OK – the lawyers will probably take me off their Christmas card lists for what I am about to say, but many of you have asked for my opinion about the governments’ response. Please note I am not a lawyer, and the lawyers will not particularly want to share their strategies or thoughts about how they will argue aspects of the case, BUT far too many of you are getting “worked up” about the case with bad takes. So – let me step through the arguments.

We have the government responses for both DV cases Ivanoff (Red Eagle Law) and Chersak (Immpact).

First, particularly in the Ivanov case, the government responses spent a lot of time focused on “standing”. Simply put, a plaintiff must show that they have been caused harm, that the defendant caused that harm, and that the court can fix that situation. Winning the standing argument is a tempting “quick win” for the government, but their arguments will fail. We have standing, that is clear.

The government next strongest position (in their assessment) is the arguments about consular non reviewability & Karimova. Those both try to keep the court out of what the government says is “their business”. They are saying that the court cannot interfere in their decision making and that by giving 221g they have made a decision protected by consular non reviewability. Those are both strong positions in other situations, but not in this case. Our case is different. It is different in several ways, first that the consular officers did NOT themselves make the decision to place everyone on 221g that was an instruction from DoS (the administrative record shows that). Second, there is lots of evidence, provided by the government that 221g is a temporary refusal that can be changed. And third, DV has a sunset date. On September 30th the program ends each year and no further issuances can happen after that. So – I have NO DOUBT that Karimova and consular non reviewability will be won by our lawyers.

Then we get to the meat of the claims – really that the pause should have and did not follow the APA, that the pauses are arbitrary and capricious and that the Trac factors (3 and 5) will show that harm is being done. Without laboring the detail, the government will lose on all those points – and they know it.

So then that brings me to a sort of surprising and unsurprising inclusion in their response which needs discussion. In both responses they include a request that the court limits the relief to plaintiffs only. That is a surprising inclusion, because it is an unnecessary request. The court generally will not do anything for anyone outside of the scope unless a class is achieved. Given time, our lawyers probably could go through the extra steps to agree a class of “all DV cases”, but why would they do that? No one is paying them to level the playing field, and arguably the plaintiffs who have paid are better off if they don’t have a level playing field. So – our lawyers won’t argue with the governments “plaintiff only” request, and the Judge won’t be a lone crusader.

That means non plaintiffs only hope is that the government get fed up with the ass kicking they are about to get and decide to remove the pauses themselves. That has always been a possible, but NOT CERTAIN outcome. But there is now evidence of a couple of cases where the government have varied their exemptions to broader groups (for example medical professionals), because of lawsuit losses. So – I still hope for that outcome but it should go without saying that you have more chance as a plaintiff than not.

So – what will happen next, well the lawyers still have some work to do to file their next rebuttals to the responses and then everything will be before the Judge. He could make a decision immediately, or he could order oral arguments. We have to wait to see the path forward and hope the process goes fast. But it will be June before we know the outcome and scheduling time is being lost.

At Red Eagles’ request, I prepared and forwarded a declaration to both sets of lawyers yesterday that explains the approximate number of cases that were made current in the last VB (about 150 cases for Nepal only), AND shows in clear terms that the government have reduced scheduling to a trickle. This is happening partly because of clear suppression of the VB, so I included a statement from the former head of the Visa office on how the VB is supposed to work. Hopefully this declaration and data will help the lawyers and also encourage some movement in the VB.