583 F.Supp.3d 58
D.D.C.2022Background
- The Diversity Visa (DV) Program awards immigrant visas by lottery; historically applicants needed a passport only after selection.
- On June 5, 2019 the State Department issued an interim final "Passport Rule" requiring a valid passport at lottery registration, citing fraud prevention.
- The Rule was published as an interim final rule and the Department invoked the APA's "foreign affairs function" exception to bypass pre‑promulgation notice-and-comment, while accepting post‑promulgation comments.
- Plaintiffs (prospective DV applicants and U.S. relatives) challenged only the procedure of adoption, alleging the APA required pre‑promulgation notice-and-comment.
- The Court concluded the foreign affairs exception did not apply, post‑promulgation notice could not cure the procedural defect, and therefore vacated the Passport Rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APA notice‑and‑comment was required for the Passport Rule | APA requires pre‑promulgation notice and an opportunity to comment | Rule falls within the APA "foreign affairs function" exception | Notice‑and‑comment required; exception does not apply |
| Whether post‑promulgation publication and comment cured any APA defect | Post‑hoc comments cannot substitute for pre‑promulgation process | Publication in Federal Register and post comments were sufficient | Post‑promulgation comments do not cure failure to provide pre‑promulgation notice‑and‑comment |
| Proper scope/test for the foreign affairs exception | N/A (Plaintiffs argued exception inapplicable under controlling D.C. Circuit law) | Reliance on circuits applying an "undesirable international consequences" test | D.C. Circuit law governs: exception applies only where rule "clearly and directly" involves foreign affairs (e.g., implementing international agreements or regulating diplomats); the "international consequences" formulation is not adopted for this Circuit |
| Remedy for procedural violation (vacatur/remand/stay) | Vacatur appropriate | Ask for stay or remand without vacatur to avoid disruption | Vacatur of the Passport Rule; no stay warranted given application window timing and lack of evidence of irreparable disruption |
Key Cases Cited
- New Jersey v. EPA, 626 F.2d 1038 (D.C. Cir. 1980) (narrowly construing APA exceptions and rejecting post‑hoc comment as substitute)
- Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070 (D.C. Cir. 1978) ("clearly and directly involved" formulation for APA exceptions)
- International Brotherhood of Teamsters v. Pena, 17 F.3d 1478 (D.C. Cir. 1994) (foreign affairs exception applied where rule carried out international agreement)
- City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172 (2d Cir. 2010) (distinguishing "quintessential" foreign affairs actions from indirect impacts)
- Int’l Union, United Mine Workers v. Mine Safety & Health Admin., 407 F.3d 1250 (D.C. Cir. 2005) (value of notice‑and‑comment)
- Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193 (D.C. Cir. 2009) (failure to provide notice and comment normally requires vacatur)
- Allina Health Servs. v. Sebelius, 746 F.3d 1102 (D.C. Cir. 2014) (deficient notice generally requires vacatur)
- Allied–Signal, Inc. v. NRC, 988 F.2d 146 (D.C. Cir. 1993) (vacatur/remand factors: seriousness of deficiency and disruptive consequences)
- Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89 (D.C. Cir. 2002) (discussing vacatur and restoration of status quo)
- United States v. Munsingwear, Inc., 340 U.S. 36 (U.S. 1950) (procedural note on vacatur of judgments on moot or superseded matters)