E.B. v. U.S. Department of State ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
E.B. et al.,
Plaintiffs,
v. Civil Action No. 19-2856 (TJK)
U.S. DEPARTMENT OF STATE et al.,
Defendants.
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 sub-
stance of the rule. Rather, they take issue with the way it was adopted because it was not subject
to the Administrative Procedure Act’s notice-and-comment procedures. Defendants have moved
to dismiss, arguing that Plaintiffs fail to state a claim for which the Court can grant them relief
because the rule was properly enacted. And Plaintiffs have moved for summary judgment, arguing
to the contrary. For the reasons explained below, the Court finds that the rule was unlawfully
promulgated without notice-and-comment procedures. Thus, it will deny Defendants’ motion to
dismiss, grant Plaintiffs’ motion for summary judgment, and vacate the rule.
Background
A. Diversity Visa Program
The Immigration and Nationality Act of 1990 (“INA”) established the Diversity Visa Pro-
gram. Pub. L. No. 101-649, § 131, 104 Stat. 4978, 4997 et seq. (1990) (codified at 8 U.S.C.
§ 1153(c)). The law allows the State Department to issue 55,000 diversity visas annually to indi-
viduals from countries and regions that have historically sent fewer immigrants to this country.1
See id.; 8 U.S.C. § 1151(e). The purpose is “to diversify the immigrant population in the United
States.” Visas: Diversity Immigrants, 84 Fed. Reg. 25,989, 25,990 (June 5, 2019) (codified at 22
C.F.R. § 42.33). According to the State Department, the program “serves as a clear tool of diplo-
macy and outreach to countries around the world.” Id.Potential immigrants are selected for the program “strictly in a random order established
by the Secretary of State.” 8 U.S.C. § 1153(e)(2). The process begins with the diversity visa
lottery. Interested foreign nationals must apply during a set registration window at least 30 days
long, usually beginning sometime in early October and ending in early November. 22 C.F.R.
§ 42.33(b)(3). After the registration period ends, the State Department then sorts the entries into
different world regions, 8 U.S.C. § 1153(c)(1)(F), and selects “through a randomized computer
drawing” a certain number of registrants who “may then apply for a diversity visa or, if present in
the United States, apply for adjustment of status,” 84 Fed. Reg. at 25,989.
B. The Passport Rule
The Secretary of State may issue regulations governing the information that lottery regis-
trants must provide to the State Department. 8 U.S.C. § 1154(a)(1)(I)(iii). On June 5, 2019, the
State Department promulgated the Passport Rule, which requires that individuals who seek to par-
ticipate in the lottery possess a valid passport when they register. 84 Fed. Reg. at 25,989; see also
22 C.F.R. § 42.33(b)(viii). Before enactment of the rule, a lottery participant had to obtain a pass-
port only if she was selected—i.e., if she won the lottery—and then sought to apply for a diversity
1
Five thousand of these visas are allocated under the Nicaraguan Adjustment and Central Ameri-
can Relief Act, Pub. L. No 105-100, § 203(d), 111 Stat. 2160, 2199 (1997).
2
visa. See 84 Fed. Reg. at 25,989; 22 C.F.R. § 42.64(b). Now, the Passport Rule requires a partic-
ipant to obtain a passport at an earlier point in the process, before the participant knows whether
she can apply for a diversity visa. 84 Fed. Reg. at 25,989; see also 22 C.F.R. § 42.33(b)(viii).
According to the State Department, the rule will help prevent fraud. See 84 Fed. Reg. at 25,990.
The State Department promulgated the Passport Rule as an interim final rule, and so it
became effective upon publication. See 84 Fed. Reg. at 25,989. Although the State Department
informed the public that it would accept comments on the rule for 30 days, it invoked the foreign
affairs function exception of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553(a)(1), and
dispensed with the standard notice-and-comment procedures, see 84 Fed. Reg. at 25,990.
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 Secre-
tary 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
2
The original complaint also included another individual as a plaintiff, ECF No. 1, but Plaintiffs
voluntarily dismissed him when they amended because he “did not face insurmountable financial
obstacles to obtaining a passport,” ECF No 38-1 at 17.
