in Taylor, Michigan from which it delivers shipments of paper under a contract with Domtar Incorporated, a Canadian paper manufacturer. Plaintiff fills customer orders in Taylor sometime after paper shipped from various locations in Canada arrives at that site.

 On July 21, 1995, Plaintiff sought advice regarding the propriety of using Canadian truck drivers to deliver paper from the Michigan warehouse to other points within the United States, writing to the Associate Commissioner of the Immigration and Naturalization Service ("INS"), Louis D. Crocetti, Jr. On October 25, 1995, Yvonne M. LaFleur, Chief of Nonimmigrant Branch Adjudications, responded to Plaintiff's inquiry with a letter explaining that Plaintiff's Canadian truck drivers could not perform point-to-point delivery service within the United States as "B-1 business visitors" pursuant to the Act (the "LaFleur Letter"). *fn1" The LaFleur Letter concluded that:

 
the Canadian driver is not performing international transport, even though the goods themselves may have originated in Canada. Regardless of the origin of the goods, the driver is not transporting that load either into or out of the country, but transporting the load from one point in the United States to another point in the United States. In effect, the Canadian driver is both loading and unloading goods within the United States, which constitutes cabotage or point-to-point hauling within the United States. In addition, the interchange of trailers in this situation constitutes a break in the continuous international movement of goods such that the portion of the transport within the United States is interposed as a domestic movement of goods, or cabotage.

 In lieu of an answer, Defendant opposed plaintiff's motion for summary judgment and filed its own motion to dismiss, the latter motion argued on the grounds that the matter does not currently present the Court with any "final agency action" to review pursuant to the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 551, et. seq. In the alternative, Defendant filed a cross-motion for summary judgment on the grounds that Plaintiff has not established that INS' actions were arbitrary and capricious.

 ANALYSIS

 While this Court takes no position on the merits of Plaintiff's claim, it concludes that it would not be prudent to decide the case on a substantive basis because the LaFleur Letter does not constitute "final agency action" at this time. As a first step toward resolving this matter, this Court remands this matter to Defendant for further action. This Court does not now reach the issue of whether Defendant's actions were "arbitrary or capricious."

 This Court can only review the actions of an agency if authorized by statute. Bell v. New Jersey, 461 U.S. 773, 777, 76 L. Ed. 2d 312, 103 S. Ct. 2187. In order to review INS' interpretation of the Act with respect to "B-1 business visitors," the Court must base its jurisdiction on the APA. The APA permits federal district courts to review "final agency action" for which there is no other adequate remedy in a court. 5 U.S.C. § 704. The requirement of "final agency action" recognizes that courts must not interfere with the executive function, whether exercised by executive officials or administrative agencies, by entertaining a lawsuit that challenges an action that is not final. National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689, 698 (D.C. Cir., 1971) ("NALCC"). *fn2" The finality requirement is similar to the requirement of ripeness, although "furthering slightly different interests." 740 F.2d 21, 30.

 The ripeness doctrine requires courts to consider two factors, "the fitness of the issue for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967); Friends of Keeseville, Inc. v. FERC, 859 F.2d 230, 234-35 (D.C. Cir., 1988). The degree of finality of agency action is the key consideration in evaluating its "fitness for judicial review" under the ripeness doctrine. Ciba-Geigy v. EPA, 255 U.S. App. D.C. 216, 801 F.2d 430, 435-36 (D.C. Cir., 1986); Midwestern Gas Transmission Corp. v. FERC, 191 U.S. App. D.C. 80, 589 F.2d 603, 618 (D.C. Cir., 1978). Hardship considerations "will rarely overcome the finality and fitness problems inherent in attempts to review tentative positions" of agencies. Public Citizens, 740 F.2d at 31.

 In NALCC, this circuit set the parameters for deciding when a letter produced by an agency in response to an inquiry can qualify as "final agency action." In that case, an attorney for NALCC sent a letter to the Administrator of the Wage and Hour Division of the Department of Labor inquiring about the effect of recently passed amendments to the Fair Labor Standards Act on the status of employees of coin-operated laundries. The Administrator replied by letter that the legislative history of the amendments clearly indicated that the employees of coin-operated laundries were covered by the amendments' ...


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