Red Eagle Law, Lc v. Rubio
CourtCourt of Appeals for the Ninth Circuit
Date FiledOctober 29, 2026
Docket26-6943
StatusPublished
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Full Opinion
FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RED EAGLE LAW, L.C, No. 26-6943
D.C. No.
Plaintiff - Appellee, 3:26-cv-04738-JO-VET
Southern District of California,
v.
San Diego
MARCO RUBIO, in his official capacity as ORDER
U.S. Secretary of State,
Defendant - Appellant.
Before: M. Margaret McKeown, N. Randy Smith, and Holly A. Thomas, Circuit
Judges.
PER CURIAM:
Concurrence by Judge N.R. SMITH
Under the Immigration and Nationality Act (“INA”), the U.S. Department of
State (the “Department”) is required to implement an annual program, known as the
Diversity Visa Program, to award up to 55,000 visas to individuals from countries
with low rates of immigration to the United States. 8 U.S.C. §§ 1151(e), 1153(c).
Prior to the start of each fiscal year, the Department holds a lottery through which
roughly 100,000 selectees from qualifying countries are chosen at random to apply
for visas. See id. § 1153(e)(2); 22 C.F.R. § 42.33(c); Jill Wilson, Cong. Rsch. Serv.,
The Diversity Immigrant Visa Program, CRS Rep. No. R45973 (2019) at 2. For
fiscal year 2027, however, the Department failed—without any explanation—to
open the lottery registration period, effectively canceling the 2027 Diversity Visa
Program (“DV-2027 Program”).
In August 2026, Red Eagle Law, L.C. (“Red Eagle”), an immigration law firm
whose practice includes representing selectees for the Diversity Visa Program, filed
suit, alleging that the suspension of the DV-2027 Program was arbitrary and
capricious and unlawfully withheld agency action under the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 706(1), 706(2)(A), and was ultra vires. Red
Eagle stands as the sole plaintiff in this suit; it did not join to the suit any prospective
Diversity Visa applicants, nor has it claimed to presently represent such applicants.
On October 14, 2026, the district court entered a preliminary injunction,
requiring the Department to reopen the DV-2027 Program. The court ordered the
Department to announce the registration period by October 29, 2026, open
registration by November 1, 2026, and notify selectees of their eligibility to apply
by no later than December 3, 2026. The government appealed and now moves for
an emergency stay pending appeal pursuant to Circuit Rule 27-3. As the party
requesting a stay, the government “bears the burden of showing that the
circumstances justify” a stay pending appeal. Nken v. Holder, 556 U.S. 418, 434
(2009). We grant the motion.
The government has made a strong showing that it is likely to succeed on the
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merits of this suit, because Red Eagle has not demonstrated that it is “arguably within
the zone of interests to be protected or regulated” by the Diversity Visa Program
statute. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567
U.S. 209, 224 (2012) (citation modified); see also 5 U.S.C. § 702. The purpose of
the Diversity Visa Program is to encourage immigration from countries with low
immigration rates to the United States. See 8 U.S.C. § 1153(c). Red Eagle’s
economic interest in representing selectees for the Diversity Visa Program is not
“more than marginally related to [the Diversity Visa Program’s] purposes[.]” E. Bay
Sanctuary Covenant v. Trump (East Bay), 932 F.3d 742, 768 (9th Cir. 2018).
For support, Red Eagle looks to our decision in East Bay, where we held that
nonprofit organizations providing legal representation to asylum seekers fell within
the zone of interests of the asylum statute. Statutory provisions in the INA expressly
contemplated access to pro bono legal services. Id. (citing 8 U.S.C.
§ 1158(d)(4)(A)–(B)). But unlike the asylum statute at issue in East Bay, here,
Congress did not include any provisions with respect to legal services for applicants
or selectees for the Diversity Visa Program. Cf. id. at 768 (holding that nonprofit
organizations’ interest was more than marginally related to asylum statute’s purpose
because “[w]ithin the asylum statute, Congress took steps to ensure that pro bono
legal services of the type that the Organizations provide are available to asylum
seekers”). The Diversity Visa Program simply does not “directly rely on institutions
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like [Red Eagle] to aid immigrants.” Id. at 769.