3
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.
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) (ci-
tation omitted), aff’d, 663 F.3d 476 (D.C. Cir. 2011). In “a case involving review of a final agency
4
action under the [APA], however, the Court’s role is limited to reviewing the administrative rec-
ord, so the standard set forth in Rule 56[] does not apply.”3 Id. at 32. “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.
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-com-
ment rulemaking. At least “30 days before” the rule’s effective date, a “notice of proposed rule
making” must be “published in the Federal Register.” 5 U.S.C. § 553(d) & (b). The notice shall
3
Defendants have not produced the administrative record in this case. See ECF No. 42 at 16. But
the record is unnecessary since the Court finds that notice-and-comment rulemaking was required.
See Alphapointe v. Dep’t of Veterans Affs., 475 F. Supp. 3d 1, 12 (D.D.C. 2020) (“Resolving
Plaintiffs’ challenge . . . requires no obvious need for the administrative record” because “Plain-
tiffs do not challenge the manner of rulemaking” but “whether rulemaking was required in the first
place.”). In any event, the Court appears to possess it. Defendants attached to their opposition to
Plaintiffs’ motion for summary judgment the appendix to the administrative record, which lists
five documents. See ECF No. 42-1. Four of those documents—the interim final rule here, two
other final rules, and a Second Circuit opinion—are public records. Id. And Plaintiffs obtained
the only nonpublic record, an “Action Memo for the Assistant Secretary of Consular Affairs,”
through a Freedom of Information Act request and filed it on the docket. See ECF No. 44-1
4
For the reasons detailed in this Court’s prior opinion denying Plaintiffs’ motion for a preliminary
injunction, the Court finds that Plaintiffs’ claims are justiciable. See E.B., 422 F. Supp. 3d at 86–
87. At least one Plaintiff has standing and falls within the zone of interests of the INA. Id. De-
fendants do not argue otherwise in either their motion to dismiss or their opposition to Plaintiffs’
motion for summary judgment.
5
inform the public of “the time, place, and nature of public rule making proceedings”; refer “to the
legal authority under which the rule is proposed”; and detail “either the terms of substance of the
proposed rule or a description of the subjects and issues involved.” Id. § 553(b). The agency then
must “give interested persons an opportunity” to comment on the proposed rule by submitting
“written data, views, or arguments.” Id. § 553(c).
Defendants took none of these steps before issuing the Passport Rule. See 84 Fed. Reg. at
25,989. Instead, they claim that one of the APA’s exceptions to the above requirements—the
“foreign affairs function” exception—applies. They also argue that their provision of post-prom-
ulgation notice and comment was “sufficient” in some way. They are wrong on both counts.
1. Foreign Affairs Function Exception
The D.C. Circuit has instructed that exceptions to the APA’s notice-and-comment require-
ments must be “narrowly construed” and “reluctantly countenanced,” despite their potentially
broad sweep. New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980). Under the foreign affairs
function exception, an agency can dispense with notice-and-comment procedures “to the extent
that there is involved . . . a military or foreign affairs function of the United States.” 5 U.S.C.
§ 553(a)(1). There is sparse case law in—or outside—this Circuit construing this exception.5
The Court starts, as it must, with the text of the statute:
(a) This section [detailing the notice-and-comment requirements] applies, accord-
ing to the provisions thereof, except to the extent that there is involved --
(1) a military or foreign affairs function of the United States; or
5
The Court conducted a similar analysis in Capital Area Immigrants’ Rights Coalition v. Trump,
471 F. Supp. 3d 25 (D.D.C. 2020), to decide whether the foreign affairs function exception applied
to a different interim final rule. The Court held that it did not, and Government appealed that
decision. While the appeal was pending, a final rule was promulgated that superseded the interim
final rule at issue. The Government thus moved to dismiss the appeal and vacate this Court’s
decision under United States v. Munsingwear, Inc., 340 U.S. 36 (1950). Plaintiffs opposed, and
that motion remains pending. See I.A. v. Garland, Nos. 20-5271, 20-5273 (D.C. Cir.).
