Concerned that plaintiff had misconstrued defendant's argument about subject matterjurisdiction, in its reply, the United States in its preliminary statement, again reiterated its unripenessposition.
Def. Reply Br. at p. 1. The United States maintained in the reply brief, "Defendantscrupulously argued in its initial brief that this Court should dismiss the matter as unripe. Defendantprovided a footnote citation to a Third Circuit opinion wherein the Court of Appeals pondered whether the District Court even had subject matter jurisdiction. However, defendants' explicitly concluded that '[t]his Court should dismiss the amended complaint without prejudice while theremoval proceedings are pending, because the amended complaint is unripe.
Def.'s Letter Br. atpp. 2-3."
Def. Reply Br. at p. 3. The United States then reiterated its position three more times,including the conclusion, leaving little doubt that the United States asserted that while there isconcurrent jurisdiction, again citing to
, the Court should dismiss the unripe matter to advancethe sound administration of justice by avoiding duplicative litigation.
. at 3-4. As footnote 1 of this Court's opinion demonstrates, this Court has overlooked the argumentof the United States.
See Kestelboym v. Chertoff
, ___ F. Supp.2d ___, 2008 WL 68398 at *1 n.1 (D.N.J.Mar. 13, 2008). Contrary to the Court's assertion in that footnote, the United States was notchallenging the Court's subject matter jurisdiction. The United States's collective submissionsdemonstrate this to be true. Furthermore, contrary to the Court's assertion, the United States restedits authority on Rule 12 as well as
, for the repeated assertion that while there may be subjectmatter jurisdiction, the matter should be dismissed as unripe. Aside from this, the United Statessubmits that ripeness is not truly rooted in any rule, but in prudential considerations, as the ThirdCircuit has recited.
See Armstrong World Indus. by Wolfson v. Adams
, 961 F.2d 405, 411 n. 12 (3d Cir.1992). Interestingly, one District Court in the District of New Jersey has attached the ripenessdoctrine to Rule 12(b)(1), which is the Rule this Court attached to the United States's submission.
See Ford Motor Credit Co. v. Chiorasso
, 529 F. Supp.2d 535, 539-40 (D.N.J. 2008). Aside from the citationto the Rule or case law, the United States plainly set forth the novel ripeness argument for review.Finally, because of the novelty of the argument, it was not possible to cite to case law. The Court's entire opinion went on to hold that the Court has subject matter jurisdiction.
, 2008 WL 68398 at *1-6. However, the United States plainly had recognized and concededthat point. The United States's only argument was that the Court should dismiss the matter asunripe. This Court did not address the United States's only argument. The United States submits that this is that rare case for reconsideration, and submits furtherthat this Court should dismiss the amended complaint without prejudice because of unripeness as amatter prudence, because of the pending removal proceedings. In support thereof, consistent withthe position of the United States, this Court in its opinion has agreed that the priority provision isdesigned to prevent a race between the immigrant and the Attorney General and that the overhaulof the naturalization process was designed to shift from judicial to administrative naturalizationproceedings.
, 2008 WL 68398 at *3. Moreover, consistent with the United States'sposition, this Court has agreed that the Court has concurrent jurisdiction. The United States neversuggested, as the Court has understood the United States's argument, that the Attorney Generalcould avoid the Court's jurisdiction,
. at *5, rather it conceded the Court's jurisdiction and only suggested that prudentially this Court should dismiss the immigrant's complaint. However, the Courtdid not reach the United States's ripeness argument. In this way, should this Court reconsider andagree, the immigrant, under the proper circumstances, would still have the opportunity to bring the
Case 2:07-cv-00857-JAG-MCA Document 16-3 Filed 03/31/2008 Page 2 of 3