Arias v. Mayorkas

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

SLOANE BEATRIS ARIAS PLAINTIFF

V. CASE NO. 5:22-CV-5248

KRISTI NOEM, et al.1 DEFENDANTS

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion for Reconsideration (Doc.

45); Plaintiff’s Response (Doc. 46), which this Court construes to include a Motion for

Reconsideration and Motion for Leave to Amend; and Defendants’ Response (Doc. 51).

For the reasons stated in this Opinion and Order, the Court GRANTS Defendants’ Motion

(Doc. 45); DENIES Plaintiff’s request for reconsideration, see Doc. 46; and GRANTS IN

PART AND DENIES IN PART Plaintiff leave to amend, see Doc. 46.

The Court will start by reviewing the background of the case. It will then address

each party’s motion for reconsideration and Plaintiff’s motion for leave to amend.

I. BACKGROUND2

Plaintiff Sloane Beatris Arias is a United States citizen married to Otto Sandoval,

who is a citizen of El Salvador. In 2017, Ms. Arias and Mr. Sandoval initiated the process

for him to become a legal permanent resident of the United States. Because Mr. Sandoval

had entered the U.S. without inspection nearly ten years prior, he was required to process

1 Under Federal Rule of Civil Procedure 25(d), an officer’s successor is automatically

substituted as a party.

2 All facts stated in this section are taken from the operative First Amended Complaint

(Doc. 16) and are merely alleged at this stage.

his request for permanent residence at the U.S. Consulate in San Salvador. Ms. Arias

and Mr. Sandoval completed the necessary forms to enable Mr. Sandoval’s travel, and

he traveled to San Salvador where he attended two interviews in mid-to-late-2021. In his

second interview, Mr. Sandoval was interrogated and accused of being affiliated with a

gang. Though he denied any such affiliations, the consular officer told Mr. Sandoval that

she would grant him asylum in the U.S. if he would provide the names of gang members

known to him.

Approximately one month later, Mr. Sandoval was informed that he had been found

permanently inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) “due to the consular officer’s

factual finding that there is reason to believe that [he is] a member of a known criminal

organization consistent with the Department of State’s Foreign Affairs Manual [ ], at 9 FAM

302.5-4(B)(2).” He was also informed that he was ineligible for a waiver of inadmissibility.

Section 1182(a)(3)(A)(ii) renders inadmissible a non-citizen who “a consular officer . . .

knows, or has reasonable ground to believe, seeks to enter the United States to engage

solely, principally, or incidentally in . . . any other unlawful activity.” And the cited Foreign

Affairs Manual (“FAM”) provision requires the consular officer to “find facts supporting a

reason to believe the applicant is an active member” of specific criminal organizations. 9

FAM 302.5-4(B)(2)(a).

Through counsel, Ms. Arias requested a factual basis for her husband’s visa denial

from the Embassy of San Salvador. After some back-and-forth, the Immigrant Visa Unit

sent an email to Mr. Sandoval restating that he was refused a visa under

§ 1182(a)(3)(A)(ii) due to the belief that he is a member of a criminal organization under

the relevant FAM section. The email added that the factual finding was reached “following

a thorough investigation by consular staff.” It provided no factual predicate for the belief

that Mr. Sandoval was an active member of a criminal organization.

In December 2022, Plaintiff brought this suit, seeking review of her husband’s visa

denial. The operative complaint is Plaintiff’s First Amended Complaint (Doc. 15), which

brought claims under the Administrative Procedure Act (“APA”) and the Fifth

Amendment’s due process clause. Defendants previously moved to dismiss for failure to

state a claim. See Doc. 19. On July 16, 2023, the Court granted in part and denied in part

Defendants’ motion, dismissing Plaintiff’s APA claim but keeping Plaintiff’s Fifth

Amendment claim. See Doc. 27. Importantly, in keeping the due process claim, the Court

followed the Ninth Circuit’s decision in Muñoz v. United States Department of State, 50

F.4th 906 (9th Cir. 2022), rev’d and remanded sub nom. Department of State v. Muñoz,

602 U.S. 899 (2024).

Fast forward several months, the Supreme Court of the United States granted

certiorari to the Department of State in the Ninth Circuit case, and in January 2024, this

Court stayed the instant case pending the Supreme Court’s likely dispositive decision.