6
(2) a matter relating to agency management or personnel or to public property,
loans, grants, benefits, or contracts.
5 U.S.C. § 553(a). The first relevant phrase is “to the extent that there is involved.” Although this
case concerns the applicability of subsection (a)(1), the D.C. Circuit has interpreted that phrase in
the context of applying subsection (a)(2)—the “benefits” exception. Specifically, in Humana of
South Carolina, Inc. v. Califano, the Circuit instructed—consistent with the duty to “narrowly
construe” and “reluctantly countenance” such exceptions, New Jersey, 626 F.2d at 1045—that “to
the extent that any one of the enumerated categories is clearly and directly involved in the regula-
tory effort at issue, the Act’s procedural compulsions are suspended.” 590 F.2d 1070, 1082 (D.C.
Cir. 1978) (citations and quotations omitted) (emphasis added). As a result, a rule falls within the
foreign affairs function exception only if it “clearly and directly” involves “a foreign affairs func-
tion of the United States.”
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,”
6
PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 130 (D.C. Cir. 2018) (en banc) (Grif-
fith, J., concurring in the judgment) (noting that undefined terms are to be given “their ordinary
meaning,” and that courts “generally begin[] with dictionaries”), abrogated on other grounds by
Seila Law LLC v. Consumer Fin. Prot. Bureau, --- U.S. ---- , 140 S. Ct. 2183 (2020); MCI Tele-
comm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 228–29 (1994) (observing that the time of en-
actment is “the most relevant time for determining a statutory term’s meaning”).
7
or “[t]he course of action which peculiarly pertains to any public officer in church or state; the
activity appropriate to any business or profession; official duty.” Id. at 1019. “Function” thus
appears to narrow the exception further; to be covered, a rule must involve activities or actions
that are especially characteristic of foreign affairs. Applying these definitions, then, a foreign
affairs function encompasses activities or actions characteristic to the conduct of international re-
lations. And to sum up, to be covered by the foreign affairs function exception, a rule must clearly
and directly involve activities or actions characteristic to the conduct of international relations.
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 un-
desirable 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 be-
cause 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.
7
Defendants say that the State Department reached its “conclusions regarding potential unscrupu-
lous activities and efforts to commit visa fraud based on information it received during its ongoing
diplomatic interactions with diversity visa-eligible countries.” ECF No. 28-1 at 23–24. “[O]pen-
ing up the [Passport Rule] to notice and comment,” Defendants claim, “would require the Depart-
ment to elaborate on international law enforcement investigations and information exchanges con-
ducted with different diversity visa eligible countries,” and it “would likely lead to the public airing
of maters that might enflame or embarrass relations with other countries.” Id. at 24 (cleaned up)
(quoting Zhang v. Slattery, 55 F.3d 732, 744 (2d Cir. 1995)). But Defendants never explain—in
8
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 con-
trary to the public interest.” 5 U.S.C. § 533(b)(B). So if notice-and-comment rulemaking “would
clearly provoke definitely undesirable international consequences” then this so-called “good
cause” exception would be available. Mast Indus., Inc. v. Regan, 596 F. Supp. 1567, 1581 (Ct.
Int’l Trade 1984) (Requiring negative consequences “would render the ‘military or foreign affairs
function’ superfluous since the ‘good cause’ exception . . . would apply.”) (citation omitted)). In-
deed, several courts have relied on the “international consequences” test to find both the foreign
affairs function exception and the good cause exception satisfied on largely the same facts. See
Nademi v. INS, 679 F.2d 811, 814 (10th Cir. 1982); Malek-Marzban v. INS, 653 F.2d 113, 116
(4th Cir. 1981); Yassini, 618 F.2d at 1360–61.
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 pro-
cedures. 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 84 Fed. Reg. at 25,989; see also
Supporting Statement for Paperwork Reduction Act Submission, Electronic Diversity Visa Lottery
(EDV) Entry Form, OMB Number 1405-0153, DS-5501 (Aug. 29, 2019), available at
https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201908-1405-006.
