                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 25 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DZU CONG TRAN; DANIEL MAI                        No. 11-35277
DINH; AUSTIN PETER TRAN, on
behalf of themselves and all others              D.C. No. 3:10-cv-00724-ST
similarly situated,

              Plaintiffs - Appellants,           MEMORANDUM *

  v.

JANET A. NAPOLITANO, Secretary,
Department of Homeland Security;
ALEJANDRO MAYORKAS, Director,
U.S. Citizenship and Immigration
Services; DONALD NEUFELD,
Associate Director, USCIS Service Center
Operations Directorate; CHRISTINA
POULOS, Director, USCIS California
Service Center; HILLARY RODHAM
CLINTON, Secretary of State, U.S.
Department of State; JANICE L. JACOBS,
Assistant Secretary for Consular Affairs,
U.S. Department of State; JOHN AND
JANE DOE U.S. CONSULAR
OFFICERS; CHARLES E. BENNETT,

              Defendants - Appellees.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                      Argued and Submitted October 10, 2012
                                Portland, Oregon

Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.

      Plaintiffs Dzu Cong Tran, Daniel Mai Dinh, and Austin Peter Tran are U.S.

citizens who were engaged to Vietnamese citizens. Plaintiffs appeal the district

court’s dismissal of their Complaint challenging consular officials’ refusal to issue

K-1 visas to their fiancées. Plaintiffs sought various forms of relief that would

change the K-1 procedures of the State Department and Department of Homeland

Security U.S. Citizenship and Immigration Services. They also sought damages,

based on a theory of unjust enrichment, for filing fees they allege were unlawfully

required. While this appeal was pending, however, two of the three plaintiffs

married their fiancées. The third plaintiff, Dzu Tran, broke up with his fiancée.

Accordingly, Plaintiffs’ claims seeking to change the K-1 procedures are moot and

must be dismissed. We conclude that the district court properly dismissed their

claim for monetary relief and affirm that dismissal.

      The mootness doctrine, embedded in Article III of the Constitution, requires

that a case or controversy exist at all stages of federal court proceedings. U.S.



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Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980). We do not have

constitutional authority to decide moot cases. Pitts v. Terrible Herbst, Inc., 653

F.3d 1081, 1087 (9th Cir. 2011). “[I]f events subsequent to the filing of the case

resolve the parties’ dispute, we must dismiss the case as moot.” Id. Subsequent

events mooted Plaintiffs’ claims for declaratory and injunctive relief related to

their K-1 visa petitions, so we do not have authority to adjudicate those claims.

      These three plaintiffs are the only parties before the court. Plaintiffs alleged

in their Complaint that they sought to represent a putative class of similarly-

situated K-1 petitioners, but no class was certified, and Plaintiffs did not move for

class certification. Plaintiffs’ counsel may have had good reasons not to seek class

certification at the time, but that does not alter our inability to adjudicate the claims

of those absent non-parties. See Sosna v. Iowa, 419 U.S. 393, 399 (1975) (“When

the District Court certified the propriety of the class action, the class of unnamed

persons described in the certification acquired a legal status separate from the

interest asserted by the appellant.”). In contrast to Sosna, the alleged class of

unnamed plaintiffs here acquired no legal interest in Plaintiffs’ action.

      This case is also distinguishable from our recent decision in Pitts, 653 F.3d

at 1090, where we held that a defendant’s offer of judgment to the named plaintiff

did not moot the action. No act of Defendants here caused Plaintiffs’ claims to


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become moot. Id. at 1091 (rejecting defendant’s argument that its offer of

judgment under Federal Rule of Civil Procedure 68 prior to a motion for class

certification mooted plaintiff’s class action claim). The three plaintiffs before the

court no longer have legally cognizable interests in the injunctive and declaratory

relief they seek, so we must dismiss their claims as moot.

      Plaintiffs also argue that their claims fall within an exception to the

mootness doctrine that arises when claims are capable of repetition, yet evade

review. Alvarez v. Hill, 667 F.3d 1061, 1065 (9th Cir. 2012). This exception is,

however, “limited to extraordinary cases in which (1) the duration of the

challenged action is too short to be fully litigated before it ceases, and (2) there is a

reasonable expectation that the plaintiff will be subjected to the same action

again.” C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 983

(9th Cir. 2011) (internal quotation marks and alteration omitted). The exception

does not apply when there is no expectation that the same complaining party would

be subjected to the same action again. Sze v. I.N.S., 153 F.3d 1005, 1009 (9th Cir.

1998) (citing Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). There is no

reasonable expectation that Plaintiffs will be subject to the complained-of

procedures again. Two of the Plaintiffs are now married and the third no longer

seeks a K-1 visa because his relationship ended. While it is possible that one of the


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Plaintiffs will again file a petition on behalf of a non-citizen fiancée, that

possibility is too speculative to warrant application of the “capable of repetition,

yet evading review” exception to the mootness doctrine. See Alvarez, 667 F.3d at

1064 (rejecting as too speculative a former prisoner’s argument that he may again

be subjected to the challenged prison policies, because he completed his sentence

and had been released).

       Plaintiffs argue that they nonetheless possess a cognizable claim to a refund

of filing fees that they paid for the K-1 visas they were unable to obtain. These

claims are not moot. Plaintiffs Dinh and Peter Tran indisputably paid additional

fees after the rejection of their original K-1 visa petitions: Dinh for a new,

successful K-1 petition and Tran for an I-130 petition. They allege that they would

not have paid the additional fees absent the consular officials’ bad faith denial of

their original petitions.

       The district court dismissed these claims under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim upon which relief could be granted.

This court reviews de novo a district court’s dismissal of a complaint for failure to

state a claim. Manazarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030

(9th Cir. 2008).




                                            5
      The Administrative Procedure Act provides plaintiffs a comprehensive

remedial scheme for alleged harm suffered through agency action. 5 U.S.C.

§§ 701-706; see also W. Radio Servs. v. U.S. Forest Serv., 578 F.3d 1116, 1122

(9th Cir. 2009). But the Act does not permit claims for money damages. 5 U.S.C.

§ 702; W. Radio Servs., 578 F.3d at 1123. Plaintiffs show no basis for a claim that

any statute contemplates “specific relief” entitling them to repayment of these fees.

See Bowen v. Mass., 487 U.S. 879, 895 (1988) (holding that the Administrative

Procedure Act does not allow claims for money damages, but allows monetary

relief when a plaintiff seeks to enforce a statutory mandate). As Plaintiffs seek

compensation, not enforcement of a statutory mandate, they fail to state a claim

upon which relief may be granted.

      Costs are awarded to Defendants.

      DISMISSED in part and AFFIRMED in part.




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