E.B. v. U.S. DEPARTMENT OF STATEE.B. v. U.S. DEPARTMENT OF STATE
MEMORANDUM OPINION
This case is about an interim final rule issued by the State Department that changed the requirements for individuals applying to the Diversity Visa Program, otherwise known as the visa lottery. Under the rule, individuals must possess a valid passport before they can participate in the lottery. Plaintiffs, two foreign nationals and their U.S.-based relatives, do not challenge the substance of the rule. Rather, they take issue with the way it was adopted because it was not subject to the
I. Background
A. Diversity Visa Program
The Immigration and Nationality Act of 1990 (“INA“) established the Diversity Visa Program.
Potential immigrants are selected for the program “strictly in a random order established by the Secretary of State.”
B. The Passport Rule
The Secretary of State may issue regulations governing the information that lottery registrants must provide to the State Department.
The State Department promulgated the Passport Rule as an interim final rule, and so it became effective upon publication. See
C. The Instant Case
Plaintiffs are four individuals. Plaintiffs E.B. and K.K. live in Africa. See ECF Nos. 39 ¶ 1 & 38-2 ¶ 1. They both applied to the Diversity Visa Program multiple times before Defendants promulgated the Passport Rule. See ECF No. 39 ¶ 8; ECF No. 38-2 ¶ 6. But neither can commit to the costs of obtaining a passport only to enter a lottery. See ECF No. 39 ¶ 17; ECF No. 38-2 ¶ 15. Their siblings, Plaintiffs W.B. and A.K., live in the United States and hope that the Diversity Visa Program will enable them to emigrate here. See ECF Nos. 38-4 & 38-3.
Plaintiffs sued the State Department and Michael Pompeo in his official capacity as Secretary of State, alleging that the promulgation of the Passport Rule without notice-and-comment rulemaking was unlawful under the APA.2 See ECF No. 1. Plaintiffs also moved for a preliminary injunction, ECF No. 3, which this Court denied, E.B. v. U.S. Dep‘t of State, 422 F. Supp. 3d 81 (D.D.C. 2019); see also ECF Nos. 20 & 21. Plaintiffs then filed an amended complaint, raising the same arguments and explaining that the Passport Rule continues to prevent E.B. and K.K. from participating in future diversity lotteries because neither can afford a passport just for applying to the Diversity Lottery Program. See ECF No. 27. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the State Department provided Plaintiffs with legally sufficient notice and an opportunity to respond and in any event that the “foreign affairs function” exception to the APA‘s notice-and-comment requirements applied. ECF No. 28. Plaintiffs moved for summary judgment. ECF No. 38.
II. Legal Standards
“A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff‘s complaint[.]” Herron v. Fannie Mae, 861 F.3d 160, 173 (D.C. Cir. 2017). “In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.‘” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). “But the Court need not accept inferences drawn by plaintiff if those inferences are not supported by the facts set out in the complaint, nor must the court accept legal conclusions cast as factual allegations.” Id. “To survive a motion to dismiss, a complaint must have ‘facial plausibility,’ meaning it must ‘plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.‘” Id. (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Summary judgment is usually appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as matter of law.” Air Transp. Ass‘n of Am. v. Nat‘l Mediation Bd., 719 F. Supp. 2d 26, 31-32 (D.D.C. 2010) (alteration in original) (citation omitted), aff‘d, 663 F.3d 476 (D.C. Cir. 2011). In “a case involving review of a final agency action under the [APA], however, the Court‘s role is limited to reviewing the administrative record, so the standard set forth in Rule 56[] does not apply.”3 Id. “The entire case on review is a question of law, and only a question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). As a result, “when a district court is reviewing agency action . . . the legal questions raised by a 12(b)(6) motion and a motion for summary judgment are the same.” Id. at 1222-23.
III. Analysis
This case turns on one question: whether Defendants had to comply with the APA‘s notice-and-comment requirements when promulgating the Passport Rule. They did. Because Defendants did not follow those procedures, the Passport Rule was enacted unlawfully, and must be vacated.4
A. The Passport Rule Was Enacted Unlawfully
The APA generally requires substantive rules to be promulgated through notice-and-comment rulemaking. At least “30 days before” the rule‘s effective date, a “notice of proposed rule making” must be “published in the Federal Register.”