See Doc. 42. On June 21, 2024, the Supreme Court issued its decision in Muñoz v.

Department of State, 602 U.S. 899 (2024), reversing the Ninth Circuit’s decision.

Subsequently, Defendants filed the instant Motion for Reconsideration, asking the Court

to dismiss Plaintiff’s due process claim in light of the Supreme Court’s decision in Muñoz.

See Doc. 45. Plaintiff filed a Response, asking the court to reconsider its prior dismissal

of the APA claim and seeking leave to amend to add claims under the First Amendment

and the Accardi doctrine. See Doc. 46. Pursuant to the Court’s instruction, Defendants

filed a Response to Plaintiff’s request for reconsideration and leave to amend. See Doc.

51.

II. MOTIONS FOR RECONSIDERATION

Federal Rule of Civil Procedure 54(b) provides that interlocutory orders “may be

revised at any time before the entry of a judgment adjudicating all the claims and all the

parties’ rights and liabilities.” Put differently, “[t]he district court has the inherent power to

reconsider and modify an interlocutory order any time prior to the entry of judgment.”

K.C.1986 Ltd. P'ship v. Reade Mfg., 472 F.3d 1009, 1017 (8th Cir. 2007) (citation omitted).

Reconsideration may be appropriate where the earlier decision “would be rendered

incorrect because of a controlling or significant change in law since the issues were

submitted to the Court.” Trickey v. Kaman Indus. Techs. Corp., 2011 WL 2118578, at *2

(E.D. Mo. May 26, 2011); Grozdanich v. Leisure Hills Health Ctr., Inc., 48 F. Supp. 2d 885,

888 (D. Minn. 1999).

A. Defendants’ Motion for Reconsideration

Defendants move the Court to reconsider its prior refusal to dismiss Plaintiff’s Fifth

Amendment due process claim in light of the Supreme Court’s recent decision in Muñoz.

In Muñoz, a U.S. citizen brought a Fifth Amendment due process claim after her

husband’s visa application was denied under § 1182(a)(3)(A)(ii)—the same provision as

here. Ruling against Muñoz, the Supreme Court held that “a citizen does not have a

fundamental liberty interest in her noncitizen spouse being admitted to the country.” 602

U.S. at 910. The Supreme Court also took the opportunity to clarify its prior holding in

Kleindienst v. Mandel, 408 U.S. 753 (1972), which this Order addresses in Part III(B),

infra.

The Court finds Muñoz dispositive on Plaintiff’s due process claim. Here, Plaintiff

claimed Defendants violated her Fifth Amendment due process rights when they failed to

provide a facially legitimate and bona fide reason as to why her husband’s visa was

denied. Prior to the Supreme Court’s decision in Muñoz, this Court had refused to dismiss

Plaintiff’s Fifth Amendment claim, citing the Ninth Circuit’s now-reversed opinion as

support and finding that Plaintiff had a Fifth Amendment right in her husband’s consular

process that was plausibly violated by Defendants. See Doc. 27. Under Muñoz, however,

Plaintiff’s Fifth Amendment claim fails as a matter of law, as the Supreme Court has now

held that a citizen does not have a Fifth Amendment “fundamental liberty interest in her

noncitizen spouse being admitted to the country.” Id. at 910. Accordingly, Defendants’

Motion (Doc. 45) is GRANTED, and Plaintiff’s Fifth Amendment claim is DISMISSED.

B. Plaintiff’s Motion for Reconsideration

In her Response, Plaintiff moves the Court to reconsider its prior dismissal of her

claim under the Administrative Procedure Act (“APA”). In a prior Memorandum Opinion

and Order, the Court dismissed the APA claim, reasoning that it was barred by consular

nonreviewability because “the Mandel exception”—which provides a narrow exception to

consular nonreviewability when a U.S. citizen’s constitutional rights are implicated—“does

not apply to statutory claims.” (Doc. 27, p. 26).

Plaintiff argues that the Supreme Court’s recent abrogation of the Chevron doctrine

in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), overrides consular

nonreviewability. This argument is a nonstarter. The Chevron doctrine required courts to

defer to an agency’s interpretation of the relevant statutory law where the statute was

ambiguous or silent on the question at issue. Chevron U.S.A. Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 843 (1984). This Court’s dismissal of the APA claim here did

not turn on deference to any agency interpretation of the law, so Chevron was, and Loper

Bright is, inapplicable. Moreover, Muñoz—decided approximately one week before Loper-

Bright—made clear that consular nonreviewability is alive and well. The APA claim was

properly dismissed because it is barred by consular nonreviewability, and Plaintiff’s

Motion for Reconsideration is DENIED.

