The plaintiff, the Texas Border Coalition, comprised of "a group of cities, counties, Chambers of Commerce, and Economic Development Commissions located proximate to the border between the United States and Mexico in the State of Texas," challenges, pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the "IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified in part at 40 U.S.C. §§ 3113-14 (2006)), section 564 of the Consolidated Appropriations Act for Fiscal Year 2008 ("2008 Appropriations Act"), Pub. L. No. 110-161, 121 Stat. 1844 (2007), the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-04 (2006), and the Due Process Clause, including its equal protection component, of the Fifth Amendment to the United States Constitution, the condemnation of land to construct a fence along part of the United States border with Mexico by the United States Department of Homeland Security (the "Department"), Complaint ("Compl.") ¶¶ 1, 37-50. Currently before the Court is the defendants' motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that the Court lacks subject matter jurisdiction to hear the plaintiff's complaint, the plaintiff lacks standing to pursue this action, and the plaintiff has failed to state a claim upon which relief may be granted. Defendants' Motion to Dismiss ("Defs.' Mot.") at 1. The plaintiff opposes the motion.*fn1 For the foregoing reasons, the Court must dismiss the complaint.
Contrary to the defendants' urging, the plaintiff's complaint is not doomed due to the Court's lack of subject matter jurisdiction. The plaintiff has alleged both violations of federal law, including constitutional violations, Compl. ¶¶ 37-50, and is seeking mandamus relief against Department officials to the extent that other legal remedies are unavailable,*fn2 id. ¶ 9; Pl.'s Opp'n at 11-13. Therefore, the Court's authority to entertain the plaintiff's claims is derived from its federal question jurisdiction to address "all civil actions arising under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331 (2006), and its jurisdiction to hear "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff,"*fn3 28 U.S.C. § 1361 (2006).
Nor is sovereign immunity a bar to this action. While [n]either the general federal question statute nor the mandamus statute by itself waives sovereign immunity[,] . . . sovereign immunity does not apply as a bar to suits alleging that [a government] officer's actions were unconstitutional or beyond statutory authority, on the grounds that "where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions."
Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996) (citations omitted).
However, while the Court cannot find fault with the plaintiff's invocation of the Court's jurisdiction, it nonetheless cannot reject the defendants' other challenges to the complaint because the plaintiff either lacks standing to pursue this action or has failed to plead any legally sustainable claims. The primary barrier to the plaintiff maintaining this action is its lack of standing to pursue the relief sought, one of the tenets of establishing a justiciable case or controversy under Article III of the Constitution. Lance v. Coffman, 549 U.S. 437, 439 (2007); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992) ("[A] plaintiff raising only a generally available grievance about government -- claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large -- does not state an Article III case or controversy."). An organization like the plaintiff has standing only if "its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit."*fn4 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (citation omitted). "[T]he question whether the litigant is a 'proper party to request an adjudication of a particular issue,' is one within the power of Congress to determine." Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972) (internal citation omitted) (stating that Article III forbids federal district courts from "render[ing] advisory opinions," "entertain[ing] 'friendly' suits," or "resolv[ing] 'political questions'" (internal citations omitted)). "[S]tanding . . . requires a plaintiff to demonstrate the now-familiar elements of injury in fact, causation, and redressability." Lance, 549 U.S. at 439. The injury alleged must be "concrete and particularized," and not merely that "the law . . . has not been followed." Id. at 439, 442.
With regard to the allegations asserted in all of the counts of the complaint, the IIRIRA authorizes the federal government to acquire an interest in privately-held, border-adjacent property for the purpose of constructing the congressionally mandated fence by either "contract[ing] for [it,] or buy[ing] [it,]" or "commenc[ing] condemnation proceedings."*fn5 IIRIRA § 102(d)(1)(b)(2), (3);*fn6 see also 40 U.S.C. §§ 3113-14 (providing that the federal government may acquire real estate "by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so"). Through these statutory provisions, Congress prescribed the manner in which the Department could acquire the property, and implicitly granted the Department discretion to determine whether condemnation proceedings should be initiated to acquire the property needed to construct the fence. See 40 U.S.C. §§ 3113-14. Only upon the Department's determination will "judicial" condemnation proceedings commence,*fn7 id., and nothing in the statute permits a property owner to prevent the initiation of such proceedings through injunctive relief or otherwise. Moreover, the statutory framework of the IIRIRA provides for no other means of acquiring the property of an unwilling owner other than through the condemnation process. It would make little procedural sense, and, indeed, thwart congressional will, to allow the plaintiff's members to preemptively challenge an anticipated condemnation when the Department's decision to pursue this course has not yet been rendered.*fn8
Albeit addressed in a different context, the Supreme Court in Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752 (1947), explained why precipitous judicial intervention is prohibited when Congress has designed an administrative process for addressing a matter in the first instance:
The very purpose of providing either an exclusive or an initial and preliminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, whether or not when it has been rendered they may intervene either in presumed accordance with Congress' will or because, for constitutional reasons, its will to exclude them has been exerted in an invalid manner. To do this not only would contravene the will of Congress as a matter of restricting or deferring judicial action. It would nullify the congressional objects in providing the administrative determination. In this case these include securing uniformity of administrative policy and disposition, expertness of judgment, and finality in determination, at least of those things which Congress intended to and could commit to such agencies for final decision.