Defendants took none of these steps before issuing the Passport Rule. See
1. Foreign Affairs Function Exception
The D.C. Circuit has instructed that exceptions to the APA‘s notice-and-comment requirements must be “narrowly construed” and “reluctantly countenanced,” despite their potentially broad
The Court starts, as it must, with the text of the statute:
(a) This section [detailing the notice-and-comment requirements] applies, according to the provisions thereof, except to the extent that there is involved—
(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.
The APA does not define the next key terms—“foreign affairs” or “function“—and so the Court turns to dictionaries in use at the time of the APA‘s enactment.6 The definition of “foreign affairs” is reasonably straightforward: it refers to the conduct of international relations between sovereign states. See Webster‘s New International Dictionary 988 (2d ed. 1945) (defining foreign affairs to include “matters having to do with international relations and with the interests of the home country in foreign countries“). The meaning of “function,” on the other hand, is less clear. The 1945 version of Webster‘s New International Dictionary defines it as “[t]he natural and proper action of anything; special activity,” “[t]he natural or characteristic action of any power or faculty,”
or “[t]he course of action which peculiarly
Some circuits have adopted a test that Defendants appear to rely on here that would permit the exception to be invoked when notice-and-comment procedures “would provoke definitely undesirable international consequences.” Am. Ass‘n of Exps. & Imps.-Textile & Apparel Grp. v. United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985) (quotation omitted); see also Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008); Jean v. Nelson, 711 F.2d 1455, 1478 (11th Cir. 1983); Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980). Defendants say that subjecting the Passport Rule to notice-and-comment procedures would provoke undesirable consequences because it would require them to disclose to the public sensitive information received from other countries about fraud related to the Diversity Lottery Program. Defendants have not provided a factual basis to support any of that.7 But in any event, the D.C. Circuit has not adopted this test. And this Court declines to do so for three reasons.
First, this test is unmoored from the legislative text; it is lifted from the House Report relating to the APA. See H.R. Rep. No. 79-1980, at 257 (1946). And as the Supreme Court has repeatedly instructed, “the authoritative statement is the statutory text, not the legislative history or any other extrinsic material.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005). Thus, the Court declines to “rest[] its interpretation on legislative history,” which “is not the law.” Epic Sys. Corp. v. Lewis, --- U.S. ----, 138 S. Ct. 1612, 1631 (2018).
Second, requiring a rule to have undesirable consequences would render the foreign affairs function exception superfluous. Another exception already applies “when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to
their briefing or in, for example, a sworn declaration from a relevant official—why any sensitive information would necessarily have to be disclosed to the public during notice-and-comment procedures. And this argument is fatally undercut by Defendants’ request for public comment and their response to those comments after the Rule was in effect. See
Third, the Second Circuit recently clarified that it applies this “international consequences” test exclusively to areas of the law “that only indirectly implicate international relations” rather than “quintessential foreign affairs functions such as diplomatic relations and the regulation of foreign missions,” which it characterized as “different.” City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 202 (2d Cir. 2010) (emphasis added). According to the Second Circuit, the latter circumstances “clearly and directly involve a foreign affairs function, and so fall within the exception without a case-by-case iteration of specific undesirable consequences.” Id. (citations and quotations omitted) (emphasis added). But this approach conflicts with the D.C. Circuit‘s admonition that a rule must “clearly and directly” involve the basis for the asserted exception—here, the foreign affairs function—full stop, without exception. Humana, 590 F.2d at 1082.