III. PLAINTIFF’S MOTION TO AMEND

Under Federal Rule of Civil Procedure 15(a)(2), a Court should freely grant a party

leave to amend its pleading when justice so requires. While the Court has discretion to

deny leave to amend based on futility of the amendment, doing so “means the district

court has reached the legal conclusion that the amended complaint could not withstand

a motion to dismiss under Rule 12(b)(6).” Cornelia I. Crowell GST Trust v. Possis Med.,

Inc., 519 F.3d 778, 781–82 (8th Cir. 2008).

Plaintiff seeks to file an amended complaint to bring claims under the APA, the First

Amendment, and the Accardi doctrine.

A. Proposed Count I: APA Claim

Plaintiff seeks to revive her previously dismissed APA claim as Count I of her

proposed amended complaint. For the same reasons the Court denies Plaintiff’s request

for reconsideration of her APA claim, the Court DENIES Plaintiff’s request to amend her

complaint to include this claim.

B. Proposed Count II: First Amendment Claim

It is well established that, generally, courts should not review a consular officer’s

visa denial—a doctrine known as consular nonreviewability. Courts, however, recognize

a “narrow exception to this bar exists ‘when the denial of a visa allegedly burdens the

constitutional rights of a U.S. citizen.’” Muñoz, 602 U.S. at 908 (quoting Trump v. Hawaii,

585 U.S. 667, 703 (2018)). Where a constitutional right is burdened, courts then look to

“whether the Executive gave a ‘facially legitimate and bona fide reason’ for denying the

visa.” Id. (citation omitted); see Mandel, 408 U.S. at 770. If a facially legitimate and bona

fide reason was given, “the inquiry is at an end,” Muñoz, 602 U.S. at 908, and courts will

“neither look behind the exercise of that discretion, nor test it by balancing its justification

against the [constitutional interests of the U.S. citizen].” Mandel, 408 U.S. at 770.

Plaintiff initially sought to fall within this narrow exception by asserting a Fifth

Amendment due process right. However, Muñoz has now made clear that a U.S. citizen

does not have a substantive due process right in her noncitizen husband being admitted

to the U.S. So, to remain within this exception to consular nonreviewability, Plaintiff seeks

leave to add a claim asserting that the denial of her husband’s visa directly deprived her

of her First Amendment right to receive information from her husband face-to-face. See

Mandel, 408 U.S. at 762 (“It is now well established that the Constitution protects the right

to receive information and ideas.” (internal quotations and citations omitted)); id. at 765

(noting there “may be particular qualities inherent in sustained, face-to-face debate,

discussion and questioning”); see also Murthy v. Missouri, 603 U.S. 43, 75 (2024)

(explaining that a cognizable injury to a person’s right to receive information and ideas

under the First Amendment exists “only where the listener has a concrete, specific

connection to the speaker” (citing Mandel, 408 U.S. at 762)).

Defendants argue that such amendment would be futile, citing Mandel and Muñoz.

According to Defendants, “Mandel foreclosed a balancing of First Amendment interests

against the Executive’s interests in excluding a foreign national such as Mr. Sandoval,

and Muñoz foreclosed any requirement that the Executive provide Plaintiff with a facially

legitimate and bona fide reason for the denial of a visa to their foreign national spouse.”

(Doc. 51, pp. 6–7). To start, Defendants’ reading of these cases glosses over some

apparent daylight between the holdings in Mandel and Muñoz. Moreover, Defendants

misconstrue Plaintiff’s argument—she does not ask the Court to order Defendants to

provide a facially legitimate and bona fide reason but rather makes a direct First

Amendment claim.

Again, generally a consular officer’s exclusion decisions are not reviewable, except

where a U.S. citizen’s constitutional rights are implicated. However, even where such

rights are implicated, review is precluded where the official provided a facially legitimate

and bona fide reason. Importantly, Mandel, Muñoz, and the instant case all fall within

different steps of this framework. Muñoz addressed the threshold question: whether a

U.S. citizen’s constitutional rights were implicated. There, the asserted constitutional right

was not implicated because U.S. citizens do not have a right, under the Fifth Amendment,

to have their noncitizen spouse admitted to the U.S. Mandel addressed the next question:

under what circumstances judicial review is available when a constitutional right is

implicated and a facially legitimate and bona fide reason is provided.

