UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
USHA SAGARWALA, : : Plaintiff, : Civil Action No.: 18-2860 (RC) : v. : Re Document No.: 2 : L. FRANCIS CISSNA, : : Defendant. :
MEMORANDUM OPINION
DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Usha Sagarwala is a citizen of India who has lived in the United States since
2012 on an H-1B visa, a status granted to foreign citizens employed in “specialty occupation[s].”
8 U.S.C. § 1101(a)(15)(H)(i)(B). But when Sagarwala sought to change jobs in 2018, the United
States Citizenship and Immigration Services (“USCIS”) concluded that her new position did not
constitute a “specialty occupation” and denied her prospective new employer’s petition to extend
her visa. In this lawsuit brought against USCIS’s Director, Sagarwala argues that the denial of
the H-1B petition violated the Administrative Procedure Act (“APA”). See 5 U.S.C. § 706.
Presently before the Court is Sagarwala’s motion for a preliminary injunction that would, for the
duration of the lawsuit, grant her all of the benefits she would have received if the visa petition
had been granted. As explained below, the Court denies this motion without taking a position on
the merits of Sagarwala’s underlying APA claim, because irrespective of the merits, Sagarwala
has failed to substantiate her allegations of irreparable harm with specific factual information.
Injunctive relief is thus inappropriate at this juncture. Before turning to the preliminary injunction motion, however, the Court must first briefly
address a jurisdictional challenge that the USCIS Director has raised. The Director contends that
Sagarwala lacks standing to challenge the denial of the H-1B petition because she was merely
the beneficiary of the petition, which her prospective new employer submitted on her behalf.
According to the Director, because Sagarwala was not the party who actually submitted the
petition, she lacks a sufficient personal stake in the outcome of this case to invoke federal court
jurisdiction. But this Court has already rejected a similar argument in another case and held that
a visa beneficiary has standing to bring a judicial challenge to USCIS’s denial of an H-1B
petition submitted on his or her behalf. See Stellar IT Sols., Inc. v. USCIS, No. 18-2015, 2018
WL 6047413, at *5 (D.D.C. Nov. 19, 2018). Like the plaintiff in that case, Sagarwala has
suffered an injury-in-fact—the loss of her lawful ability to work in this country—that is traceable
to USCIS’s denial of the petition and redressable by a favorable ruling from this Court. She
therefore has standing. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)
(general Article III standing requirements); Mantena v. Johnson, 809 F.3d 721, 731 (2d Cir.
2015) (holding that foreign citizen had standing to challenge revocation of I-140 petition that her
employer filed on her behalf); Kurapati v. USCIS, 775 F.3d 1255, 1259–60 (11th Cir. 2014)
(same). 1
1 The Director further argues that, even if Sagarwala has Article III standing, she still is not within the “zone of interests” that the APA protects in this context. The zone of interests test is irrelevant for standing, though, and is not a jurisdictional consideration. See, e.g., Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312, 319 (D.C. Cir. 2015) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125–128 (2014)). Rather, zone of interests is “a merits issue.’” Id. (quoting United States v. Emor, 785 F.3d 671, 677 (D.C. Cir. 2015)). As the Court already said, it is taking no position on the merits of this case at this time, but the Court does note that other courts have rejected the argument that a visa beneficiary falls outside the zone of interests protected by the visa petition process. See, e.g., Kurapati, 775 F.3d at 1260–61 (11th Cir. 2014); Patel v. USCIS, 732 F.3d 633, 636–37 (6th Cir. 2013).
2 With that out of the way, the Court now turns to the familiar preliminary injunction
standard. “A party seeking a preliminary injunction must make a ‘clear showing that four
factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the
absence of preliminary relief, a balance of the equities in its favor, and accord with the public
interest.’” League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016)
(quoting Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)). For years,
courts in this circuit weighed these factors through application of a “sliding-scale” approach,
under which “a strong showing on one factor could make up for a weaker showing on another.”
Id. at 7 (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). But the validity of that
approach is now in doubt following the Supreme Court’s decision in Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7 (2008). See, e.g., Sherley, 644 F.3d at 392–93. The
D.C. Circuit has “suggested, without deciding, that Winter should be read to abandon the sliding-
scale analysis in favor of a ‘more demanding burden’ requiring plaintiffs to independently
demonstrate both a likelihood of success on the merits and irreparable harm.” Standing Rock
Sioux Tribe v. U.S. Army Corps of Eng’rs, 205 F. Supp. 3d 4, 26 (D.D.C. 2016) (citing Sherley,
644 F.3d at 392–93; Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir.
2009)).