Thus, at least under the law of this Circuit, the foreign affairs function exception covers heartland cases in which the rule itself directly involves the conduct of foreign affairs. One example is when the rule implements an international agreement between the United States and another sovereign state. In fact, that is the only circumstance to which the D.C. Circuit has applied it. In International Brotherhood of Teamsters v. Pena, 17 F.3d 1478 (D.C. Cir. 1994), the Circuit held that the foreign affairs function exception applied to a Federal Highway Administration rule implementing a Memorandum of Understanding (“MOU“) between the United States and Mexico about the countries’ reciprocal recognition of each other‘s commercial drivers’ licenses. The court noted that “the rule does no more than carry out” the United States’ “obligations to a foreign nation.” Id. at 1486. The rule in that case merely “add[ed] a sentence to [a] footnote” in a regulation specifying that the Administrator had determined that Mexican commercial drivers’ licenses met the United States’ standards. Id. at 1481; see also Commercial Driver‘s License Reciprocity With Mexico,
But the Passport Rule is different. It creates a new requirement for all individuals seeking to immigrate to the United States in response to Defendants’ concerns about fraud in that process. See
Defendants do not really argue otherwise. In fact, they never claim that the Passport Rule itself involves activities or actions characteristic of the conduct of international relations. Instead, they stress that the program the rule “pertains to“—the Diversity Visa Program—“serves as a clear tool of diplomacy and outreach to countries around the world.” ECF no. 42 at 17 (quoting
For one, the exception‘s application turns on the relationship of the rule to activities or actions characteristic of international relations, not the relationship of the program affected by the rule. The Circuit made that clear when it said that notice-and-comment requirements do not apply only “to the extent that any one of the enumerated categories is clearly and directly involved in the regulatory effort at issue.” Humana, 590 F.2d at 1082 (internal quotation marks omitted) (emphasis added); see also Invenergy Renewables LLC v. United States, 422 F. Supp. 3d 1255, 1289 (Ct. Int‘l Trade 2019), modified, 476 F. Supp. 3d 1323 (Ct. Int‘l Trade 2020) (assessing whether ”this rulemaking involve[s] diplomatic functions, military functions, or other sensitive areas of foreign policy” (emphasis added)); Rajah, 544 F.3d at 437 (considering the effects of only “the public rulemaking provisions” at issue).
In any event, the Diversity Visa Program does not “clearly and directly” involve activities or actions characteristic of the conduct of international relations. Defendants point out that this “important public diplomacy tool . . . helps create allies and goodwill overseas, while simultaneously promoting U.S. foreign policy interests.” ECF No. 42 at 24 (quoting
Admittedly, it may seem like splitting hairs that the exception and Circuit precedent construing it distinguish between rules that “clearly and directly” involve activities characteristic of the conduct of international relations and those that may have indirect effects on the United States’ diplomacy. But of course, the Court is bound to apply both the statutory text and Circuit precedent as they are. And it is worth noting that Congress‘s use of the word “function“—instead of, say, “effects” or “implications“—prevents the foreign affairs function exception from swallowing the rule. There are many administrative actions that an agency might plausibly argue cause downstream effects in other countries or on international negotiations in which the United States is perpetually engaged. In fact, some courts have warned that in the immigration context, the “dangers of an expansive reading of the foreign affairs exception . . . are manifest.” City of New York,
618 F.3d at 202; see also Yassini, 618 F.2d at 1360 n.4 (“The foreign affairs exception would become distended if applied to INS actions generally, even though immigration matters typically implicate foreign affairs.“). And this is true in other areas of the law as well. One agency might reach for a too-sweeping interpretation of the foreign affairs function exception to argue that a rule involving climate change that affects other countries is subject to the exception. Another might contend that a rule about domestic production of some good or commodity that impacts ongoing trade negotiations is covered. Thus, courts of appeals have generally rejected the idea that the exception applies just because a rule “implicate[s] foreign affairs,” City of New York, 618 F.3d at 202; see also Zhang, 55 F.3d at 744; Yassini, 618 F.2d at 1360 n.4, or “touche[s] on national sovereignty,” Jean, 711 F.2d at 1478. None of this is to say that agencies are barred from taking these hypothetical actions; it simply means that they are not excused from engaging in notice-and-comment rulemaking if they do.
In the end, the Court has no reason to doubt that the Passport Rule is a small part of a broader program that may well help burnish the United States’ reputation in countries all around the world. But any speculative, indirect effect that program may have on the United States’ diplomacy does not clear the high bar necessary to dispense with notice-and-comment rulemaking under the foreign affairs function exception.
2. Post-Promulgation Notice and Comment
Because the APA‘s notice-and-comment requirements apply to the Passport Rule,
to “assert that the [Passport Rule] is procedurally deficient under the notice and comment rulemaking provisions of the [APA]” because the State Department published the rule in the Federal Register and allowed the public to submit comments after it went into effect. ECF No. 28-1 at 7. This argument is as bold as it is wrong.
The APA‘s notice-and-comment procedures are not a mere formality. They “are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.” Int‘l Union, 407 F.3d at 1259. They also “attempt[] to provide a ‘surrogate political process’ that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process.” Dep‘t of Homeland Sec. v. Regents of the Univ. of Cal., --- U.S. ----, 140 S.Ct. 1891, 1929 n.13 (2020) (Thomas, J., dissenting) (citation omitted)).
