By: Michael Phulwani, Esq., David H. Nachman, Esq., and Rabindra K. Singh, Esq.

As we previously projected in our recent article/blog posting, MEHTA V. DEPT. OF STATE: WILL PLAINTIFFS BE SUCCESSFUL IN OBTAINING THE INJUNCTIVE RELIEF IN THE CLASS ACTION COMPLAINT?, the United States District Court for the Western District of Washington at Seattle on October 7, 2015, denied the Motion for Injunctive Relief (Temporary Restraining Order) by a group of high-skilled immigrants that would have forced the Department of Homeland Security (“DHS”) to accept Adjustment of Status Applications (“AOS”) as per the “Filing Date” chart contained in the originally issued October 2015 Visa Bulletin by the Department of State (“DOS”).

Without wasting too much ink (and time) discussing how the October 2015 Visa Bulletin was transformed by the DOS (when it was originally released on September 9th, 2015), and how the Priority Dates were revised only four (4) days before its effective date, this supplementary blog posting/article seeks to analyze the very important question of why the Plaintiffs in the Class Action Complaint failed to prove “Irreparable Harm” in obtaining the Injunctive Relief (TRO) from the United States District Court in Seattle.

Injunctive Relief consists of a special court order called an “injunction” which is a form of equitable relief, requiring an individual to do or not do a specific action. Because it is an extraordinary remedy, the courts utilize the injunction (or other equitable relief) in special cases where the preservation of the status quo (or taking some specific action) is required in order to prevent a possible injustice.

So what needs to be proved by a plaintiff in order to obtain Injunctive Relief? Federal Court rules set forth four (4) criteria that must be satisfied before an interlocutory or preliminary injunction can be issued: (1) likelihood of “success on the merits”; (2) potential for “irreparable harm” in the absence of an injunction; (3) “balance of the equities” or, said another way, harm to the plaintiff if the injunction is not granted versus harm to the defendant if the injunction is granted; and (4) public policy considerations. Each of these criteria must be satisfied.

We stated in our blog posting/article that:

“Even assuming that the Plaintiff in the Class Action Complaint will be able to prove the likelihood of success on the merits, proving Irreparable Harm will likely be the toughest requirement for the Plaintiffs to satisfy in order to obtain Injunctive Relief. That brings us to the next question, why?

“Irreparable harm” is defined as an injury that cannot adequately be compensated for by a monetary payment. This could be for two reasons: (1) the harm could not be measured well enough to pick a price or value; or (2) the harm might be of a kind for which money was not a socially acceptable payment. The first one can be referred as “immeasurability” and the second one as “incommensurability”.

Further, in order to obtain Injunctive Relief the Plaintiffs must also show that the harm is imminent and that the nature of the expected harm is such that an award of money damages against the Respondent, at a later date, will not make the Petitioner whole. The biggest obstacle to satisfying this requirement is that the courts often conclude that money damages are sufficient to make a Petitioner whole .

As projected by us earlier, and as confirmed by the Court that the “Plaintiffs have a slight chance of obtaining the Injunctive Relief”, the United States District Court hel