E.B. v. U.S. Department of State
Civil Action No. 2019-2856
| D.D.C. | Feb 4, 2022Background
- The Diversity Visa (DV) program awards 55,000 immigrant visas annually via a randomized lottery; historically, applicants only needed a passport if selected.
- On June 5, 2019 the State Department issued an interim final "Passport Rule" requiring a valid passport at the time of lottery registration, citing fraud prevention.
- The Rule was published as an interim final rule and the Department invoked the APA foreign affairs function exception to avoid pre‑promulgation notice-and-comment; it nonetheless solicited comments after the Rule took effect.
- Plaintiffs are two African nationals (who cannot afford passports just to enter the lottery) and their U.S.-based relatives; they sued under the APA challenging the procedural validity of the Rule (not its substance).
- The Court considered whether the foreign affairs exception applied, whether post‑promulgation comments cured any defect, and what remedy was appropriate; it concluded notice-and-comment was required, was not given, and vacated the Rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the APA foreign affairs function exception excuses pre‑promulgation notice-and-comment for the Passport Rule | The Rule does not "clearly and directly" involve foreign affairs functions; exception inapplicable | The DV program advances diplomacy/outreach; exception applies and notice-and-comment would harm foreign relations | Exception not available—Rule does not clearly and directly involve foreign affairs functions; exception narrowly construed |
| Whether post‑promulgation publication and comment cures failure to give pre‑promulgation notice | Post hoc comments cannot substitute for pre‑promulgation opportunity to influence rule | Publication and solicitation of comments after issuance was sufficient notice | Post‑promulgation comment does not cure the APA procedural defect; timing is essential |
| Whether the Rule must be vacated or remanded without vacatur | Vacatur is appropriate for fundamental notice-and-comment failures | Department urged interim relief/stay to avoid disruption to ongoing application window | Vacatur ordered; remand without vacatur denied as inappropriate given procedural defect and lack of evidence of disruptive reliance |
| Justiciability/standing to challenge procedural rulemaking | Plaintiffs have standing and are within zone of interests of INA | (Defendants did not press lack of standing) | Court previously found claims justiciable and proceeded on the merits |
Key Cases Cited
- New Jersey v. EPA, 626 F.2d 1038 (D.C. Cir. 1980) (exceptions to APA notice-and-comment must be narrowly construed)
- Humana of S.C., Inc. v. Califano, 590 F.2d 1070 (D.C. Cir. 1978) (rule falls within exception only if category is "clearly and directly" involved)
- International Brotherhood of Teamsters v. Pena, 17 F.3d 1478 (D.C. Cir. 1994) (foreign affairs exception applied where rule implemented an international agreement)
- City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172 (2d Cir. 2010) (agency action regulating foreign missions implicated diplomacy directly)
- 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 almost always requires vacatur)
- Allied–Signal, Inc. v. NRC, 988 F.2d 146 (D.C. Cir. 1993) (factors for remand without vacatur)