United States District Court, D. Maryland
L. Hollander, United States District Judge.
Memorandum Opinion resolves a motion (ECF 75) to modify the
Court's Scheduling Order (ECF 69), issued in connection
with a suit challenging amendments to the Department of
State's Foreign Affairs Manual (the "FAM" or
"Manual"). The amendments at issue concern the
criteria that consular officers use to determine whether a
visa applicant is likely to be a "public charge"
and thus inadmissible for admission to the United States.
suit was filed by the Mayor and City Council of Baltimore
(the "City") against Donald J. Trump, in his
official capacity as President of the United States; the
United States Department of State ("State
Department"); and Michael R. Pompeo, in his official
capacity as United States Secretary of State. Plaintiff seeks
to enjoin defendants from using the revised Manual to process
immigrant visa applications. ECF 1 ("Complaint").
The Complaint contains four counts, three of which are under
the Administrative Procedure Act, 5 U.S.C. §§ 551
et seq. ("APA"). Count One
alleges that the FAM revisions are "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law," in violation of 5 U.S.C. §
706(2)(A). ECF 1, ¶¶ 171-78. In Count Two, the City
asserts that the changes to the Manual have an impermissible
retroactive effect, in violation of 5 U.S.C. §
706(2)(A). ECF 1, ¶¶ 179-86. Count Three alleges
that the FAM was amended without notice and comment, as
required by 5 U.S.C. § 706(2)(D), ECF 1, ¶¶
183-86. In Count Four, the City lodges claims under the equal
protection component of the Due Process Clause of the Fifth
Amendment to the Constitution, asserting that the changes to
the FAM discriminate on the basis of race, national origin,
nationality, income, and receipt of public benefits.
Id. ¶¶ 187-97.
(sometimes referred to collectively as the
"government") moved to dismiss the Complaint
pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter
jurisdiction, and Fed.R.Civ.P. 12(b)(6), for failure to state
a claim. ECF 17. In a Memorandum Opinion (ECF 59) and Order
(ECF 60) of September 20, 2019, 1 denied the government's
subsequently answered the suit. ECF 68. Thereafter, the Court
issued a Scheduling Order to facilitate discovery. ECF
Pursuant to the Scheduling Order, the City has served
defendants with requests for production of documents. In
addition, it issued two sets of interrogatories. One was
directed to President Trump and the other was directed to the
State Department and Secretary Pompeo.
response, defendants filed a "Motion To Modify
Scheduling Order" (ECF 75), supported by a memorandum.
ECF 75-1 (collectively, the "Motion"). They argue
that no discovery is needed beyond production of the
administrative record. And, defendants ask the Court to stay
discovery pending the resolution of the Motion. The City
opposes the Motion. ECF 81 ("Opposition). Ten exhibits
were appended to the Opposition. ECF 81-2 to ECF 81-11.
Defendants have replied. ECF 82. A flurry of submissions
followed. See ECF 83; ECF 85; ECF 86.
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall vacate
the Scheduling Order (ECF 69), and I shall grant the Motion
(ECF 75) in part and deny it in part. In particular, I shall
grant the Motion as to plaintiffs equal protection claims and
deny the Motion as to plaintiffs APA claims. Following review
of the administrative record, plaintiff may seek leave of
court to conduct discovery beyond the administrative record
if such a request is warranted.
Factual and Procedural Summary
well over a century, federal law has barred "any person
unable to take care of himself or herself without becoming a
public charge" from entering the United States. Act of
Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214 (1882). Today,
this prohibition is codified in the Immigration and;
Nationality Act, 8 U.S.C. §§ 1101 et seq.
("INA"). Under the INA, "[a]ny alien who ...
is likely at any time to become a public charge is
inadmissible." Id. § 1182(a)(4)(A). The
term "public charge" is not defined, however.
Instead, the INA directs that, "at a minimum," the
government must "consider the alien's-(I) age; (II)
health; (III) family status; (IV) assets, resources, and
financial status; and (V) education and skills."
Id. § 1182(a)(4)(B)(i). The INA also permits
the government to consider an "Affidavit of
Support" when making a public charge determination.
Id. § 1182(a)(4)(B)(ii).
Department of Homeland Security ("DHS") and the
State Department both make public charge determinations,
depending on the location of the foreign national.