9
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 conse-
quences.” 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 exam-
ple 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 im-
plementing 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 na-
tion.” 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
10
Mexico, 57 Fed. Reg. 31,454 (July 16, 1992) (discussing the negotiations between the United
States and Mexico and including the text of the MOU itself). The exception also covers rules that
regulate foreign diplomats in the United States. For example, in City of New York v. Permanent
Mission of India to United Nations, the Second Circuit held that the exception covered an action
by the State Department “exempt[ing] from real property taxes” any “property owned by foreign
governments and used to house the staff of permanent missions to the United Nations or the Or-
ganization of American States or of consular posts.” 618 F.3d at 175. As the court observed, “the
action taken by the State Department to regulate the treatment of foreign missions implicates mat-
ters of diplomacy directly.” Id. at 202 (emphasis added).
That Congress would categorically exclude rules like these from notice-and-comment pro-
cedures makes sense. The procedures enhance the rulemaking process by exposing proposed reg-
ulations to feedback from a broad set of interested parties. See Int’l Union, United Mine Workers
v. Mine Safety & Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005). But comments are unlikely
to impact a rule to which the United States has already effectively committed itself through inter-
national agreement. See Pena, 17 F.3d at 1486 (“After all . . . the agreement called for the United
States to recognize Mexican [commercial divers’ licenses] even if comments revealed widespread
objections.”). Similarly, in the diplomatic context, agency action may be grounded in international
reciprocity. See City of New York, 618 F.3d at 178 (noting that the State Department explained
that its action “conforms to the general practice abroad of exempting government-owned property
used for bilateral or multilateral diplomatic and consular mission housing”).
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 84 Fed. Reg. at 25,990 (“The Department has historically encountered significant numbers of
11
fraudulent entries for the DV Program each year, including entries submitted by criminal enter-
prises on behalf of individuals without their knowledge.”). The Court has no reason to question
those important concerns, but they are beside the point for the purposes of resolving Plaintiffs’
challenge to the Passport Rule. In the Court’s view, the rule does not “clearly and directly” involve
activities or actions characteristic of the conduct of international relations. It does not, for exam-
ple, itself involve the mechanisms through which the United States conducts relations with foreign
states. Nor was it the product of any agreement between the United States and another country.
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 84 Fed.
Reg. at 25,990). But that does not make the foreign affairs function exception applicable.
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 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) (empha-
sis 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).
12
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 simultane-
ously promoting U.S. foreign policy interests.” ECF No. 42 at 24 (quoting 84 Fed. Reg. at 25,990).
But as Plaintiffs put it, “warm feelings from the inhabitants of foreign nations merely lay the
groundwork for successful diplomacy; they are not in and of themselves the stuff of international
relations.”8 ECF No. 43 at 9. The Court agrees.
Admittedly, it may seem like splitting hairs that the exception and Circuit precedent con-
struing 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 down-
stream 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 “dan-
gers of an expansive reading of the foreign affairs exception . . . are manifest.” City of New York,
8
Defendants cite Raoof v. Sullivan, 315 F. Supp. 3d 34, 43–44 (D.D.C. 2018), in support of their
argument that the foreign affairs function exception applies here. But the paragraph Defendants
cite in that case is mostly about whether the State Department had the authority to promulgate the
regulations at issue. Id. The court did ultimately conclude that the nonimmigrant exchange visitor
program to which the regulations applied “relates to the foreign affairs and diplomatic duties con-
ferred upon the Secretary of State and the State Department” and that the State Department cor-
rectly invoked the foreign affairs function exception. Id. at 44. But the plaintiffs in that case did
not specifically challenge or even brief whether the exception applied. See Pls.’ Mem. P. & A.
Opp’n Defs.’ Mot. Dismiss, Raoof v. Sullivan, 315 F. Supp. 3d 34 (D.D.C. 2018) (No. 1:17-cv-
01156-TNM), ECF No. 14. To the extent that Raoof conflicts with the outcome here, the Court
respectfully disagrees with it.
