Bade v. Department of State
Civil Action No. 2021-1678
| D.D.C. | Aug 4, 2021Background
- Plaintiffs are selectees of the Diversity Visa program (DV 2020/2021; the preliminary-injunction motion is brought by DV‑2021 selectees) who seek permission to complete consular visa interviews via videoconference instead of in person.
- They moved for a preliminary injunction enjoining the State Department’s in‑person interview requirement, alleging violations of the Administrative Procedure Act (APA), the Fifth Amendment Due Process Clause, and the Government Paperwork Elimination Act (GPEA).
- Plaintiffs asserted two primary injuries: (1) an increased risk that their visas will not be finally adjudicated because COVID‑19 protocols limit in‑person capacity, and (2) an increased risk of contracting COVID‑19 from travel and in‑person interviews.
- The court applied the D.C. Circuit’s standing framework for increased‑risk injuries and Winter’s preliminary‑injunction standard, including the requirement to show substantial likelihood of standing.
- The court found Plaintiffs failed to show imminent, individualized injuries (standing), and that their legal claims were unlikely to succeed on the merits, so it denied the preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (increased risk of non‑adjudication) | In‑person requirement plus limited consular capacity makes some selectees likely to have visas unadjudicated | Plaintiffs have not identified any particular individual who will imminently lose adjudication; harms are speculative/aggregate | Plaintiffs failed to show a substantial likelihood of standing for this injury |
| Standing (COVID‑19 infection risk) | Traveling for in‑person interviews creates a substantial risk of infection (Delta variant) | Plaintiffs gave only generalized pandemic statistics and failed to show an individualized, substantial probability of infection | Plaintiffs failed to show a substantial likelihood of standing for this injury |
| APA / Agency discretion to require in‑person interviews | In‑person rule is arbitrary and capricious and inconsistent with statute permitting electronic procedures | 8 U.S.C. §1202 delegates form/manner rules to State Dept.; statute contemplates in‑person signature in the presence of consular officer; regulation is within agency discretion | Court held plaintiffs are unlikely to succeed on the APA claim; agency regulation is presumptively lawful under Chevron |
| Due Process & GPEA | Denial of video interviews violates Fifth Amendment and GPEA electronic‑signature provisions | DV selectees are nonresident aliens without sufficient U.S. contacts for Fifth Amendment protection; GPEA not violated because electronic applications are accepted and not deprived of legal effect | Court held due process claim unlikely to succeed and GPEA claim unsupported |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (preliminary‑injunction standards)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (agency deference)
- Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905 (D.C. Cir.) (standing for increased‑risk injuries)
- Public Citizen, Inc. v. National Highway Traffic Safety Admin., 489 F.3d 1279 (D.C. Cir.) (limits on aggregating speculative claims for standing)
- Jifry v. F.A.A., 370 F.3d 1174 (D.C. Cir.) (constitutional protections for nonresident aliens)
- People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17 (D.C. Cir.) (alien contacts and constitutional protections)
- United States v. Verdugo‑Urquidez, 494 U.S. 259 (constitutional limits for nonresident aliens)