See ECF 1, ¶¶ 20; 20 n.12. Visa
applications submitted by aliens located outside the United
States are processed at a State Department consulate in the
alien's home country. Id. ¶ 20. During
"consular processing," the applicant must submit
various documents, undergo a medical screening, and be
interviewed by a consular officer. Id. ¶ 21.
The applicant bears the burden of proving "to the
satisfaction of the consular officer" that he or she is
eligible for a visa. 8 U.S.C. § 1361. No visa
"shall be issued to an alien" if "it appears
to the consular officer" from the alien's
application "that such alien is ineligible to receive a
visa" or if "the consular officer knows or has
reason to believe" that the alien is ineligible.
Id. § 1201(g).
State Department's Manual contains detailed instructions
that consular officers are to follow when assessing whether a
visa applicant is inadmissible as a public charge. Prior to
January 3, 2018, the FAM defined "public charge" as
a non-citizen "likely to become primarily dependent on
the U.S. Government for subsistence." ECF 17-2 (9 FAM
§ 302.8 (2017)) at 3. This occurred either from
"[r]eceipt of public cash assistance for income
maintenance" or "[institutionalization for
long-term care at U.S. Government expense." Id.
at 3. Notably, the Manual expressly excluded from the public
charge assessment the visa applicant's past, current, or
future receipt of non-cash benefits. See Id. at 4.
Further, the Manual limited the relevance of benefits used by
the visa applicant's family members. See Id. at
10. The FAM also instructed that an Affidavit of Support
"should normally be considered sufficient" to
satisfy the public charge requirement, and it cautioned
against finding a visa applicant inadmissible simply because
his or her sponsor received public benefits. Id. at
January 3, 2018, the State Department, allegedly without
prior notice, issued amendments to the portions of the FAM
dealing with public charge determinations. ECF 1,
¶¶ 92, 94. The revisions work three significant
changes to the way in which consular officers conduct public
charge determinations. First, the Manual now directs consular
officers to consider a visa applicant's receipt of
non-cash benefits as part of the public charge determination.
ECF 1-1 ("Redlined Version of 2018 FAM") at 5.
Second, the FAM now instructs that the receipt of noncash
benefits by the visa applicant's family members is
"a heavily negative factor" in the analysis.
Id. at 10. Third, whereas the FAM once taught that
an Affidavit of Support from the applicant's sponsor was
"normally . . . sufficient" to satisfy the public
charge inquiry, the revised Manual diminishes the
Affidavit's weight, instructing that it is merely one
factor among many that the consular officer should consider.
Id. at 7.
noted, the City alleges that the State Department acted in an
arbitrary and capricious manner and that the FAM revisions
are impermissibly retroactive. ECF 1, ¶¶ 171-82.
The City also asserts that the FAM changes contravene the
APA's notice-and-comment requirement. Id.
¶¶ 183-86. Further, the City alleges that the State
Department revised the FAM at the direction of President
Trump and senior Executive Branch officials, who harbor
"animus towards immigrants, particularly those from
Latin American, Asian, and African countries, and those who
accept public benefits." Id. ¶ 74. To make
its case, the City relies on multiple statements by President
Trump; Stephen Miller, a senior advisor to the President; and
then-Senator Jefferson B. Sessions III. See Id.
¶¶ 71-73. The City connects the President to the
FAM amendments by pointing to a draft executive order
directing the State Department to amend the FAM, which was
leaked to the public in January 2017, but which was never
issued. See Id. ¶¶ 76-77.
to the City, the amendments to the FAM's public charge
provisions impose financial costs on the City and disrupt its
social services. Further, the City contends that the
amendments harm the health and well-being of Baltimore's
immigrant communities. Thus, it asserts that "Baltimore
as a whole will suffer" if defendants are not enjoined
from using the revised Manual. Id. ¶ 170.
filed suit on November 28, 2018. ECF 1. The government, on
February 25, 2019, moved to dismiss the Complaint for lack of
jurisdiction under Rule 12(b)(1) and for failure to state a
claim under Rule 12(b)(6), advancing a "smorgasbord of
arguments." ECF 59 at 41.' Specifically, defendants
asserted that the City lacked standing to pursue the suit
and, in particular, to sue the President (ECF 17 at 25-32);
the FAM amendments were not reviewable under the APA (see
Id. at 33-34); the FAM revisions were not a reviewable
"final agency action" (id. at 36-41); the
FAM revisions were exempt from the APA's
notice-and-comment requirement (id. at 41-42); and,
the FAM changes did not have retroactive effect. Id.