Red Eagle also urges us to rely upon the D.C. Circuit’s decision in CSL
Plasma Inc. v. U.S. Customs & Border Protection, 33 F.4th 584 (D.C. Cir. 2022),
again to no avail. In that case, the D.C. Circuit held that blood plasma companies
that depended on plasma from Mexican donors with B-1 business visas fell within
the B-1 classification’s zone of interests because the statute was created to benefit
American businesses. Id. at 587. The plasma companies were businesses benefiting
from a statute intended to benefit businesses. The same plainly cannot be said of the
Diversity Visa Program, which was enacted to encourage immigration, not generate
revenue for law firms.
We do not endorse the Department’s failure to open the lottery registration
period. Nevertheless, Red Eagle has not shown a likelihood of success on the merits
because it is not within the zone of interests of the statute and does not have a cause
of action. The emergency motion for a stay pending appeal is GRANTED. The
clerk shall in due course issue a briefing schedule for the appeal of the preliminary
injunction.
4 26-6943
FILED
Red Eagle Law, L.C. v. Rubio, No. 26-6943
OCT 29 2026
Smith, N. Randy, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Red Eagle Law also lacks Article III standing to challenge the government’s
failure to implement the 2027 DV Program. Let me explain.
The Constitution limits the federal judicial power to “Cases” and
“Controversies.” U.S. CONST. art. III, § 2, cl. 1. The Supreme Court has
“established that the irreducible constitutional minimum of standing contains three
elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). These elements
are: (1) “the plaintiff must have suffered an ‘injury in fact’—an invasion of a
legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical”; (2) “there must be a causal connection
between the injury and the conduct complained of—the injury has to be fairly
traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court”; and (3) “it must be
‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a
favorable decision.’” Id. at 560–61 (citation modified). Further, the party invoking
the jurisdiction bears the burden to establish these elements with evidence at each
stage of the proceeding. Id. at 561.
Applying these minimum requirements for standing in this case, a plaintiff
must first show an injury in fact. “An injury in fact must be ‘concrete,’ meaning
that it must be real and not abstract.” FDA v. All. for Hippocratic Med., 602 U.S.
367, 381 (2024). It “must be actual or imminent, not speculative—meaning that the
injury must have already occurred or be likely to occur soon.” Id. For an
injunction, there must be “a sufficient likelihood of future injury.” Id. However,
one cannot get standing to challenge a government action simply because one
believes the government is acting illegally or based “on an asserted right to have
the Government act in accordance with the law.” See id. (citation modified). Those
problems are the responsibilities of Congress or the President. Id. at 382.
Red Eagle Law does not bring this lawsuit on behalf of an alien who
qualifies or may qualify through random selection for a visa under § 1153(c).
Instead, Red Eagle Law, “a boutique law firm in San Diego County,” claims it has
standing (without regard to those who are the objects of the statute) based on a lost
economic benefit from prospective clients, which they may in the future acquire
but for the administration’s failure to implement the 2027 DV Program.
Thus, Red Eagle Law does not establish injury in fact: (a) Red Eagle Law’s
allegations here are at best speculative. See Clapper v. Amnesty Int’l USA, 568 U.S.
398, 414 (2013) (expressing “reluctance to endorse standing theories that rest on
speculation about the decisions of independent actors”). Under the DV Program, an
alien must first decide to register for the lottery; must then win the lottery (about
2
100,000 applications chosen out of millions); thereafter submit a written
application for an immigration visa; schedule and lastly appear before a consular
officer who (in the officer’s discretion) determines that the alien has satisfied all of
the requirements for a visa, when at best only 55,000 visas will be issued. See
Ivanov v. Trump, No. CV 26-2272 (RJL), 2026 WL 2494805, at *1–2 (D.D.C.
