Akash Shahi v. United States Department of S ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3171
AKASH SHAHI, et al.,
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF STATE, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 20 C 7590 — Jorge L. Alonso, Judge.
____________________
ARGUED APRIL 21, 2022 — DECIDED MAY 6, 2022
____________________
Before EASTERBROOK, ROVNER, and BRENNAN, Circuit
Judges.
EASTERBROOK, Circuit Judge. The diversity-visa program
makes as many as 55,000 visas available annually to citizens
of countries with low rates of immigration to the United
States. 8 U.S.C. §§ 1151(e), 1153(c). More than 55,000 people
apply for these visas every year, so the State Department
holds a loTery to determine priority. People in the top 55,000,
plus some others selected to ensure that enough will qualify
2 No. 21-3171
to fill out the authorized number, are invited to seek “adjudi-
cation” of their applications—that is, to submit paperwork
and sit for interviews so that the State Department can con-
firm their eligibility (such as, for example, the absence of dis-
qualifying convictions). Persons whose applications are suc-
cessfully adjudicated by the end of the fiscal year receive visas
and permanent-residence status.
The proviso “by the end of the fiscal year” is important.
Applicants “who qualify, through random selection, for a visa
under section 1153(c) of this title shall remain eligible to re-
ceive such visa only through the end of the specific fiscal year
for which they were selected.” 8 U.S.C. §1154(a)(1)(I)(ii)(II).
See also 31 U.S.C. §1102 (defining “fiscal year”); 22 C.F.R.
§42.33(d) (an approved petition “will be valid for a period not
to exceed Midnight on the last day of the fiscal year for which
the petition was approved”). This fiscal-year limit has caused
many an application to fail, because it means that bureau-
cratic inertia or foul-ups have the same effect as affirmative
decisions that applicants are ineligible.
Twenty years ago, some aliens whose aTempts to obtain
visas timed out because of delay at the agency sued, but Iddir
v. INS, 301 F.3d 492 (7th Cir. 2002), held that the fiscal-year
limit cannot be extended by a judicial order. Other circuits
have reached the same conclusion. See, e.g., Ermuraki v. Re-
naud, 987 F.3d 384, 386–87 (5th Cir. 2021); Mwasaru v. Napoli-
tano, 619 F.3d 545 (6th Cir. 2010); Mohamed v. Gonzales, 436
F.3d 79, 81 (2d Cir. 2006); Coraggioso v. Ashcroft, 355 F.3d 730,
734 (3d Cir. 2004); Nyaga v. Ashcroft, 323 F.3d 906, 916 (11th
Cir. 2003). In this suit, however, more than 180 aliens who be-
lieve that their loTery results were good enough to secure vi-
sas during Fiscal Year 2020—if they otherwise qualify—
No. 21-3171 3
contend that they are entitled to have their claims adjudicated
today notwithstanding §1154(a)(1)(I)(ii)(II) and Iddir. But the
district court dismissed the suit for lack of standing. 2021 U.S.
Dist. LEXIS 222937 (N.D. Ill. Nov. 18, 2021).
Our plaintiffs ran into trouble because, in the middle of
fiscal 2020, the World Health Organization declared that
SARS-CoV-2 and its disease, COVID-19, had become a pan-
demic. On March 20, 2020, the State Department stopped pro-
cessing all routine visa applications, a category that includes
diversity visas. Higher-priority applications, such as for dip-
lomats, medical emergencies, and medical personnel, contin-
ued to be approved. Two presidential orders (Proclamation
10014 of April 22 and Proclamation 10052 of June 22) con-
firmed the Department’s approach. Fiscal Year 2020 expired
at the end of September 2020 with plaintiffs’ applications still
in stasis. The aliens later filed this suit, joined by some U.S.
citizens and by firms that would employ the aliens if they had
permanent-residence status.
Plaintiffs seek to distinguish Iddir on the ground that it de-
nied a petition for mandamus, while they want an injunction,
a declaratory judgment, and damages. But the difference in
requested relief does not overcome the reason Iddir came out
as it did: the language of §1154(a)(1)(I)(ii)(II). If applicants “re-
main eligible to receive such visa only through the end of the
specific fiscal year for which they were selected”, then it does
not maTer what kind of relief they want. Once the fiscal year
ends, they are no longer eligible.