at 42-44. The government also moved to dismiss plaintiffs
constitutional claim, arguing that the City had not alleged
sufficient facts to state a plausible equal protection
violation. See Id. at 44-49. The City opposed that
motion (ECF 25), and defendants replied. ECF 56. In addition,
the Court received three amicus briefs from a total of
thirty-two amici, all in support of the City. ECF 49; ECF 51;
noted, 1 denied defendants' motion to dismiss in a
Memorandum Opinion and Order of September 20, 2019. ECF 59;
ECF 60. I determined that the City satisfied the requirements
of Article III standing to challenge the Manual's
amendments and to sue President Trump in his official
capacity. ECF 59 at 36, 38. As for the City's APA claims,
I concluded that the FAM change was reviewable, and that the
City had plausibly alleged that the revisions were
impermissibly retroactive (id. at 59) and
procedurally invalid. Id. at 68. In addition, I
concluded that the City's allegations were sufficient to
state plausible equal protection claims. 'Id. at
import here, the Court observed that there is "little
daylight" between this case and Trump v. Hawaii,
___ U.S. ___, 138 S.Ct. 2392 (2018), and
therefore "the Court is limited to the
'circumscribed judicial inquiry,' asking only if the
FAM changes 'can reasonably be understood to result from
a justification independent of unconstitutional
grounds.'" ECF 59 at 77 (quoting Hawaii,
138 S.Ct. at 2420). But, as I explained, Hawaii
"d[id] not foreclose plaintiffs equal protection
claim." Id. at 77. I stated, id:
Perhaps plaintiff will unearth evidence during discovery
demonstrating that defendants were driven by nothing more
than "a bare... desire to harm a politically unpopular
group." Moreno, 413 U.S. at 534. Or, perhaps
defendants will produce evidence that the revisions to the
FAM have a legitimate basis. But, at this juncture, there is
no evidence as to why defendants amended the Manual.
October 10, 2019, defendants filed a "Notice Of
Regulatory Action," advising that the State Department
had published an interim final rule amending its regulation
governing the application of the public charge provision. ECF
64 ("Notice"); see 84 Fed. Reg. 54996
(Oct. 11, 2019) In the Notice, defendants indicated
that the amendments would take effect on October 15, 2019, at
which point the State Department would also issue new.
revisions to the FAM that would supersede the January 2018
guidance. ECF 64. However, the publication of a new edition
of the FAM "has been delayed," and the January 2018
guidance remains in effect. ECF 75-1 at 8.
filed an answer to the Complaint on October 20, 2019. ECF 68
(the "Answer"). Thereafter, on November 5, 2019,
the Court issued a Scheduling Order, pursuant to Local Rule
103.9. ECF 69. The Scheduling Order contemplates both fact
and expert discovery. It authorizes ten hours of depositions
per side for fact witnesses. Id. at 3. But, it
provides that either party may seek a modification of the
discovery deadlines included in the Scheduling Order by
filing a motion with the Court on or before November 19,
2019. Id. at 1.
November 15, 2019, prior to the modification deadline, the
City served requests for production of documents on
defendants. See ECF 81-1 ("Plaintiffs First Set
Of Requests For Production To All Defendants"). The City
also propounded two sets of interrogatories, one directed to
President Trump and the other directed to the State
Department and Secretary Pompeo. ECF 81-2 ("Plaintiffs
First Set Of Interrogatories To President Donald J.
Trump"); ECF 81-3 ("Plaintiffs First Set Of
Interrogatories To Secretary Michael R. Pompeo And The State
November 18, 2019, the government filed the Motion, seeking
to limit discovery to the production of the administrative
record and to stay further discovery in the interim. ECF 75.
The City responded to the Motion (ECF 81), and defendants
replied. ECF 82.
parties also submitted a "Joint Status Report, Including
Plaintiffs Request To Modify Scheduling Order." ECF 80
("Status Report"). In the Status Report, the
parties acknowledged that they "disagree[d] on the scope
and manner of discovery[.]" Id. at 1. The City
asked the Court to shift several deadlines and requested an
increase in deposition hours, to a total of fifty hours per
side for fact witnesses. Id. at 4. In contrast,
defendants reaffirmed their belief that "the Court's
review of this action ...