68
O'Connor, J., concurring in judgment
that problem except in passing. See Pet. for Cert. 11, n. 13; Brief for Petitioners 20; Brief for Respondents 17, n. 23. Rather, certiorari was granted on two questions, to which the parties rightly have adhered: first, whether the District Courts had jurisdiction under 8 U. S. C. § 1255a(f), the judicial-review provision of Title II of the Reform Act; and second, whether the courts properly extended the application period. See Pet. for Cert. i. The Court finds the jurisdictional challenge meritless under McNary v. Haitian Refugee Center, Inc., 498 U. S. 479 (1991), see ante, at 53-56, as do I. But instead of proceeding to consider the second question presented, the Court sua sponte attempts to resolve the case on ripeness grounds. It reaches out to hold that "the promulgation of the challenged regulations did not itself give each CSS and LULAC class member a ripe claim; a class member's claim would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying the regulation to him." Ante, at 59. This is new and, in my view, incorrect law. Moreover, even if it is correct, the new ripeness doctrine propounded by the Court is irrelevant to the case at hand.
Our prior cases concerning anticipatory challenges to agency rules do not specify when an anticipatory suit may be brought against a benefit-conferring rule, such as the INS regulations here. An anticipatory suit by a would-be beneficiary, who has not yet applied for the benefit that the rule denies him, poses different ripeness problems than a pre-enforcement suit against a duty-creating rule, see Abbott Laboratories v. Gardner, 387 U. S. 136, 148-156 (1967) (permitting pre-enforcement suit). Even if he succeeds in his anticipatory action, the would-be beneficiary will not receive the benefit until he actually applies for it; and the agency might then deny him the benefit on grounds other than his ineligibility under the rule. By contrast, a successful suit against the duty-creating rule will relieve the plaintiff immediately of a burden that he otherwise would bear.
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