Id. at 767-68 (emphasis added and footnote omitted);*fn9 cf. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 & n.9 (1938) ("[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted;" and "the rule is one of judicial administration -- not merely a rule governing the exercise of discretion -- [and] it is applicable to proceedings at law as well as suits in equity."); First Nat'l Bank of Greeley v. Bd. of Comm'rs of Weld County, Colo., 264 U.S. 450, 453 (1924) (holding that "the plaintiff did not exhaust its remedies before the [state] administrative boards, and consequently cannot be heard by a judicial tribunal to assert the [constitutional] invalidity of the tax") cited in Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 108 n.5 (1981). What the Supreme Court proscribed in Hirsch is exactly what the plaintiff would have this Court do here. The Court must therefore conclude that counts one through three of the complaint have been filed prematurely and accordingly the Court must decline to entertain them.*fn10
Moreover, with respect to all counts of the complaint, the plaintiff has not demonstrated that any of its members have suffered or are actually likely to suffer any concrete injury, or that there is a likelihood that their alleged injury can be redressed through a favorable decision by this Court, both necessary to establish the plaintiff's standing to bring this action. These elements of standing are lacking because it is unclear from the complaint whether any of the property owned by the plaintiff's members will actually be condemned, and therefore the Court cannot conclude that the plaintiff's members "personally . . . suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," or that the injury "is likely to be redressed by a favorable decision," as a ruling by the Court may not actually have any impact on the plaintiff's members. Heckler, 465 U.S. at 738 (citations and internal quotations omitted); see also Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 807-08 (2003) (holding that the doctrine of ripeness ensures that courts do not undertake "premature adjudication" by forbidding judicial adjudication of "'abstract disagreements over administrative policies . . . until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'" (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967))). Therefore, due to the plaintiff's attempt to adjudicate these issues before it can even be determined whether any of its members will be harmed by the defendants' decision concerning where the fence will be constructed, the Court must decline to entertain the issues at this time.
Further, the complaint fails to cite any legal authority that supports counts two and five of the complaint, which would obligate the Department to either "issue or apply, or make available . . . any rules, regulation, directives, guidelines, or instructions" with respect to negotiations between the government and the plaintiff's landowner members, how to arrive at a fixed price, or the obligatory consultation procedures envisioned by the 2008 Appropriations Act. Compl. ¶¶ 40, 46. But it is for Congress, not the judiciary, to impose rulemaking obligations on federal agencies. Accordingly, these counts of the complaint, which seemingly ask the Court to impose such an obligation on the defendants, must also be dismissed based on this request pursuant to Federal Rule of Civil Procedure 12(b)(6).
To the extent that plaintiff alleges violations of the 2008 Appropriations Act in counts four and five of the complaint, see Compl. ¶¶ 43-46 (alleging that the defendants' "threaten[ed] to condemn and obtain[ed condemnation] waivers . . . and . . . actually condemn[ed] . . . property" without consulting with landowners pursuant to section 564 of the 2008 Appropriations Act), id. ¶¶ 45-46 (alleging that the "[d]efendants fail[ed] to issue or apply, or make known . . . any rules, regulations, directives, instructions or guidelines to implement the consultation mandate set forth in § 564 of the 2008 Appropriations Act"), id. ¶¶ 49-50 (alleging that the Secretary "failed to assess the most practical and effective locations for a border fence or wall as required by the 2008 Appropriations Act"), these claims are also unable to survive the defendants' Rule 12(b)(6) challenge for the following reasons. First, the plaintiff alleges that the defendants failed to consult with them prior to initiating their condemnation procedures pursuant to the 2008 Appropriations Act. Id. ¶¶ 43-46. While the 2008 Appropriations Act does provide, in pertinent part, that the
Secretary of Homeland Security shall consult with . . . local governments, Indian tribes, and property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located under the sites at which such fencing is to be constructed[,]
§ 564(2)(C)(i), the law makes clear that "[n]othing in this subparagraph may be construed to . . . create or negate any right of action for a State, local government, or other person or entity affected by this subsection," § 564(2)(C)(ii) (emphasis added). In other words, the plaintiff seeks to pursue a claim for which no private right of action or private remedy has been created. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84 (2002) (finding with respect to 42 U.S.C. § 1983, that "[t]he question whether Congress . . . intended to create a private right of action [is] definitively answered in the negative where a statute by its terms grants no private rights to any identifiable class[,] and . . . . a plaintiff suing under an implied right of action still must show that the statute manifests an intent to create not just a private right but also a private remedy." (emphasis in original) (internal citations and quotations omitted)); cf. Alexander v. Sandoval, 532 U.S. 275, 291 (2001) ("But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress."). Further, the plaintiff fails to provide any authority upon which it can maintain a claim that the defendants must "issue or ...