Aug. 25, 2026). But that process (as speculative as it is) does not end this inquiry
for Red Eagle Law. At that point, Red Eagle Law must show that the alien would
employ the services of its law firm (in San Diego) instead of proceeding pro se or
hiring another firm in the United States. Any injury (given these facts) cannot be
concrete or particularized. An injury in fact cannot be established by simply
alleging any monetary injury (however remote). Further, Red Eagle Law does not
allege that their revenue has decreased because of the government’s failure to
implement the 2027 DV Program. Instead, it merely asserts that they have not been
given the opportunity to earn additional “downstream” income from these
hypothetical clients.1 (b) While this opinion should not be read to absolve the State
1
The Supreme Court similarly rejected doctors’ alleged “downstream
economic injuries,” making it clear that a link between those injuries and FDA
regulations were “too speculative” to establish standing. The Court reasoned that
if [it] were now to invent a new doctrine of doctor standing, there would
be no principled way to cabin such a sweeping doctrinal change to
(continued...)
3
Department’s admission that it failed to follow the law, Red Eagle Law cannot
obtain standing to challenge the actions of the government simply because it
alleges the government acted illegally. See All. for Hippocratic Med., 602 U.S. at
381. Federal courts are “not a legislative assembly, a town square, or a faculty
lounge” and do not “operate as an open forum for citizens to press general
complaints about the way in which government goes about its business.” Id. at 379,
382 (citation modified). Thus, “a citizen does not have standing to challenge a
government regulation simply because the plaintiff believes that the government is
acting illegally”; “[a] citizen may not sue based only on an asserted right to have
the Government act in accordance with law”; and a citizen cannot sue “merely
because their legal objection is accompanied by a strong moral, ideological, or
policy objection to a government action.” Id. at 381 (citation modified).
Second, “[t]he plaintiff must also establish that the plaintiff ’s injury likely
1
(...continued)
doctors or other healthcare providers. Firefighters could sue to object to
relaxed building codes that increase fire risks. Police officers could sue
to challenge a government decision to legalize certain activities that are
associated with increased crime. Teachers in border states could sue to
challenge allegedly lax immigration policies that lead to overcrowded
classrooms.
All. for Hippocratic Med., 602 U.S. at 392. This case is no different and will start a
“path [that will] seemingly not end until virtually every citizen ha[s] standing to
challenge virtually every government action that they do not like.” Id.
4
was caused or likely will be caused by the defendant’s conduct.” Id. at 382. To
establish a causal connection, the Supreme Court has outlined that, “[w]hen the suit
is one challenging the legality of government action or inaction, the nature and
extent of facts that must be averred . . . or proved . . . in order to establish standing
depends considerably upon whether the plaintiff is himself an object of the action
(or forgone action) at issue.” Lujan, 504 U.S. at 561. There is no dispute that the
statute at issue, 8 U.S.C. § 1153(c), pertains to “diversity immigrants” and their
allotment of visas each fiscal year. Section 1153(c) does not pertain to law firms
representing those aliens or the profitability of those law firms at all. Therefore,
Red Eagle Law is not the object of the government’s action here. Instead, the
statute and the government’s actions relate only to the rights of aliens (third parties
to this action).
Review of the cases, (including those relied on by Red Eagle Law and the
district court to suggest Red Eagle Law has standing), confirms that the plaintiffs
in those cases were the objects of the government action, they alleged direct
economic harm, and they were not resting their claims for relief based on the
interference with the rights of third parties. See, e.g., Diamond Alternative Energy,
LLC v. EPA, 606 U.S. 100, 113–14 (2025) (finding standing for producers of
gasoline because they were the likely object of the regulation and the decrease in
5
purchases of gasoline caused economic injury); Isaacson v. Mayes, 84 F.4th 1089,
1096 (9th Cir. 2023) (finding standing because plaintiffs-physicians who were
directly affected by the Arizona statute were forced to “over-compl[y]” when
providing care “rather than risk prosecution or penalties”); Montana Shooting
Sports Ass’n v. Holder, 727 F.3d 975, 979 (9th Cir. 2013) (finding standing for
plaintiff firearm manufacturer challenging a federal firearms regulation that
conflicted with Montana firearm laws based on “an economic injury resulting from
laws explicitly prohibiting a business activity that he would otherwise engage”);
Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 855 (9th Cir.), opinion amended
on denial of reh’g, 312 F.3d 416 (9th Cir. 2002) (finding standing for trappers
challenging a California statute that restricted use of certain kinds of traps because
“the core of the trappers’ injuries is not a hypothetical risk of prosecution but
rather actual, ongoing economic harm resulting from their cessation of trapping”);
Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 61 (9th Cir. 1994)
(finding standing on behalf of a game manufacturer to challenge ordinance
revoking licensing for such games). Again, all of these cases have in common what
is missing here: the plaintiffs were the objects of the action, their injuries were not
based on downstream (or collateral injury), and their relief was not based upon the
rights of third parties.