In Mandel, multiple professors who were United States citizens invited Ernest E.

Mandel, a Belgian professor and self-described “revolutionary Marxist,” to speak in the

United States. 408 U.S. at 756–57. In short, Mandel’s visa application was denied and

his request for waiver was rejected. Id. at 758–59. The professors brought a claim under

the First Amendment, alleging that the statute under which Mandel was excluded was

unconstitutional on its face and as applied because it deprived them from receiving

information from Mandel. Id. at 760, 763. While recognizing that the First Amendment was

implicated, the Supreme Court refused to review the decision to exclude Mandel because

the Executive had provided a “facially legitimate and bona fide reason” for the exclusion.

Contrary to Defendants argument, however, Mandel did not foreclose a First

Amendment balancing test altogether. Rather, Mandel held: “[W]hen the Executive

exercises [its exclusionary] power negatively on the basis of a facially legitimate and bona

fide reason, the courts will neither look behind the exercise of that discretion, nor test it

by balancing its justification against the First Amendment interests of those who seek

personal communication with the applicant.”3 Mandel, 408 U.S. at 770 (emphasis added).

Beyond misquoting the holding in Mandel, Defendants’ assertion that Mandel “foreclosed

a substantive First Amendment claim” mischaracterizes the breadth of the Court’s

holding. The Court in Mandel explicitly stated: “What First Amendment or other grounds

may be available for attacking exercise of discretion for which no justification whatsoever

is advanced is a question we neither address [n]or decide in this case.” Id. at 770. Thus,

while Mandel foreclosed balancing First Amendment interests against the Executive’s

exclusion interests in cases where a facially legitimate and bona fide reason was

provided, it expressly left open whether First Amendment grounds may exist for attacking

the exercise of this discretion absent such a justification.4

3 In its briefing, Defendants materially misquote this sentence by excluding the italicized

qualifying language without any indication that part of the quote was omitted. See Doc.

51, p. 6.

4 The Court is mindful of the Supreme Court’s deference to Congress and the Executive

in making inadmissibility decisions, including its caution against creating a balancing test.

See, e.g., Mandel, 408 U.S. at 768. The Court notes that, despite these concerns, the

In Mandel, the exclusion decision was nonreviewable because there was a facially

legitimate and bona fide reason provided; and in Muñoz, the exclusion decision was

nonreviewable because no constitutional right was burdened. On the face of the proposed

amended complaint here, neither of these bars to judicial review apply: A constitutional

right is allegedly burdened and there is an absence of a facially legitimate and bona fide

reason.5

In addition to holding there was no substantive due process right, Muñoz held that

U.S. citizens have no constitutional right to participate in another person’s visa application

process. 602 U.S. at 919. That is, even where a citizen has a substantive “independent

constitutional right” that is affected by another’s consular process, that does not “give[ ]

that citizen a procedural due process right to a ‘facially legitimate and bona fide reason’

for why someone else’s visa was denied.” Id. at 919 (emphasis added). Importantly, the

Supreme Court distinguished between the claims made in Muñoz and Mandel, explaining

that the “‘facially legitimate and bona fide reason’ in Mandel was the justification for

Supreme Court still declined to foreclose a First Amendment challenge where no facially

legitimate and bona fide reason was given.

5 The Court previously ruled that the reason given in this case was not facially legitimate

and bona fide. See Doc. 27, pp. 15–25. In their initial briefing on the motion to reconsider,

Defendants merely argue that because there is no Fifth Amendment constitutional

interest, the Court need not reach the facially legitimate and bona fide reason question.

