E.B. v. U.S. Dep't of State
| Decision Date | 04 February 2022 |
| Docket Number | Civil Action No. 19-2856 (TJK) |
| Citation | 583 F.Supp.3d 58 |
| Parties | E.B. et al., Plaintiffs, v. U.S. DEPARTMENT OF STATE et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
583 F.Supp.3d 58
E.B. et al., Plaintiffs,
v.
U.S. DEPARTMENT OF STATE et al., Defendants.
Civil Action No. 19-2856 (TJK)
United States District Court, District of Columbia.
Signed February 4, 2022
Anil Karim Vassanji, Pro Hac Vice, Friedman, Kaplan, Seidler & Adelman LLP, New York, NY, Mary B. McCord, Georgetown University Law Center, Jonathan L. Backer, Pro Hac Vice, Seth Wayne, Institute for Constitutional Advocacy and Protection, Washington, DC, for Plaintiffs E.B., K.K., W.B., A.K.
Glenn M. Girdharry, Nairi Simonian Gruzenski, United States Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
TIMOTHY J. KELLY, United States District Judge
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
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.
I. Background
A. Diversity Visa Program
The Immigration and Nationality Act of 1990 ("INA") established the Diversity Visa Program. 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 individuals 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 diplomacy 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 registrants 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 participate 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 passport only if she was selected—i.e. , if she won the lottery—and then sought to apply for a diversity visa. See 84 Fed. Reg. at 25,989 ; 22 C.F.R. § 42.64(b). Now, the Passport Rule requires a participant 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 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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. 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.
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." 5 U.S.C. § 553(d) & (b). The notice shall 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 -promulgation notice and comment was "sufficient" in some way. They are wrong...
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