292 F. Supp. 3d 276
D.C. Cir.2018Background
- Lu, a Taiwan citizen, was selected in the Diversity Visa (DV) lottery for FY2015 but never received an interview or visa; he filed suit in May 2017 seeking an order to extend/complete processing and $60,000 in damages.
- The State Department informed Lu the FY2015 DV program was closed and that winning entries from that year were no longer eligible for processing.
- Lu alleged delays resulted from technical glitches and other events and asserted claims under the Administrative Procedure Act (APA), the Immigration and Nationality Act (INA), and the Mandamus Act.
- Statute and regulation provide that DV selectees remain eligible only through the end of the fiscal year for which they were selected and that consular officers may not issue visas after that fiscal-year deadline.
- The Government moved to dismiss for lack of subject-matter jurisdiction (mootness) and failure to state a claim; the court focused on mootness and the unavailability of the relief Lu sought.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court can order nunc pro tunc processing or extension of FY2015 DV eligibility | Lu: State could have completed interviews and the Court can equitably change/extend deadlines due to State Department delays | State: Statute/regulation bar issuance of DV after fiscal year end; no authority to issue or extend eligibility post-deadline | Court: Moot — statutory deadline bars relief; cannot order post-fiscal-year visa issuance or extension |
| Whether alleged delay gives rise to review under APA/mandamus | Lu: Agency action/delay is reviewable; seeks relief to compel action | State: Even if delay existed, relief is futile because visas cannot be issued after FY end | Court: Jurisdictional relief (mandamus/injunctive) unavailable because remedy is impossible; claims moot |
| Whether equitable tolling or equitable relief can overcome statutory deadline | Lu: Equitable tolling should apply due to technical issues, etc. | State: INA & regulations make the deadline absolute; courts lack power to equitably toll | Court: Rejected equitable tolling as a basis to grant visa; statutory bar controls |
| Whether plaintiff may recover money damages or be ordered future lottery placement | Lu: Requests $60,000 for alleged government neglect and asks to be added to future winning list | State: Sovereign immunity bars monetary relief; courts cannot order lottery selection | Court: Money damages unavailable (sovereign immunity; APA does not allow compensation) and court cannot order future lottery placement; dismissed for lack of jurisdiction |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing and jurisdictional principles)
- Coraggioso v. Ashcroft, 355 F.3d 730 (DV selectee has only right to apply, not to receive a visa)
- Mohamed v. Gonzales, 436 F.3d 79 (statutory deadline for DV program is unambiguous)
- Iddir v. INS, 301 F.3d 492 (relief is illusory once fiscal year expires)
- Nyaga v. Ashcroft, 323 F.3d 906 (statute plainly prohibits issuance after fiscal-year deadline)
- Keli v. Rice, 571 F. Supp. 2d 127 (D.D.C. — DV applicant’s delay claim moot where fiscal year expired)
- Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249 (courts may consider record facts resolving 12(b)(1) disputes)