E.B. v. U.S. DEPARTMENT OF STATEE.B. v. U.S. DEPARTMENT OF STATE
MEMORANDUM OPINION
In this lawsuit, three foreigners and two of their U.S.-based relatives allege that the State Department issued a rule unlawfully by not following the ordinary notice-and-comment rulemaking procedures. The rule requires that any individual who seeks to participate in the annual diversity visa lottery must possess a valid passport from
I. Background
A. Diversity Visa Program
The
Although the precise number of selectees fluctuates each year, the odds of any individual registrant being selected are long. For example, for Fiscal Year 2018, 115,968 individuals were selected from 14,692,258 registrants. U.S. Department of State, DV 2018 - Selected Entrants, https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-program-entry/dv 2018-selected-entrants.html (last visited Nov. 4, 2019). Thus, any registrant had about a 0.8% chance of being selected. This year, registration opened on October 2, 2019 and will close on November 5, 2019. U.S. Department of State, Instructions for the 2021 Diversity Immigrant Visa Program (DV-2021).
B. The Passport Rule
The Secretary of State may issue regulations governing the information that lottery registrants must provide to the State Department.
The State Department promulgated the Passport Rule as an interim final rule, and so it became effective upon publication.
C. The Instant Case
In late September 2019, Plaintiffs sued the State Department and Michael Pompeo in his official capacity as Secretary of State, alleging that their promulgation of the Passport Rule without prior notice-and-comment rulemaking was unlawful under the APA. ECF No. 1 (“Compl.“). Plaintiffs allege that the APA‘s foreign affairs exception does not apply to the Passport Rule.
Plaintiffs moved for a preliminary injunction barring enforcement of the Passport Rule. ECF No. 3; see also ECF No. 3-2 (“PI Mem.“). They argue that obtaining a passport in time to participate in this year‘s lottery is both cost and time prohibitive. PI Mem. at 2, 8–9. Thus, without preliminary relief, “Applicant Plaintiffs will suffer irreparable harm by losing the opportunity to apply for a diversity visa in this year‘s lottery.”
II. Legal Standard
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction
III. Analysis
A. Standing
As a threshold matter, Defendants challenge Plaintiffs’ standing. To show standing for purposes of a preliminary injunction, Plaintiffs must show that it is substantially likely that at least one of them “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016); Americans for Safe Access v. Drug Enf‘t Admin., 706 F.3d 438, 443 (D.C. Cir. 2013) (noting that a court need only find that one plaintiff has standing); Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (explaining that, on a preliminary injunction, plaintiffs must show that standing is substantially likely). The standing inquiry is slightly different when a plaintiff seeks to vindicate a procedural right, such as having been unlawfully denied the opportunity to comment on a proposed rule. See Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014). Specifically, “a plaintiff asserting a procedural violation must show ‘a causal connection between the government action that supposedly required the disregarded procedure and some reasonably increased risk of injury to its particularized interest.‘” Iyengar v. Barnhart, 233 F. Supp. 2d 5, 12–13 (D.D.C. 2002) (quoting Fla. Audubon Soc‘y. v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996)). A plaintiff need not show that the agency would have acted any differently. Mendoza, 754 F.3d at 1010. Yet even in the context of a procedural injury, “the injury in fact requirement is a hard floor of Article III jurisdiction that cannot be altered by statute.” Ctr. for Biological Diversity v. Envtl. Prot. Agency, 861 F.3d 174, 183 (D.C. Cir. 2017). Once a plaintiff clears that hurdle, through, “the normal standards for immediacy and redressability are relaxed.” Mendoza, 754 F.3d at 1010.
At least one Plaintiff here is substantially likely to show standing. Applicant Plaintiff K.K., for example, must now expend additional time and money merely to enter the lottery, even if he does not win it. See, e.g., ECF No. 3-4 (“K.K. Decl.“) ¶¶ 6–13. This is enough to satisfy Article III‘s injury-in-fact
Defendants also argue that Plaintiffs may not bring their claims because they are outside the relevant zone of interests of the INA. Opp‘n at 21–24. The Court disagrees. The zone of interests test simply asks “whether a legislatively conferred cause of action encompasses a particular plaintiff‘s claim.” Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). Under the APA, “the test is not ‘especially demanding.‘” Id. at 130 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012)). This is so because the APA “permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for judicial review.” Id. To satisfy this requirement here, the Court must “look to whether [a plaintiff] fall[s] within the zone of interests sought to be protected by the substantive statute pursuant to which the [State Department] acted: the INA.” Mendoza, 754 F.3d at 1017. Applicant Plaintiff K.K. is a would-be immigrant who declares that he entered the lottery previously and seeks to do so again. K.K. Decl. ¶ 6. But the Passport Rule requires him to expend additional time and money before he may do so. Thus, he is undoubtedly “the subject of the contested regulatory action.” Clarke v. Sec. Indus. Ass‘n, 479 U.S. 388, 399 (1987). And his interests are obviously not “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Mendoza, 754 F.3d at 1017 (quoting Clarke, 479 U.S. at 399).
B. Irreparable Harm
A substantial likelihood of standing established, the Court turns to
Applicant Plaintiffs argue that the “cost and time of obtaining a passport” will effectively preclude them from applying for this year‘s lottery. PI Mem. at 12–13. They argue that “losing the opportunity to apply for a diversity visa in this year‘s lottery” would constitute irreparable harm that “cannot be subsequently redressed.”