See Doc. 45-1. Then, in their response, Defendants include a footnote reasserting their

previous arguments. See Doc. 51, p. 7 n.2. The Court previously noted that this was a

“close question” with no controlling authority. (Doc. 27, p. 18). It then engaged with five

separate circuit cases that had found a facially legitimate and bona fide reason and

ultimately concluded, “Unlike the explanations given in those cases, the Immigrant Visa

Unit’s letter [here] does not state the specific organization Mr. Sandoval is an alleged

member of, the nature of his suspected criminal activity, nor any of the facts that led the

officer to her conclusion.” Id. at 19. The Court declines to reconsider that ruling here.

avoiding a difficult question of statutory interpretation; it had nothing to do with procedural

due process.” Id. at 918. The Court in Muñoz stated:

Indeed, a procedural due process claim was not even before the Court [in

Mandel]. The professors argued that the denial of Mandel's visa directly

deprived them of their First Amendment rights, not that their First

Amendment rights entitled them to procedural protections in Mandel's visa

application process. To make an argument logically analogous to that of the

professors [in Mandel], Muñoz would have to claim that the denial of [her

husband’s] visa violated her substantive due process right to bring her

noncitizen spouse to the United States—thereby triggering the State

Department's obligation to demonstrate why denying him the visa is the

least restrictive means of serving the Government's interest in national

security. But, as we have explained, Muñoz has disavowed that argument,

which cannot succeed in any event because the asserted right is not a

longstanding and “deeply rooted” tradition in this country.

Muñoz, 602 U.S. at 918–19 (citations omitted) (emphasis added).6

Unlike in Muñoz, Plaintiff here does not assert a procedural right to receive a

facially legitimate and bona fide reason for the denial of her husband’s visa.7 Rather,

Plaintiff asserts that the “denial of [her husband’s] visa directly deprive[s] [her] of [her]

First Amendment rights, not that [her] First Amendment rights entitle[ her] to procedural

protections in [her husband’s] visa application process.” Id. at 918. The Supreme Court

concluded its opinion in Muñoz by stating, “Whatever else it may stand for, Mandel does

not hold that a citizen’s independent constitutional right (say, a free speech claim) gives

that citizen a procedural due process right to a ‘facially legitimate and bona fide reason’

6 Admittedly, earlier in the decision, the Supreme Court described Muñoz’s disavowal of

such an argument as “wise,” noting “it would be remarkable to put the Government to the

most demanding test in constitutional law [strict scrutiny] in the field of immigration, an

area unsuited to rigorous judicial oversight.” Muñoz, 602 U.S. at 911.

7 As a practical matter, however, the provision of a facially legitimate and bona fide reason

would place Defendants squarely in Mandel territory and allow them to avoid judicial

review where consular nonreviewability would clearly apply.

for why someone else’s visa was denied.” Id. at 919 (emphasis added). Plaintiff now

seeks to flesh out “[w]hatever else [Mandel] may stand for” post-Muñoz.

While judicial review of an exclusion decision is an undesirable result, Defendants

have not briefed whether, in the absence of a facially legitimate and bona fide reason, a

First Amendment claim is viable.8 Rather, they rely entirely on their argument that Mandel

foreclosed First Amendment review—overlooking the distinction that a facially legitimate

and bona fide reason was provided in Mandel and intentionally avoiding the Supreme

Court’s explicit statement that Mandel did not address what First Amendment grounds

might exist where a facially legitimate and bona fide reason was not provided.

The Court is unpersuaded that Mandel and Muñoz foreclose judicial review of

Plaintiff’s First Amendment claim where no facially legitimate or bona fide reason was

provided. And on the current briefing, the Court will defer any decision as to whether

Defendants’ exclusion of Plaintiff’s husband in fact implicates her First Amendment right

to receive information. In the spirit of freely granting leave to amend, the Court GRANTS

Plaintiff’s Motion for Leave to Amend to add a First Amendment claim. See Doc. 46, pp. 5–

8 In fact, the government concedes that a “First Amendment right to receive information

exists”; it just “has never been held to override the sovereign’s power to exclude

admissible aliens.” (Doc. 51, pp. 5–6). While Defendants do argue that Plaintiff’s First

Amendment claim fails to state a plausible claim for relief because Plaintiff can receive

information from her husband in other ways, (Doc. 51, p. 8), the Supreme Court in Mandel

rejected a similar argument because it “overlook[ed] what may be particular qualities

inherent in sustained, face-to-face debate, discussion and questioning.” 408 U.S. at 765.

The Supreme Court further stated, “While alternative means of access to Mandel’s ideas

might be a relevant factor were [the Court] called upon to balance First Amendment rights

against governmental regulatory interests”—which it found unnecessary because a

facially legitimate and bona fide reason had been given—it was “loath to hold on this

record that existence of other alternatives extinguishes altogether any constitutional

interest on the part of the [professors] in this particular form of access.” Id.

