The opinion of the court was delivered by: Charles P. Kocoras, District Judge
Before this Court is Defendant's motion to dismiss Plaintiff's five-count Complaint. For the following reasons, Defendant's motion is granted.
Plaintiff Gabriela Ptasinska ("Ptasinska") is a citizen of Poland and was granted an H1B employment non-immigrant visa. She lawfully resides in Chicago, Illinois, and works as a land planner for Manhard Consulting, Ltd., a civil engineering firm. In hopes of becoming a permanent resident alien of the United States, Ptasinska timely filed Form I-485, an Application to Register Permanent Residence or Adjust Status ("I-485 Application"), with the United States Citizenship and Immigration Services ("USCIS") on July 2, 2007.
The USCIS is a federal agency under the Department of Homeland Security ("DHS") that is responsible for the administration of immigration and naturalization adjudication functions. Among its duties, USCIS establishes immigration service policies and priorities and adjudicates immigrant visa petitions. The Department of State ("State Department") works in conjunction with USCIS to manage the individual allotment of employment-based immigrant visas. Each month, the State Department issues a visa bulletin estimating the number of anticipated visas that will be issued during any quarter of any fiscal year. Only individuals with a priority date earlier than the one listed on the visa bulletin may file an I-485 Application. The priority date is the date on which USCIS receives and accepts for filing the alien's labor certification in cases for which a labor certification is required before an employer may file Form I-140, which is an Immigration Petition for an Alien Worker. Ptasinska had a priority date of December 12, 2003.
On or about May 11, 2007, the State Department issued a visa bulletin summarizing the availability of immigrant numbers during June, which stated that third-preference employment workers, like Ptasinska, whose priority date was before June 1, 2005, could send their I-485 application to USCIS. Then, on July 2, 2007, the State Department issued the following update to the May 11, 2007 visa bulletin:
The sudden backlog reduction efforts by Citizenship and Immigration Services Offices during the past month have resulted in the use of almost 60,000 Employment numbers. As a result of this unexpected action it has been necessary to make immediate adjustments to several previously announced cut-off dates. All Citizenship and Immigration Services Offices have been notified of the following: Effective Monday July 2, 2007 there will be no further authorizations in response to requests for Employment-based preference cases.
All numbers available to these categories under the FY-2007 annual numerical limitation have been made available.
Employment preference numbers will once again be available to these chargeability areas beginning October 1, 2007, under the FY-2008 annual numerical limitation.
The issuing of this visa bulletin on the same day that Ptasinska submitted her I-485 Application led Ptasinska to believe that USCIS would not accept her I-485 Application. In response, on July 6, 2007, Ptasinska filed a five-count class action suit against Defendant United States Department of State; Defendant Condoleeza Rice; Defendant United States Department of Homeland Security; Defendant Michael Chertoff; Defendant United States Citizenship and Immigration Services; Defendant Emilio T. Gonzalez; and Defendant F. Gerard Heinauer, alleging violations under: Count 1) the Fifth Amendment; Count 2) the Administrative Procedures Act; Count 3) the Declaratory Judgment Act; Count 4) the Equal Access to Justice Act; and Count
On August 23, 2007, Ptasinska received notification that her I-485 Application had been denied. That same day, Defendant's counsel allegedly contacted Ptasinska's counsel and informed Ptasinska's counsel via telephone how to immediately re-submit Ptasinska's I-485 Application. On August 27, 2007, Defendant's counsel also allegedly provided Ptasinska with special mailing instructions not available to the public and the name of a contact person within the USCIS Nebraska Service Center. Ptasinska allegedly followed Defendant's counsel's instructions and sent her I-485 Application to USCIS on August 28, 2007. USCIS received Ptasinska's I-485 Application on August 31, 2007. Four days later, on September 4, 2007, Defendants filed the instant motion to dismiss Ptasinska's Complaint under Fed. Rule Civ. P. 12(b)(1) and 12(b)(6) on the ground that the Complaint lacked subject matter jurisdiction and failed to state a claim upon which relief could be granted. Ptasinska's I-485 Application has since been accepted by USCIS.
In evaluating motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), we accept as true all well-pleaded facts and draw all reasonable inferences in favor of the plaintiff. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006); Sapperstein, 188 F.3d at 855. While the notice pleading standard, which is presently applicable, does not require the plaintiff to plead facts or legal theories, "'the plaintiff must allege facts sufficient to bring a claim within a legally recognized cause of action, [and] not simply conclusions.'" Hefferman v. Bass, 467 F.3d 596, 599 (7th Cir. 2006). Under Rule 12(h)(3), a challenge to subject matter jurisdiction may be raised at any time. Fed. R. Civ. P. 12(h)(3); Kontrick v. Ryan, 540 U.S. 443, 445 (2004). Further, under Rule 12(b)(1), the plaintiff bears the burden of establishing subject matter jurisdiction, and the court may ...