Critical to these goals is the timing of the procedures. As the D.C. Circuit has explained, “[p]ermitting the submission of views after the effective date is no substitute for the right of interested persons to make their views known to the agency in time to influence the rule making process in a meaningful way.” New Jersey, 626 F.2d at 1049 (quoting U.S. Steel Corp. v. EPA, 595 F.2d 207, 214-15 (5th Cir. 1979)). First off, it is unlikely “that persons would bother to submit their views or that the [agency] would seriously consider their suggestions after the regulations are a fait accompli.” Id. More importantly, if courts allowed the “provision” of “post hoc” notice and comment to “cure[]” an agency‘s “failure to follow [the APA‘s notice-and-comment] procedures,” those requirements would be “virtually unenforceable. An agency that wished to dispense with pre-promulgation notice and comment could simply do so, invite post-promulgation comment, and republish the regulation before a reviewing court could act.” Id.
Other courts have said the same. See Sharon Steel Corp. v. EPA, 597 F.2d 377, 381 (3d Cir. 1979) (“Provision of prior notice and comment allows effective participation in the rulemaking process while the decisionmaker is still receptive to information and argument. After the final rule is issued, the petitioner must come hat-in-hand and run the risk that the decisionmaker is likely to resist change.“); Maryland v. EPA, 530 F.2d 215, 222 (4th Cir. 1975), vacated on other grounds sub nom. EPA v. Brown, 431 U.S. 99 (1977) (“The reception of comments after all the crucial decisions have been made is not the same as permitting active and well prepared criticism to become a part of the decision-making process.“).
Contrary to Defendants’ suggestion, the Court never suggested differently when denying Plaintiffs’ motion for a preliminary injunction. The Court did hold that the Passport Rule‘s publication in the Federal Register provided Plaintiffs “notice as a matter of law.” E.B., 422 F. Supp. 3d at 90. But it did so in the context of addressing Plaintiffs’ claim that they suffered irreparable
At bottom, Defendant‘s post-promulgation process is irrelevant to whether they complied with the APA‘s notice-and-comment rulemaking procedures, and no case they cite suggests otherwise. Defendants failed to provide notice or an opportunity to comment before the Passport Rule went into effect. And for that reason, the rule was enacted unlawfully. See
B. Vacatur Is Appropriate
The APA commands that courts “hold unlawful and set aside agency action[s]” taken “without observance of procedure required by law.”
Defendants themselves never argue for full-on remand without vacatur. That is no surprise—that remedy is only permitted “in limited circumstances.” Am. Great Lakes Ports Ass‘n v. Schultz, 962 F.3d 510, 518 (D.C. Cir. 2020). To determine whether it is appropriate, the Circuit has directed courts to look at two factors: “the seriousness of the order‘s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.” Allied-Signal, Inc. v. NRC, 988 F.2d 146, 150-51 (D.C. Cir. 1993).
As to the first factor, it is hard to say what the agency would have done had it received comments before promulgating the Passport Rule, but deficient notice “almost always requires vacatur.” Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014); see also Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240, 268 (D.D.C. 2015) (“The
Defendants do argue that the Court should temporarily stay any vacatur order, but the reasons it offers for doing so are no longer relevant.10 When Defendants briefed their opposition to Plaintiffs’ motion for summary judgment, the visa lottery application window was open. See ECF No. 42. According to Defendants, vacating the Passport Rule then would have created many problems, “including the prospect of immediately accepting diversity applications from foreign nationals without any proof of their identity,” thus “perpetuat[ing] the fraud the rule was trying to combat” and “caus[ing] confusion for those who have already submitted their applications with a valid foreign passport.” ECF No. 42 at 27. Fair enough. But at this point, those reasons are no longer operative. The application window is not open now, and it appears it will not open until sometime in October. See ECF No. 28-1 at 14 (explaining that the Department opens a new application window at the start of the fiscal year); see also ECF No. 38-1 at 14-15 (detailing the dates of past application windows). Thus, Defendants will have about eight months to address the Passport
Rule‘s vacatur in whatever way they choose, including by promulgating a new rule and complying with notice-and-comment rulemaking procedures.
IV. Conclusion
For all these reasons, the Court will deny Defendants’ motion to dismiss, grant Plaintiffs’ motion for summary judgment, and vacate the Passport Rule. A separate order will issue.
Date: February 4, 2022
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge