Bade v. Department of State

• Court: District Court, District of Columbia
• Decided: March 8, 2022
• Docket: Civil Action No. 2021-1678
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) DINESH BADE et al., ) ) Plaintiffs, ) ) v. ) Case No. 21-cv-01678 (APM) ) ) DEPARTMENT OF STATE et al., ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION

Plaintiffs are selectees of the 2020 and 2021 Diversity Visa (“DV”) programs who wish to

complete the interview component of their DV applications via videoconference, which

Defendants have refused to allow. Complaint for Inj. & Decl. Relief, ECF No. 1 ¶¶ 1. The

DV 2021 selectees previously moved for a preliminary injunction to compel their preferred mode

of interview, but the court denied that motion because they failed to establish a substantial

likelihood of standing and a substantial likelihood of success on the merits. See Bade v. Dep’t of

State, No. 21-CV-01678 (APM), 2021 WL 3403938, at *2–3 (D.D.C. Aug. 4, 2021). Defendants

now seek to dismiss Plaintiffs’ claims on the same grounds they advanced for denial of the

preliminary injunction. See Defendants’ Cross-Mot. to Dismiss, ECF No. 11, Defs.’ Mem. of

P & A in Supp. of Defs.’ Cross-Mot & in Opp’n to Pls.’ Mot. for Prelim. Inj., ECF No. 11-1, at

19. For the reasons stated below, the court grants Defendants’ Motion to Dismiss for lack of

subject matter jurisdiction.

“The defect of standing is a defect in subject matter jurisdiction.” Haase v. Sessions,

835 F.2d 902, 906 (D.C. Cir. 1987). In its earlier ruling in this matter, this court held that Plaintiffs had not carried their burden of establishing a substantial likelihood of standing at preliminary

injunction stage. Specifically, the court held no Plaintiff had established an injury in fact, either

in the form of an increased risk of not receiving a diversity visa or an increased risk of contracting

COVID-19 due to the in-person interview requirement. Bade, 2021 WL 3403938, at *2–3.

The court now reaches that same conclusion, under the less stringent motion to dismiss

standard. See Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015) (stating that a

plaintiff must make a “plausible claim” of standing to survive a motion). Plaintiffs’ argument for

standing rests on the same two grounds advanced in the motion for preliminary injunction: the

denial of a remote interview, they claim, will increase (1) the likelihood of a diversity visa denial

and (2) their risk of being exposed to COVID-19. Pls.’ Resp. to Defs.’ Mot. to Dismiss & Reply

in Supp. of Request for Prelim. Inj., ECF No. 13, at 10–11. But these theories are too speculative

and nearing conjecture to constitute standing, even under a plausibility standard. See O'Shea v.

Littleton, 414 U.S. 488, 497–498 (1974) (holding that theories of standing resting on speculative

events and wholly conjectural events are insufficient to establish standing). Plaintiffs have not

plausibly alleged that the denial of a video interview will substantially increase the risk that any

particular Plaintiff will not receive a diversity visa. See Pub. Citizen, Inc. v. Nat’l Highway Traffic

Safety Admin., 489 F.3d 1279, 1293–94 (D.C. Cir. 2007) (holding that an imminence problem

arises when no specific individual is found to be at risk). Nor have they plausibly alleged that an

in-person interview for any particular Plaintiff will substantially increase his or her exposure to

COVID-19. See Bade, 2021 WL 3403938, at *2–3. Plaintiffs cannot rely on a collective theory

of standing, and they have not established that any one of them plausibly faces a substantially

increased risk of harm. For foregoing reasons, the court grants Defendants’ Motion to Dismiss. A final, appealable

order accompanies this Memorandum Opinion.

Dated: March 8, 2022 Amit P. Mehta United States District Court Judge