By: Michael Phulwani, Esq., David H. Nachman, Esq., and Rabindra K. Singh, Esq.
Without wasting too much ink (and time) discussing how the October 2015 Visa Bulletin was transformed by the Department of State (DOS) when it was originally released on September 9th, 2015, and how the Priority Dates (PD) were revised only four (4) days before its effective date, this article seeks to analyze the very important question of whether the Plaintiffs in the Class Action Lawsuit can obtain Injunctive Relief from the United States District Court for the Western District of Washington 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 for 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.
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 .
Before we discuss, why the Plaintiffs have a slight chance to obtain Injunctive Relief, let’s pause for a bit and analyze this through the testimony of J.K. Rowling when she had sued the author of the “Harry Porter Lexicon.” In her testimony, Ms. Rowling stated that the publication of the lexicon would destroy her “will or heart to continue with writing” a Harry Potter encyclopedia of her own. She did not testify that absent an injunction she would not write her own encyclopedia because the defendant would have undercut her market and she would earn nothing from her work, even though she had plenty of money already. Thus, basing an argument for Injunctive Relief primarily on money damages will not win the day in Court.
Let’s analyze why proving Irreparable Harm would be an uphill battle for the Plaintiffs in the Class Action Complaint for obtaining the Injunctive Relief. To begin, first and foremost it is worth noting the first Preliminary Statement of the Class Action Lawsuit that was filed, Paragraph 9, and the Portion, Parties, which endeavors to explain the financial hardships suffered by each Plaintiff who prepared to submit the Adjustment of Status (AOS) Application.