6
The Supreme Court then continues, “[w]hen, however, as in this case, a
plaintiff’s asserted injury arises from the government’s allegedly unlawful
regulation (or lack of regulation) of someone else, much more is needed. In that
circumstance, causation and redressability ordinarily hinge on the response of the
regulated (or regulable) third party to the government action or inaction—and
perhaps on the response of others as well.” Lujan, 504 U.S. at 562. Thus, when
standing depends on the choices of independent actors, standing is “substantially
more difficult” to establish. See id. This caution from the Supreme Court makes
sense, because “harm alone normally does not warrant exercise of jurisdiction,”
when the plaintiff cannot assert his own legal rights and interests without “rest[ing]
his claim to relief on the legal rights or interests of third parties.” See Warth v.
Seldin, 422 U.S. 490, 499 (1975). There is insufficient evidence in this record that
choices of aliens have been or will be made in such a manner as to produce
causation and permit redressability. This record simply evidences the past
profitability of Red Eagle Law arising from DV cases based on only three years of
historical information. Thus, Red Eagle Law has not established a causal
connection.
As the Supreme Court said in Alliance for Hippocratic Medicine, “[t]he
second and third standing requirements—causation and redressability—are often
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‘flip sides of the same coin.’” 602 U.S. at 380 (citation omitted). “If a defendant’s
action causes an injury, enjoining the action or awarding damages for the action
will typically redress that injury. So the two key questions in most standing
disputes are injury in fact and causation.” Id. at 381. Thus, I need not address
redressability.
On reflection (after directly applying Supreme Court precedent), Red Eagle
Law’s claim of direct standing (based on its own monetary injuries) reflects merely
an attempt to circumvent third-party standing with a hypothetical client (a claim,
which the Supreme Court has found, lacks standing). See Kowalski v. Tesmer, 543
U.S. 125, 134 (2004). Courts have consistently rejected these same allegations,
found in “third-party standing” cases to “prevent[] litigants from asserting the
rights or legal interests of others simply to obtain relief from injury to themselves.”
New York State Citizens’ Coal. for Child. v. Poole, 922 F.3d 69, 75 (2d Cir. 2019)
(citation modified); see also All. for Hippocratic Med., 602 U.S. at 379–80
(“Limiting standing to persons with a ‘personal stake’ serves to protect the
‘autonomy’ of those who are most directly affected so that they can decide whether
and how to challenge the defendant’s action.”). This case mirrors cases where the
Supreme Court specifically cautioned against allowing lawyers to have “third-party
standing to bring in court the claims of future unascertained clients.” Kowalski,
8
543 U.S. at 134 & n.5 (explaining that if lawyers could establish standing by
“mak[ing] a credible claim that a challenged regulation would affect his income to
satisfy Article III[,] . . . the possibilities [thereafter] would be endless”).
If Red Eagle Law were allowed to allege standing based upon its
hypothetical or conjectural collateral injury, we would be opening the floodgates,
allowing all lawyers to “roam the country in search of governmental wrongdoing.”2
See All. for Hippocratic Med., 602 U.S. at 379. Absent Red Eagle Law establishing
that it was the object of the DV Program and that its injury was more than a
hypothetical or conjectural collateral injury, there cannot be Article III standing.
2
This broad application of standing would not just be limited to lawyers. For
example, in these very circumstances, employers of past DV Program recipients
could allege that they are harmed economically. The Supreme Court cautioned
against this type of expansion of standing.
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