13
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’ diplo-
macy 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, Defend-
ants should have provided the public with “notice of a proposed rule making” and an opportunity
to comment at least “30 days before” the proposed rule’s effective date. 5 U.S.C. § 553. Instead,
Defendants issued the Passport Rule with no notice, effective immediately. Still, Defendants argue
that—regardless of the foreign affairs function exception—their promulgation process was “le-
gally sufficient.” ECF No. 42 at 24. In fact, they go as far as to say that Plaintiffs “are incorrect”
14
to “assert that the [Passport Rule] is procedurally deficient under the notice and comment rule-
making 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 evi-
dence 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 rule-
making 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 inter-
ested 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.2
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.15
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 rulemak-
ing 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 be-
come 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 publi-
cation 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
harm because they did not learn about the rule in time to get passports before that year’s lottery
application window closed. Id. That has nothing to do with whether Defendants complied with
their obligations under the APA. And the other cases Defendants cite on this score do not concern
APA notice-and-comment rulemaking at all.9
9
See Camp v. U.S. Bureau of Land Mgmt., 183 F.3d 1141, 1145 (9th Cir. 1999) (considering
whether publication of notice in the Federal Register could start the statute of limitations running
on the plaintiff’s claims); Friends of Sierra R.R., Inc. v. Interstate Com. Comm’n, 881 F.2d 663,
667–68 (9th Cir. 1989) (rejecting argument that a party could not participate in an agency proceed-
ing because the party had adequate notice of the hearing as a matter of law because of its publica-
tion in the Federal Register); Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 953 (D.C. Cir. 2013)
(holding that the date of filing a document to be published in the Federal Register is the relevant
date for determining presence of a quorum); Lyng v. Payne, 476 U.S. 926, 942–43 (1986) (finding
that notice via publication in the Federal Register satisfied any due process concerns); Hopp v.
United States, 661 F. Supp. 800, 801–02 (S.D. Iowa 1987) (concluding that a regulation could be
applied retroactively to deprive the plaintiffs of a tax credit for a heat pump because the proposed
regulation had been published in the Federal Register before the plaintiffs’ bought the heat pump).
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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 oth-
erwise. 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 5 U.S.C. § 553.
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.” 5 U.S.C. § 706(2)(D). And the D.C. Circuit
has held that “[f]ailure to provide the required notice and to invite public comment . . . is a funda-
mental flaw that ‘normally’ requires vacatur of the rule.” Heartland Reg’l Med. Ctr. v. Sebelius,
566 F.3d 193, 199 (D.C. Cir. 2009) (citing Sugar Cane Growers Coop. of Fla. v. Veneman, 289
F.3d 89, 97–98 (D.C. Cir. 2002)); see also Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir.
2012) (“Because EPA lacked good cause to dispense with required notice and comment proce-
dures, we conclude the IFR must be vacated without reaching Petitioners’ alternative arguments.”).
Having found that the Passport Rule was enacted unlawfully, the Court sees no reason why it
should not be vacated.
Defendants themselves never argue for full-on remand without vacatur. That is no sur-
prise—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
17
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 Court is unable
to evaluate whether the Secretary’s decision was reasonable because her omission prevented the
public from offering meaningful comments.”). And as explained above, offering the public notice
and the opportunity to comment after the fact is no cure. New Jersey, 626 F.2d at 1049–50. As
for the second factor, Defendants have presented no evidence suggesting that “[t]he egg has been
scrambled” so that “there is no apparent way to restore the status quo ante.” Sugar Cane Growers,
289 F.3d at 97 (D.C. Cir. 2002).
Defendants do argue that the Court should temporarily stay any vacatur order, but the rea-
sons 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 prob-
lems, “including the prospect of immediately accepting diversity applications from foreign nation-
als without any proof of their identity,” thus “perpetuat[ing] the fraud the rule was trying to com-
bat” 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
10
Defendants also request that the Court order further briefing on this issue, but they offer no
reason why more briefing is necessary. See ECF No. at 26–28.
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Rule’s vacatur in whatever way they choose, including by promulgating a new rule and complying
with notice-and-comment rulemaking procedures.
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.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: February 4, 2022
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