Nor can plaintiffs get mileage from decisions such as Brock
v. Pierce County, 476 U.S. 253 (1986), and Barnhart v. Peabody
Coal Co., 537 U.S. 149 (2003). These decisions dealt with stat-
utes requiring agencies to do things by specified dates—for
4 No. 21-3171
example, issue regulations within a year of a statute’s enact-
ment or, in Peabody Coal, to match coal companies with claims
for health benefits. The Justices held in these and similar cases
that agencies do not lose power to act just because they fail to
meet a statutory deadline. Plaintiffs want us to treat
§1154(a)(1)(I)(ii)(II) as a deadline for administrative action
and to hold that the State Department still owes them a duty
to adjudicate their visa applications. Their problem is that this
statute, unlike the ones in Peabody Coal and Pierce County, does
not set a time limit for administrative action. Indeed, it does
not impose any duty on the State Department. Instead it spec-
ifies the consequence of delay: the applicant’s eligibility for a
visa expires. A court is not authorized to substitute a different
consequence, such as belated agency action, for the one cho-
sen by Congress. A statute such as §1154(a)(1)(I)(ii)(II) im-
poses the onus of delay on the aliens. Perhaps it would have
been wiser for Congress to enact a deadline for administrative
action—for why should people lose entitlements because of
things outside their control?—but that’s not the sort of statute
on the books.
Still, plaintiffs insist, they can at least receive a declaratory
judgment. They want a court to declare that the State Depart-
ment acted unlawfully or in bad faith when it stopped pro-
cessing most visa applications in March 2020. That would be
an advisory opinion, since it would be disconnected from any
of plaintiffs’ legal entitlements.
As for money—plaintiffs want the State Department to re-
imburse their application fees plus expenses for medical ex-
ams and other documents used to support the applications—
the problem is sovereign immunity. To obtain damages from
the United States, a plaintiff needs a statute authorizing relief.
No. 21-3171 5
See, e.g., Brownback v. King, 141 S. Ct. 740, 749 (2021); United
States v. Navajo Nation, 556 U.S. 287, 289–90 (2009). The Ad-
ministrative Procedure Act does not serve that function, for
its waiver of sovereign immunity is limited to “relief other
than money damages”. 5 U.S.C. §702. Plaintiffs want compen-
sation for outlays they have made; that would be a form of
money damages, as the Supreme Court understands §702. See
Department of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999).
When a statute directs the United States to pay money, enforc-
ing that statute does not entail money damages. See Bowen v.
MassachuseNs, 487 U.S. 879 (1988). This brings us back to the
point that plaintiffs have not identified any statute requiring
the State Department to make them whole for outlays that do
not lead to visas and so seem wasted in retrospect. Plaintiffs’
request for nominal damages fails for the same reason.
We have said enough to show why the plaintiffs lose. But
we need to say more about the district court’s conclusion that
they lack standing. That is not what Iddir held. Plaintiffs in
Iddir sought a writ of mandamus to compel the State Depart-
ment to adjudicate their applications, and we held that be-
cause of §1154(a)(1)(I)(ii)(II) the aliens lack a clear entitlement
to that relief. Such an entitlement is essential to mandamus,
and the opinion in Iddir wrapped up with the statement that
the district court lacked “mandamus jurisdiction” under 28
U.S.C. §1361. 301 F.3d at 501. The court did not explain why
failure on the merits implied lack of jurisdiction, and many
times the Supreme Court has held that it does not. See, e.g.,
Steel Co. v. Citizens for a BeNer Environment, 523 U.S. 83, 89
(1998); Bell v. Hood, 327 U.S. 678 (1946). A concurring judge
reached a jurisdictional conclusion by a different route; he
would have held that, because §1154(a)(1)(I)(ii)(II) blocks
6 No. 21-3171
relief, the plaintiffs’ claim was moot. 301 F.3d at 501–02
(Flaum, J., concurring).
Neither opinion in Iddir finds an absence of standing. The
district court instead relied on Taylor v. McCament, 875 F.3d
849 (7th Cir. 2017). Taylor dealt with a class of visas (the U visa)
that is limited to 10,000 a year. Plaintiffs maintained that be-
cause in some years the State Department did not issue any U
visas, and a long queue had developed (applications for U vi-
sas, unlike applications for diversity visas, roll over from one
year to the next), a court should order it to issue 80,000 visas
in a single year to clear the backlog. We held that this relief
was forbidden by statute. Our opinion characterized this as a
lack of standing, because the limit on the annual number of U
visas meant that the plaintiffs’ injury was not redressable. The
opinion in Taylor implied that this is what both of the opinions
in Iddir had been geTing at, which is what led the district court
to dismiss the current suit for lack of standing.