And even before Winter, courts in this circuit consistently stressed that “a movant must
demonstrate ‘at least some injury’ for a preliminary injunction to issue.” Chaplaincy of Full
Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting CityFed Fin. Corp. v.
OTS, 58 F.3d 738, 747 (D.C. Cir. 1995)). Thus, “if a party makes no showing of irreparable
injury, the court may deny the motion without considering the other factors.” Henke v. Dep’t of
Interior, 842 F. Supp. 2d 54, 59 (D.D.C. 2012) (quoting CityFed Fin. Corp., 58 F.3d at 747); see
3 also Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (“A movant’s failure to show any
irreparable harm is . . . grounds for refusing to issue a preliminary injunction, even if the other
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
USHA SAGARWALA, : : Plaintiff, : Civil Action No.: 18-2860 (RC) : v. : Re Document No.: 2 : L. FRANCIS CISSNA, : : Defendant. :
MEMORANDUM OPINION
DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Usha Sagarwala is a citizen of India who has lived in the United States since
2012 on an H-1B visa, a status granted to foreign citizens employed in “specialty occupation[s].”
8 U.S.C. § 1101(a)(15)(H)(i)(B). But when Sagarwala sought to change jobs in 2018, the United
States Citizenship and Immigration Services (“USCIS”) concluded that her new position did not
constitute a “specialty occupation” and denied her prospective new employer’s petition to extend
her visa. In this lawsuit brought against USCIS’s Director, Sagarwala argues that the denial of
the H-1B petition violated the Administrative Procedure Act (“APA”). See 5 U.S.C. § 706.
Presently before the Court is Sagarwala’s motion for a preliminary injunction that would, for the
duration of the lawsuit, grant her all of the benefits she would have received if the visa petition
had been granted. As explained below, the Court denies this motion without taking a position on
the merits of Sagarwala’s underlying APA claim, because irrespective of the merits, Sagarwala
has failed to substantiate her allegations of irreparable harm with specific factual information.
Injunctive relief is thus inappropriate at this juncture. Before turning to the preliminary injunction motion, however, the Court must first briefly
address a jurisdictional challenge that the USCIS Director has raised. The Director contends that
Sagarwala lacks standing to challenge the denial of the H-1B petition because she was merely
the beneficiary of the petition, which her prospective new employer submitted on her behalf.
According to the Director, because Sagarwala was not the party who actually submitted the
petition, she lacks a sufficient personal stake in the outcome of this case to invoke federal court
jurisdiction. But this Court has already rejected a similar argument in another case and held that
a visa beneficiary has standing to bring a judicial challenge to USCIS’s denial of an H-1B
petition submitted on his or her behalf. See Stellar IT Sols., Inc. v. USCIS, No. 18-2015, 2018
WL 6047413, at *5 (D.D.C. Nov. 19, 2018). Like the plaintiff in that case, Sagarwala has
suffered an injury-in-fact—the loss of her lawful ability to work in this country—that is traceable
to USCIS’s denial of the petition and redressable by a favorable ruling from this Court. She
therefore has standing. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)
(general Article III standing requirements); Mantena v. Johnson, 809 F.3d 721, 731 (2d Cir.
2015) (holding that foreign citizen had standing to challenge revocation of I-140 petition that her
employer filed on her behalf); Kurapati v. USCIS, 775 F.3d 1255, 1259–60 (11th Cir. 2014)
(same). 1
1 The Director further argues that, even if Sagarwala has Article III standing, she still is not within the “zone of interests” that the APA protects in this context. The zone of interests test is irrelevant for standing, though, and is not a jurisdictional consideration. See, e.g., Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312, 319 (D.C. Cir. 2015) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125–128 (2014)). Rather, zone of interests is “a merits issue.’” Id. (quoting United States v. Emor, 785 F.3d 671, 677 (D.C. Cir. 2015)). As the Court already said, it is taking no position on the merits of this case at this time, but the Court does note that other courts have rejected the argument that a visa beneficiary falls outside the zone of interests protected by the visa petition process. See, e.g., Kurapati, 775 F.3d at 1260–61 (11th Cir. 2014); Patel v. USCIS, 732 F.3d 633, 636–37 (6th Cir. 2013).