Plaintiffs have not shown that missing the lottery this year will subject them to irreparable harm under the law of this Circuit. First, the loss of such a small chance is not sufficiently “great” to warrant a preliminary injunction. As discussed above, to warrant preliminary relief, the alleged injury must not only be “certain” but also “great.” Wisc. Gas Co., 758 F.2d at 674. Even the certain loss of a tiny—about 0.8%—chance of a desired benefit cannot suffice under this exacting standard. While “there is some appeal to the proposition that any damage, however slight, which cannot be made whole at a later time, should justify injunctive relief,” the Court cannot ignore that “some concept of magnitude of injury is implicit in the [preliminary injunction] standards.” Gulf Oil Corp. v. Dep‘t of Energy, 514 F. Supp. 1019, 1026 (D.D.C. 1981). Plaintiffs have cited no case in which a court found that the loss of such a small chance at a benefit met the irreparable harm standard, even a benefit as potentially significant as a diversity visa.
Second, the “greatness” of Plaintiffs’ injury is also undermined by the lottery‘s annual repetition. By statute, the State Department must issue diversity visas every year,
Third, at least on this record, the lack of a direct connection between the alleged injury and the Passport Rule further weakens Plaintiffs’ case for irreparable harm. An irreparable injury must “directly result from the action which the movant seeks to enjoin.” Wisc. Gas Co., 758 F.2d at 674. Applicant Plaintiffs allege that they cannot obtain a passport in time to enter the lottery because they either lack the money to do so or learned about the new requirement too late. But these obstacles, to the extent that they exist, do not “directly result” from the Passport Rule for irreparable harm purposes.5
For example, Applicant Plaintiffs E.B. and K.K. assert that they “could manage to incur the substantial costs involved to obtain a passport with the assistance of family and friends.” Compl. ¶¶ 51, 56. But they also allege that that assistance “is not available merely for [their] application for the Diversity Visa Program.”
Similarly, Applicant Plaintiffs assert that they cannot obtain passports in time to register for the lottery by November 5. Applicant Plaintiffs E.B. and Desta claim that they did not learn about the Passport Rule until September 2019.
Another court in this District recently found an insufficient causal connection between government action and alleged irreparable harm in the visa context in Feng Wang v. Pompeo, 354 F. Supp. 3d 13 (D.D.C. 2018). That case concerned the EB-5 visa program, which allows foreign immigrant investors, their spouses, and their young unmarried children to be admitted to the United States as permanent residents. Id. at 17. The annual number of EB-5 visas is limited and, because the demand for EB-5 visas outpaces the supply, prospective EB-5 immigrant investors from China must wait years for a visa. Id. at 16–19. Immigrant investor plaintiffs challenged the State Department‘s policy of counting family members towards the annual limit—which they alleged caused the long wait—as unlawful. Id. at 19. They argued that without an injunction, their children would be too old to join them by the time they obtained visas. Id. at 25–26. And as a result, they asserted, they would be irreparably harmed because their families would be separated. Id. In denying their motion for a preliminary injunction, the court found that the causal link between the government‘s policy and the potential separation of the plaintiffs’ families was not direct enough to show irreparable harm. Id. at 25–26, 28. The Court reasoned that “State‘s counting policy does not, in and of itself, cause family separation. Rather, the causal connection is between the counting policy and the choice investors face if their children age out by the time EB-5 visas become available.” Id. at 26.
In support of their irreparable harm claim, Plaintiffs cite cases that present a few distinct scenarios, but none are akin to the unusual circumstances here. They point to several cases from outside this Circuit in which courts have held that the loss of a chance to bid on a contract can constitute irreparable harm. PI Mem. at 26–27; see, e.g., Georgia by & through Ga. Vocational Rehab. Agency v. United States by & through Shanahan, 2:19-CV-00045, 2019 WL 2320878, at *9 (S.D. Ga. May 30, 2019). In Ga. Vocational Rehab. Agency, for example, the court noted that “[w]ithout a preliminary injunction, Defendants will be allowed to award the contract to another party and Plaintiffs will be unable to compete for the contract since it has been eliminated from consideration.” Id. But in that case, the loss of the chance at issue was far “greater” than the loss of the long odds Applicant Plaintiffs have in the lottery. In fact, only four parties had bid on the contract at issue there. Id. at *3. More importantly, the court found that the plaintiffs were likely to succeed on the merits of their claim that the contract should have been awarded to them in the first place. Id. at *18; see also Kansas v. United States, 171 F. Supp. 3d 1145, 1155–56, 1158–65 (D. Kan. 2016) (finding that the plaintiff—whose competitive bid would likely take priority over other bidders and who had won similar contracts in the past—was likely to succeed on the merits). And unlike the plaintiffs in those cases, Applicant Plaintiffs are not losing out on a unique opportunity because the lottery is held annually.6
Plaintiffs also refer to cases in which courts have held that the loss of a chance to take the bar exam can constitute irreparable harm. See, e.g., Enyart v. Nat‘l Conference of Bar Examiners, Inc., 630 F.3d 1153, 1166 (9th Cir. 2011). Again, the harm in those cases was “greater” than that faced by Plaintiffs here because in all likelihood those plaintiffs had far higher chances of passing the bar exam than Applicant Plaintiffs have of winning the lottery. Moreover, in those cases, courts found that the plaintiffs’ loss of a chance to take the exam would harm them in specific ways beyond mere delay.7
IV. Conclusion
For all the above reasons, the Court holds that Plaintiffs are substantially likely to have standing, but they have not shown that, absent a preliminary injunction, they will suffer irreparable harm. As a result, Plaintiffs’ motion for a preliminary injunction will be denied. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: November 4, 2019