We shall not try to conceal our skepticism about the juris-
dictional characterizations of the dispositions in both Iddir
and Taylor. All three of these opinions (two in Iddir and one in
Taylor) use the fact that statutes foreclose relief as a reason to
find a lack of jurisdiction. Yet plaintiffs lose all the time with-
out having their suits dismissed for lack of jurisdiction. The
Supreme Court insists that jurisdictional dismissals be limited
to statutes that speak in jurisdictional terms. See, e.g., Boechler,
P.C. v. CIR, No. 20–1472 (U.S. Apr. 21, 2022) (collecting au-
thority). Section 1361, the mandamus statute, does not con-
cern jurisdiction at all; it authorizes a particular kind of rem-
edy. Jurisdiction in Iddir rested on 28 U.S.C. §1331 (federal
question) and §1346(a)(2) (United States as defendant).
No. 21-3171 7
Section 1154(a)(1)(I)(ii)(II) does not contain the word “juris-
diction” or subtract from jurisdiction granted elsewhere.
And it is hard to see how Iddir could have been dismissed
as moot. “A case becomes moot only when it is impossible for
a court to grant any effectual relief whatever to the prevailing
party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (cleaned up).
“As long as the parties have a concrete interest, however
small, in the outcome of the litigation, the case is not moot.”
Ibid. The plaintiffs in Iddir had a concrete stake in the outcome,
and relief was possible. A court could have ordered the State
Department to adjudicate the visa applications after the fiscal
year ended. The problem was not impossibility but the fact
that plaintiffs did not have a right to that relief. The same can
be said about standing: a court could redress plaintiffs’ injury
by ordering the State Department to adjudicate their applica-
tions. The problem is not impossibility but the lack of an enti-
tlement. In other words, the plaintiffs in Iddir and Taylor lost
on the merits, just as the plaintiffs in this case have done.
Any doubt about whether a court can order relief of the
sort that plaintiffs want is dispelled by the fact that a court has
done so. The alien plaintiffs are members of the class in Gomez
v. Trump, 490 F. Supp. 3d 276 (D. D.C. 2020), which ordered
the State Department to “reserve” about 9,000 visas for people
whose applications lapsed on September 30, 2020. These ap-
plications apparently would be adjudicated in 2022 or even
later, despite the statutory language. The district court stayed
its order to the extent that it requires belated adjudication,
and the case is before the D.C. Circuit on the State Depart-
ment’s appeal. The Department does not appear to contend
that Gomez is moot or that the class lacks standing; instead the
8 No. 21-3171
Department contends that plaintiffs lose on the merits, given
§1154(a)(1)(I)(ii)(II). And that seems to us the right issue.
Still, both Iddir and Taylor announced jurisdictional hold-
ings. The other courts of appeals cited in this opinion’s third
paragraph likewise have concluded that one or another juris-
dictional obstacle prevents relief in favor of aliens who seek
belated adjudication of diversity-visa applications. Overrul-
ing the jurisdictional holdings of Iddir and Taylor would not
open the door to a decision in plaintiffs’ favor, yet it would
create a conflict among the circuits.
The difference between jurisdictional and substantive
characterizations would maTer if the State Department were
to waive or forfeit the benefit of §1154(a)(1)(I)(ii)(II). Statutory
defenses may be surrendered, while jurisdictional issues must
be resolved even if the parties ignore the question or affirma-
tively declare that the court has jurisdiction. We leave to the
future whether to revisit the jurisdictional footing of Iddir and
Taylor should the benefit of §1154(a)(1)(I)(ii)(II) be waived or
forfeited.
One last comment. Because the alien plaintiffs are mem-
bers of the class certified in Gomez, they will receive the benefit
of that decision should it be affirmed. Our opinion in Iddir
suggested that it might be possible to disregard
§1154(a)(1)(I)(ii)(II) if the court awards relief before the end of
a fiscal year, even if the implementation of that relief would
come later. 301 F.3d at 501 n.2. The district court in Gomez
acted on September 30, 2020, the last day of FY 2020. The D.C.
Circuit (and, if necessary, the Supreme Court) will have to de-
cide whether the date of judicial action makes a difference. We
do not tackle that question today, for this suit was not filed
No. 21-3171 9
until after the end of FY 2020. If plaintiffs are to obtain any
relief, it must come in Gomez.
AFFIRMED