2 With that out of the way, the Court now turns to the familiar preliminary injunction
standard. “A party seeking a preliminary injunction must make a ‘clear showing that four
factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the
absence of preliminary relief, a balance of the equities in its favor, and accord with the public
interest.’” League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016)
(quoting Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)). For years,
courts in this circuit weighed these factors through application of a “sliding-scale” approach,
under which “a strong showing on one factor could make up for a weaker showing on another.”
Id. at 7 (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). But the validity of that
approach is now in doubt following the Supreme Court’s decision in Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7 (2008). See, e.g., Sherley, 644 F.3d at 392–93. The
D.C. Circuit has “suggested, without deciding, that Winter should be read to abandon the sliding-
scale analysis in favor of a ‘more demanding burden’ requiring plaintiffs to independently
demonstrate both a likelihood of success on the merits and irreparable harm.” Standing Rock
Sioux Tribe v. U.S. Army Corps of Eng’rs, 205 F. Supp. 3d 4, 26 (D.D.C. 2016) (citing Sherley,
644 F.3d at 392–93; Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir.
2009)).
And even before Winter, courts in this circuit consistently stressed that “a movant must
demonstrate ‘at least some injury’ for a preliminary injunction to issue.” Chaplaincy of Full
Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting CityFed Fin. Corp. v.
OTS, 58 F.3d 738, 747 (D.C. Cir. 1995)). Thus, “if a party makes no showing of irreparable
injury, the court may deny the motion without considering the other factors.” Henke v. Dep’t of
Interior, 842 F. Supp. 2d 54, 59 (D.D.C. 2012) (quoting CityFed Fin. Corp., 58 F.3d at 747); see
3 also Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (“A movant’s failure to show any
irreparable harm is . . . grounds for refusing to issue a preliminary injunction, even if the other
three factors entering the calculus merit such relief.”). The movant’s burden is also a heavy one:
The D.C. Circuit “has set a high standard for irreparable injury,” Chaplaincy of Full Gospel
Churches, 454 F.3d at 297, and a “prospective injury that is sufficient to establish standing . . .
does not necessarily satisfy” that standard, Cal. Ass’n of Private Postsecondary Schs. v. DeVos
(CAPPS), 344 F. Supp. 3d 158, 170 (D.D.C. 2018). Instead, the “injury must be unrecoverable;
it must be ‘both certain and great; [and] it must be actual and not theoretical.’” Id. (alteration in
original) (quoting Wis. Gas. Co. v. Fed Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C.
Cir. 1985)).
The general rule is that “economic loss does not, in and of itself,” suffice. Air Trans.
Ass’n of Am., Inc. v. Exp.-Imp. Bank of the U.S., 840 F. Supp. 2d 327, 335 (D.D.C. 2012)
(quoting Wis. Gas. Co., 758 F.2d at 674). A narrow exception to this rule might exist in cases,
such as this one, where the allegedly offending party is a government entity that enjoys sovereign
immunity from claims for money damages. See CAPPS, 344 F. Supp. 3d at 170 (“To be sure,
economic loss sustained due to a federal administrative action is typically ‘uncompensable’ in
the sense that federal agencies enjoy sovereign immunity, and the wavier of sovereign immunity
in the APA does not reach damages claims.”); 5 U.S.C. § 702 (authorizing actions “seeking relief
other than money damages”). But even in those cases, damages are not per se irreparable.
Otherwise the irreparable harm requirement would be virtually nonexistent in cases against the
government: “Any movant that could show any damages against an agency with sovereign
immunity—even as little as $1—would satisfy the standard.” Air Transport Ass’n of Am., 840 F.
Supp. 2d at 335.
4 For this reason, to be legally cognizable, “an asserted ‘economic harm’ must ‘be
significant, even where it is irretrievable because a defendant has sovereign immunity.’”
CAPPS, 344 F. Supp. 3d at 170 (emphasis added) (quoting Air Transp. Ass’n of Am., 840 F.
Supp. 2d at 335). “[T]he loss ‘must . . . be serious in terms of its effect on the plaintiff.’” Id.