6. Defendants may wish to file a motion to dismiss the amended complaint to argue that

the First Amendment does not, as a matter of law, protect Ms. Arias’s right to receive

information from Mr. Sandoval in person in the United States, bearing in mind the Court’s

holding here that Muñoz and Mandel do not squarely address or foreclose this issue.

C. Proposed Count III: Accardi Claim

Plaintiff proposes adding a claim under the Accardi doctrine, alleging that

Defendants’ failure to follow their own rules and regulations deprived Plaintiff of her ability

to seek reconsideration of the inadmissibility decision. The Eighth Circuit has

“recognize[d] that the Accardi doctrine bars administrative agencies from taking action

inconsistent with their internal regulations when it would affect individual rights.” United

States v. Lee, 274 F.3d 485, 492 (8th Cir. 2001) (internal quotation marks and citations

omitted). “The crucial question is whether the alleged conduct of [the agency] deprived

[plaintiff] of any [ ] right[ ] guaranteed [her] by the statute or by the regulations issued

pursuant thereto.” United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265

(1954).

The alleged rule or regulation here is 22 C.F.R. § 42.81(e), which states, “If a visa

is refused, and the applicant within one year from the date of refusal adduces further

evidence tending to overcome the ground of ineligibility on which the refusal was based,

the case shall be reconsidered.” Plaintiff alleges that Defendants failed to implement

subsection (e) by failing to timely identify a specific factual predicate to support the

inadmissibility determination and, thereby, deprived Plaintiff of a meaningful opportunity

to proffer new evidence to overcome the visa denial. (Doc. 46-1, p. 14). In response,

Defendants argue that Plaintiff’s proposed amended complaint does not articulate any

violation of this provision because it does not allege that she or her husband submitted

information to overcome the refusal within one year of the visa denial. (Doc. 51, p. 9).

The Court is sympathetic that without a factual predicate a person’s ability to

contest the conclusory finding of inadmissibility is greatly frustrated. However, the Court

cannot identify any action that the agency took that was inconsistent with its own

regulations that deprived Plaintiff of a right guaranteed her by the statute or the

regulations. In fact, the statute and regulations guarantee her no right. A person found to

be inadmissible under § 1182(a)(3), like Plaintiff’s husband, is not entitled even to timely

written notice of the determination or the specific provision of law under which the person

was deemed inadmissible—certainly their spouse is not entitled under the statute either.

See 8 U.S.C. § 1182(b)(3). Additionally, under 9 FAM 302.5-4(B)(2), which was cited as

part of the basis for the inadmissibility decision here, the consular officer must “make clear

findings in the case notes, setting forth in detail all the facts supporting a reason to believe

that the applicant is a member of a criminal organization” and “identify the organization of

which they are a member.” But there is no requirement that those factual findings be

disclosed to the person deemed to be inadmissible or their spouse. Id.

In light of Muñoz’s holding that a citizen spouse does not have a right to procedural

due process in her noncitizen spouse’s consular process, the Court is hard pressed to

find that Plaintiff is entitled to certain administrative processes in her husband’s visa

denial, particularly when there is no allegation that Defendants acted inconsistent with

their own rules or regulations. The Court will, therefore, DENY Plaintiff’s request to add a

claim under the Accardi doctrine.

IV. CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED that Defendants’ Motion

for Reconsideration (Doc. 45) is GRANTED, and Plaintiff's Fifth Amendment claim is

DISMISSED.

IT IS FURTHER ORDERED that Plaintiff's Motion for Reconsideration of the

Court’s prior dismissal of the APA claim, see Doc. 46, is DENIED.

IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to File an Amended

Complaint, see Doc. 46, is GRANTED IN PART AND DENIED IN PART. The Court

declines Plaintiff's request to resurrect her APA claim or add an Accardi claim. The Court

will, however, permit Plaintiff to amend her complaint to include a First Amendment claim.

Plaintiff must file her amended complaint, subject to the limits stated herein, within seven

(7) days from the issuance of this Order. To the extent Defendants wish to move to

dismiss the amended complaint, they must do so within thirty (30) days of its filing.

The Court will enter a new scheduling order separately.

IT IS SO ORDERED on this 31% day of March, 2025.

UNITED STATES DISTRICT JUDGE

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