UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANDI GJOCI, et al.,
Plaintiffs,
v. Case No. 1:21-cv-00294-RCL
DEPARTMENT OF STATE, etal.,
Defendants.
MEMORANDUM OPINION
Plaintiffs are individuals hoping to receive a diversity visa, a document that will permit
them to travel to a port of entry and request permission to enter the United States. See Gomez v.
Trump, 485 F. Supp. 3d 145, 158 (D.D.C. 2020); 8 U.S.C. § 1201(h). They were selected out of a
highly competitive lottery and, by statute, will remain eligible to receive a visa until September
30, 2021. See Almaqrami v. Pompeo, 933 F.3d 774, 776-77 (D.C. Cir. 2019). In this case,
plaintiffs accuse defendants-federal government entities charged with administering the diversity
visa program-of unlawfully suspending diversity-visa processing. See, e.g., ECF No. 1 1 391 ,
393. They filed their complaint on February 1, 2021. Id. at 1.
Defendants concede that-at the time the complaint was filed-diversity visa applications
were not being processed. See ECF No. 20 at 12. But after the complaint was filed, the regime
for processing diversity visas changed. On February 24, 2021, President Biden revoked former-
President Trump's Presidential Proclamations on which the suspension of visa processing was
based. See Proclamation No. 10149, 86 Fed. Reg. 11,847 (Feb. 24, 2021). Defendants then began
processing diversity visas again under new guidance that they say is aimed at protecting the health
and safety of their employees and managing resources during the ongoing COVID-19 pandemic.
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See, e.g., ECF No. 20 at 19; ECF 20-1 at 11, 15. And while the parties dispute whether defendants'
pandemic guidance from 2020 (called "Diplomacy Strong" and "Mission Critical") still governs
plaintiffs' application processing, see, e.g., ECF No. 20 at 22; ECF No. 22 at 19, it is not disputed
that diversity visa applications are currently being processed, ECF No. 22 at 8, 24-27 .
Despite these changes, on April 11, 2021, plaintiffs moved for a "preliminary and/or
permanent injunction" asking the Court to declare unlawful or enjoin defendants' policies that
resulted in the suspension of the program. ECF No. 6. They argue that preliminary relief is
necessary because the fiscal year deadline to process these applications (September 30) is
approaching. E.g., id. at 15. They also propose additional or alternative equitable remedies, like
tolling of the September 30, 2021 statutory deadline. Id. at 28-31.
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A plaintiffs request for preliminary injunctive relief must mirror the allegations and relief
sought in the complaint. See De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945)
("A preliminary injunction is [] appropriate to grant intermediate relief of the same character as
that which may be granted finally." (emphasis added)). As another member of this Court
explained, "a proper motion for a preliminary injunction seeks to enjoin the action that
the complaint alleges is unlawful prior to the completion of the litigation, and without such a
connection between the claim and requested injunction, there is simply no jurisdictional basis for
the Court to grant preliminary relief." Bird v. Barr, No. 19-CV-1581, 2020 WL 4219784, at *2
(D.D.C. July 23, 2020) (collecting cases).
Applying these principles, the Court must DISMISS WITHOUT PREJUDICE plaintiffs'
motion for a preliminary injunction. The complaint's theory of harm is explicit: defendants
"suspended" the diversity visa program for the 2021 fiscal year by "unlawfully implement[ing] the
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Proclamations and the [Immigration and Nationality Act] to preclude the issuance of any
[diversity] visa while the Proclamations and Diplomacy Strong Framework are in effect." ECF
No. 1 ~ 391 (emphasis added). Indeed, the complaint has scores ofreferences to the "suspension"
of the diversity visa program, see, e.g., id.~~ 356, 391, 393, which is alleged to be "ongoing,"
id. ~ 385. But the theory on which plaintiffs now base their preliminary-injunction motion is
different-plaintiffs acknowledge that diversity visas are being processed, see, e.g., ECF No. 22
at 26-27, but argue that the current processing rate is insufficient so it must be governed by the
challenged policies, ECF No. 6 at 9-10. They also allude to the lingering harm from the former
suspension of diversity visa processing. See, ECF No. 22 at 21, 29. The "disconnect between the
underlying claims in the lawsuit and the alleged basis for preliminary relief' is glaring. Bird, 2020
WL 4219784, at *3.
The Court is instructed by the Supreme Court's analysis in cases that involve alterations to
the challenged legal regime after the suit is initiated. In NY State Rifle & Pistol Assoc., Inc.
(NYSRPA) v. City of New York, 140 S. Ct. 1525 (2020), the Court not only declined to consider a
challenge to a repealed restriction on firearms transportation (which was moot), but it also declined
to consider the parties' dispute about whether the subsequent new rule might still infringe the
petitioners' rights. Id. The Court explained that
in instances where the mootness is attributable to a change in the
legal framework governing the case, and where the plaintiff may
have some residual claim under the new framework that was
understandably not asserted previously, our practice is to vacate the
judgment and remand for further proceedings in which the parties
may, if necessary, amend their pleadings or develop the record more
fully.
Id. (quoting Lewis v. Continental Bank Corp., 494 U.S. 4 72, 482-483 (1990) (internal citations
omitted). Similarly, the Court in Fusari v. Steinberg, 419 U.S. 379 (1975), vacated and remanded
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a district court's decision in light of major changes to the challenged statutory framework. Id. at
390. The Court did so because (1) the changes had the potential to "alter significantly the character
of the system considered by the District Court," id. at 386-87 (emphasis added); (2) it was unclear
how the new procedures would operate, id. at 388-89; and (3) the Court was "unable meaningfully
to assess the issues in th[e] appeal on the present record," id. at 387.
The parties dispute whether this case is moot, but the Court need not reach the issue of
mootness today. Defendants have "alter[ed] significantly" the character of the diversity visa
processing regime because processing has resumed. Id. at 386. The complaint contains no
allegations as to why the current regime-in which some visa processing is ongoing- is
inadequate. This makes sense considering that these factual developments transpired after the
complaint was filed. But the mismatch between the request for injunctive relief and the complaint
complicates the Court's ability to "meaningfully [] assess" plaintiffs' entitlement to injunctive
relief. Id. at 387. To the extent that plaintiffs are really bringing a "residual claim," concerning
the former suspension of diversity visa processing, NYSRPA, 140 S. Ct. 1525 (citation omitted),
these harms are not contemplated in the complaint-which was filed before processing resumed.
If plaintiffs want to challenge lingering harms or the current processing regime, they must amend
their complaint. See Bird, 2020 WL 4219784, at *2.
For these reasons, the Court will DISMISS WITHOUT PREJUDICE the motion for a
preliminary or permanent injunction by separate Order.
Date: - - - - - - - - - Royce C. Lamberth
United States District Judge
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