(omission in original) (quoting Gulf Oil Corp. v. Dep’t of Energy, 514 F. Supp. 1019, 1026
(D.D.C. 1981)). In this context, “‘broad conclusory statements’ about the likelihood of harm”
are not enough either. Guttenberg v. Emery, 26 F. Supp. 3d 88, 102 (D.D.C. 2014) (quoting
Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008)). The movant must instead
“substantiate the claim that irreparable injury is likely to occur.” CAPPS, 344 F. Supp. 3d at 171
(internal quotation marks omitted) (quoting Wis. Gas. Co., 758 F.2d at 674).
Here, Sagarwala’s claimed injuries all arise out of economic harm; her motion does not
allege that she is now legally prohibited from residing in the United States. 2 Cf. Stellar IT, 2018
WL 6047413, at *11 (finding that plaintiff who was, as a result of H-1B denial, “without legal
status at this moment and could, by law, be placed in removal proceedings at any time” had
established irreparable harm). Sagarwala instead contends that, because she cannot legally work
in this country without H-1B status, she is currently unable to afford to pay her mortgage and for
other necessities. She claims that she will thus have no choice but to return, with her daughter,
2 On April 16, 2019, four months after filing her motion for preliminary injunction, Sagarwala filed a notice with the Court indicating for the first time that, as a result of the H-1B denial, she will be legally prohibited from residing in the United States beginning on April 30, 2019. See ECF No. 19. As this notice is devoid of detail or legal support, and the USCIS Director has not yet had an opportunity to respond to it, the Court declines to consider it at this time. The Court will, however, permit Sagarwala to renew her motion for preliminary injunction based on this new claimed harm if she so chooses. Of course, such a renewed motion would be held to the standards articulated in this opinion: to prevail, Sagarwala would need to substantiate the asserted harm with specific facts.
5 to India, where she will be unable to find work that pays enough to keep her house and car in the
United States while also covering her living expenses in India.
The Court is sensitive to the apprehensions Sagarwala may be experiencing as a result of
her loss of H-1B status, but the problem for purposes of her motion for preliminary injunction is
that she has provided virtually no specific factual information to substantiate her claim. The only
piece of evidence that Sagarwala has submitted on this issue is a short declaration that focuses
mostly on what will happen if she is forced to go back to India. The declaration says little about
why Sagarwala would need to leave in the first place, though—much less why she would need to
leave imminently. The declaration states only that she “rel[ies] on [her] salary to pay” her $3,711
monthly mortgage and other expenses; it does not specify how much she relies on it. Decl. of
Usha Sagarwala ¶ 7, ECF No. 2-2. Indeed, the declaration provides no information whatsoever
about Sagarwala’s household income (she is married) or her current financial situation. See id.
¶¶ 5–8. The Court of course understands that the loss of Sagarwala’s salary would naturally
impact her family’s economic circumstances, but she cannot meet her burden without “specific
details regarding the extent” of that impact. CAPPS, 344 F. Supp. 3d at 171 (quoting Nat’l Ass’n
of Mortg. Brokers v. Bd. of Governors of the Fed. Res. Syst., 773 F. Supp. 2d 151, 181 (D.D.C.
2011)). Only with such specific details can the Court know the significance of the injury “in
terms of its effect” on Sagarwala. Air Transport Ass’n of Am., 840 F. Supp. 2d at 334 (quoting
Hi–Tech Pharmacal Co. v. FDA, 587 F. Supp. 2d 1, 11 (D.D.C. 2008)). And only with such
details can the Court be confident that Sagarwala’s injury is so certain and so imminent that there
is a “clear and present need for extraordinary equitable relief to prevent [the] harm.” GEO
Specialty Chems., Inc. v. Husisian, 923 F. Supp. 2d 143, 147 (D.D.C. 2013) (quoting Power
Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C. 2005)).
6 Absent specific details, all the Court has here are “[b]are allegations of what is likely to
occur”—which are “of no value” on consideration of a motion for preliminary injunction.
CAPPS, 344 F. Supp. 3d at 171 (alteration in original) (quoting Wis. Gas. Co., 758 F.2d at 674).
Sagarwala has thus failed to make any showing of irreparable injury, and the Court concludes
that injunctive relief is inappropriate without considering the other relevant factors. See, e.g.,
Chaplaincy of Full Gospel Churches, 454 F.3d at 297. Sagarwala’s motion for preliminary
injunction is accordingly DENIED. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: April 16, 2019 RUDOLPH CONTRERAS United States District Judge